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CONSTITUTIONAL LAW REVIEW

POWERS & STRUCTURE OF GOVERNMENT

DAVID vs. MACAPAGAL ARROYO


G.R. No. 171396

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.
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: 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.

She cited the following facts as bases:

1. 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;
2. these conspirators have repeatedly tried to bring down the President;
3. the claims of these elements have been recklessly magnified by certain segments of the national media;
4. 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;
5. these actions are adversely affecting the economy;
6. 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;
7. 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;
8. 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;

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

9. 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 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;
10. these conspirators have repeatedly tried to bring down our republican government;
11. the claims of these elements have been recklessly magnified by certain segments of the national media;
12. 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;
13. these actions are adversely affecting the economy;
14. 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;
15. Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government;
16. 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;
17. 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.
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. 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. 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.

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.

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 anti-Arroyo 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.
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.

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.

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 mock-ups 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.

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.

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.

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.

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 Dasmari as, 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) it is 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 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.

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.

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 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d)
Section 17[20] 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, petitioner Loren 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:

PROCEDURAL:
1. Whether the issuance of PP 1021 renders the petitions moot and academic.
2. Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and
171424 (Legarda) have legal standing.
SUBSTANTIVE:
1. Whether the Supreme Court can review the factual bases of PP 1017.
2. Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

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. 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.
But the power of judicial review does not repose upon the courts a self-starting capacity. 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.
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. 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,so that a
declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness.

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.

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;second, the exceptional character of
the situation and the paramount public interest is involved;third, when 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.

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.
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. 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. 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.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.

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, 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, however the people are the real
parties. It 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.

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 in Tileston 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, Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]

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 �far-reaching 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:
a. 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;
b. 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;
c. 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,[55] that 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) the cases involve constitutional
issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens,
there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) 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 Court�s attitude toward legal standing. In Kilosbayan, Inc. v. Morato,
the Court ruled that the status of Kilosbayan as a people�s 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, 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 President�s 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 Ta�ada 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, KMU�s 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.�

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 people[68] but he may be removed from office only in the mode provided by law and that is
by impeachment.[69]

B. SUBSTANTIVE - 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 President�s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v. Baker and Montenegro v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72]
Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile. 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, 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. In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile. 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. 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 President�s �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 Court�s 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 of power but also of
duty.[82]

As to how the Court may inquire into the President�s exercise of power, Lansang adopted the test that �judicial inquiry can go no
further than to satisfy the Court not that the President�s 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 President�s 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 Arroyo�s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A
reading of the Solicitor General�s 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.

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 people�s
first intention is that the State shall not perish.[86]

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]

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.� Nicollo Machiavelli�s 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: 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.� [93] Watkins 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
short�Dictatorship should always be strictly legitimate in character�Final 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.�
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]

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 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. 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 Lock�s �theory of prerogative,� to
Watkins� doctrine of �constitutional dictatorship� and, eventually, to McIlwain�s �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 Jackson�s �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.

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 in free speech cases, also known under the American Law as First Amendment cases.
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,[104] the 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.� In Broadrick 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 law�s �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: The 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 the relative 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.
Constitutional Basis 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
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 President�s 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. 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.

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. 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.

The Constitution 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 Office�s 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 President�s authority to declare a �state of rebellion� (in Sanlakas)
and the authority to proclaim a state of national emergency. While President Arroyo�s 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 Arroyo�s 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 State�s 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,[114] an 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 Commander-in-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.

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 Police[118] under the Department of Interior
and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casi�o, 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 Arroyo�s 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.

Power to Take Over


The pertinent provision of PP 1017 states: 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.

This is an area that needs delineation. A distinction must be drawn between the Presidents authority to declare a state of national emergency
and to exercise 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 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: (1) There must be a war
or other emergency; (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.

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 President�s 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 nation�s 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 President�s 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:

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.

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.�
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.
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.

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 20thAnniversary of People Power I. The 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.

A perusal of the �direct injuries� allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant to
G.O. No. 5, of PP 1017. 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?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused[135] 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
President�s 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 country�s terrorist is another country�s 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 non-state 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 vice-versa.
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 terrorists-freedom 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 temporal x 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 are necessary and
appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.

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 Account[144] 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. 880[145]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; (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;

Neither of the two (2) exceptions mentioned above justifies petitioner David�s warrantless arrest. During the inquest for the
charges of inciting to sedition andviolation 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]
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 seditionand violation 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 KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of Malaca�ang�s 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 person�s 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, the Daily Tribune�s 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 occupantthereof 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. And Section
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 Staff[152] 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.[153]
Undoubtedly, 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]
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune�s offices and the seizure of its
materials for publication and other papers are illegal; and that the same are inadmissible �for any purpose.
Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be
condoned.
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. Panganiban�s 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 1017�s 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 AFP�s 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 people�s 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.

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.

UDK-15143 January 21, 2015


IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY MOVEMENT VS.
ABOLITION OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF FISCAL AUTONOMY.

This case involves the proposed bills abolishing the Judiciary Development Fund1 and replacing it with the "Judiciary Support Fund." Funds
collected from the proposed Judiciary Support Fund shall be remitted to the national treasury and Congress shall determine how the funds
will be used.2

Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of mandamus in order to compel this court to exercise its judicial
independence and fiscal autonomy against the perceived hostility of Congress.3

This matter was raised to this court through the letter4 dated August 27, 2014, signed by Mijares and addressed to the Chief Justice and the
Associate Justices of the Supreme Court. The letter is captioned:

Petition for Mandamus with Manifestation to invoke the Judicial Independence and Fiscal Autonomy as mandated under the Constitution5

The letter was referred to the Clerk of Court En Banc for appropriate action.6 It was then docketed as UDK-15143.7

In the letter-petition, Mijares alleges that he is "a Filipino citizen, and a concerned taxpayer[.]"8 He filed this petition as part of his "continuing
crusade to defend and uphold the Constitution"9 because he believes in the rule of law.10He is concerned about the threats against the
judiciary after this court promulgated Priority Development Assistance Fund11 case on November 19, 2013 and Disbursement Acceleration
Program12 case on July 1, 2014.

The complaint implied that certain acts of members of Congress and the President after the promulgation of these cases show a threat to
judicial independence.

In the first week of July 2014, Ilocos Norte Representative Rodolfo Fariñas filed House Bill No. 4690, which would require this court to remit
its Judiciary Development Fund collections to the national treasury.13

A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed House Bill No. 4738 entitled "The Act Creating the Judicial
Support Fund (JSF) under the National Treasury, repealing for the purpose Presidential Decree No. 1949."14

On the same day, President Benigno Simeon C. Aquino III addressed the nation:

My message to the Supreme Court: We do not want two equal branches of government to go head to head, needing a third branch to step in
to intervene. We find it difficult to understand your decision. You had done something similar in the past, and you tried to do it again; there
are even those of the opinion that what you attempted to commit was graver, if we were to base it on your decision. Abiding by the principle
of "presumption of regularity," we assumed that you did the right thing; after all, you are the ones who should ostensibly have a better
understanding of the law. And now, when we use the same mechanism—which, you yourselves have admitted, benefit our
countrymen—why is it then that we are wrong?

We believe that the majority of you, like us, want only the best for the Filipino people. To the honorable justices of the Supreme Court: Help
us help our countrymen. We ask that you review your decision, this time taking into consideration the points I have raised tonight. The nation
hopes for your careful deliberation and response. And I hope that once you’ve examined the arguments I will submit, regarding the law and
about our economy, solidarity will ensue—thus strengthening the entire government’s capability to push for the interests of the nation.15

The issue for resolution is whether petitioner Rolly Mijares has sufficiently shown grounds for this court to grant the petition and issue a writ
of mandamus.

Petitioner argues that Congress "gravely abused its discretion with a blatant usurpation of judicial independence and fiscal autonomy of the
Supreme Court."16

Petitioner points out that Congress is exercising its power "in an arbitrary and despotic manner by reason of passion or personal hostility by
abolishing the ‘Judiciary Development Fund’ (JDF) of the Supreme Court."17

With regard to his prayer for the issuance of the writ of mandamus, petitioner avers that Congress should not act as "wreckers of the law"18
by threatening "to clip the powers of the High Tribunal[.]"19 Congress committed a "blunder of monumental proportions"20 when it reduced the
judiciary’s 2015 budget.21

Petitioner prays that this court exercise its powers to "REVOKE/ABROGATE and EXPUNGE whatever irreconcilable contravention of
existing laws affecting the judicial independence and fiscal autonomy as mandated under the Constitution to better serve public interest and
general welfare of the people."22

This court resolves to deny the petition.

The power of judicial review, like all powers granted by the Constitution, is subject to certain limitations. Petitioner must comply with all the
requisites for judicial review before this court may take cognizance of the case. The requisites are:

(1) there must be an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to question 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.23

Petitioner’s failure to comply with the first two requisites warrants the outright dismissal of this petition.

The petition does not comply with the requisites of judicial review - No actual case or controversy - Article VIII, Section 1 of the
Constitution provides that: ARTICLE VIII - Judicial Department 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. (Emphasis supplied)

One of the requirements for this court to exercise its power of judicial review is the existence of an actual controversy. This means that there
must be "an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion."24As emphasized by this court in Information Technology Foundation of the Phils. v. Commission
on Elections:25

It is well-established in this jurisdiction that ". . . for a court to exercise its power of adjudication, there must be an actual case or controversy
— one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. . . . [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging." The controversy must be justiciable —
definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a
merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.26

For this court to rule on constitutional issues, there must first be a justiciable controversy. Pleadings before this court must show a violation
of an existing legal right or a controversy that is ripe for judicial determination. In the concurring opinion in Belgica v. Ochoa:
Basic in litigation raising constitutional issues is the requirement that there must be an actual case or controversy. This Court cannot render
an advisory opinion. We assume that the Constitution binds all other constitutional departments, instrumentalities, and organs. We are
aware that in the exercise of their various powers, they do interpret the text of the Constitution in the light of contemporary needs that they
should address. A policy that reduces this Court to an adviser for official acts by the other departments that have not yet been done would
unnecessarily tax our resources. It is inconsistent with our role as final arbiter and adjudicator and weakens the entire system of the Rule of
Law. Our power of judicial review is a duty to make a final and binding construction of law. This power should generally be reserved when the
departments have exhausted any and all acts that would remedy any perceived violation of right. The rationale that defines the extent of our
doctrines laying down exceptions to our rules on justiciability are clear: Not only should the pleadings show a convincing violation of a right,
but the impact should be shown to be so grave, imminent, and irreparable that any delayed exercise of judicial review or deference would
undermine fundamental principles that should be enjoyed by the party complaining or the constituents that they legitimately represent.27
(Emphasis supplied)

The reason for this requirement was explained in Angara v. Electoral Commission:28

Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More
than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide
by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in the executive and legislative departments of the government.29

Petitioner’s allegations show that he wants this court to strike down the proposed bills abolishing the Judiciary Development Fund. This court,
however, must act only within its powers granted under the Constitution. This court is not empowered to review proposed bills because a bill
is not a law.

Montesclaros v. COMELEC30 involved the postponement of the 2002 Sangguniang Kabataan Elections and the lowering of the age
requirement in the Sangguniang Kabataan "to at least 15 but not more than 18 years of age."31Montesclaros and other parties filed a petition
for certiorari, prohibition, and mandamus with prayer for the issuance of a temporary restraining order.32 One of the reliefs prayed for was:

a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents’ issuances, orders
and actions and the like in postponing the May 6, 2002 SK elections.33

This court held that:

. . . petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and should it be
postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from passing laws and issuing
resolutions and orders that would lower the membership age in the SK. . . .

Petitioners’ prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does not present
an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A proposed bill creates no right
and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitution alright or duty. The
Court has no power to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo. . . .

Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its power of
judicial review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the legislative mill
according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress, the reconciliation by the
Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by each chamber of Congress. Absent
a clear violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of
judicial review over the internal processes or procedures of Congress.

. . . To do so would destroy the delicate system of checks and balances finely crafted by the Constitution for the three co-equal,
coordinate and independent branches of government.

Similar to Montesclaros, petitioner is asking this court to stop Congress from passing laws that will abolish the Judiciary Development Fund.
This court has explained that the filing of bills is within the legislative power of Congress and is "not subject to judicial restraint[.]"35 A
proposed bill produces no legal effects until it is passed into law. Under the Constitution, the judiciary is mandated to interpret laws. It cannot
speculate on the constitutionality or unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere speculations or
issues that are not ripe for judicial determination.36 The petition, therefore, does not present any actual case or controversy that is ripe for
this court’s determination. Petitioner has no legal standing

Even assuming that there is an actual case or controversy that this court must resolve, petitioner has no legal standing to question the
validity of the proposed bill. The rule on legal standing has been discussed in David v. Macapagal-Arroyo:37

Locus standi is defined as "a right of appearance in a court of justice on a given question." 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." Succinctly put, the plaintiff’s
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."

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, 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, Manila Race Horse Trainers’ Association v. De la
Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.38

Petitioner has not shown that he has sustained or will sustain a direct injury if the proposed bill is passed into law. While his concern for
judicial independence is laudable, it does not, by itself, clothe him with the requisite standing to question the constitutionality of a proposed
bill that may only affect the judiciary.

This court, however, has occasionally relaxed the rules on standing when the issues involved are of "transcendental importance" to the
public. Specifically, this court has stated that:

the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of transcendental importance, of overreaching significance to
society, or of paramount public interest.39

Transcendental importance is not defined in our jurisprudence, thus, in Francisco v. House of Representatives:40

There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds 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 other party with a more direct and specific interest in raising the questions being raised.41
A mere invocation of transcendental importance in the pleading is not enough for this court to set aside procedural rules:

Whether an issue is of transcendental importance is a matter determined by this court on a case-to-case basis. An allegation of
transcendental importance must be supported by the proper allegations.42

None of the determinants in Francisco are present in this case. The events feared by petitioner are merely speculative and conjectural.

In addition to the determinants in Francisco, it must also be shown that there is a clear or imminent threat to fundamental rights. In an
opinion in Imbong v. Ochoa:43

The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared unconstitutional in whole or in any of its parts
given the petitions filed in this case.

None of the petitions properly present an "actual case or controversy," which deserves the exercise of our awesome power of judicial review.
It is our duty not torule on the abstract and speculative issues barren of actual facts. These consolidated petitions, which contain bare
allegations, do not provide the proper venue to decide on fundamental issues. The law in question is needed social legislation.

That we rule on these special civil actions for certiorari and prohibition — which amounts to a pre-enforcement free-wheeling facial review of
the statute and the implementing rules and regulations — is very bad precedent. The issues are far from justiciable. Petitioners claim in their
class suits that they entirely represent a whole religion, the Filipino nation and, worse, all the unborn. The intervenors also claim the same
representation: Filipinos and Catholics. Many of the petitions also sue the President of the Republic.

We should apply our rules rigorously and dismiss these cases. The transcendental importance of the issues they want us to decide will be
better served when we wait for the proper cases with the proper parties suffering real, actual or more imminent injury. There is no showing of
an injury so great and so imminent that we cannot wait for these cases.44 (Emphasis supplied)

The events feared by petitioner are contingent on the passing of the proposed bill in Congress. The threat of imminent injury is not yet
manifest since there is no guarantee that the bill will even be passed into law. There is no transcendental interest in this case to justify the
relaxation of technical rules.

Requisites for the issuance of a writ of mandamus not shown Rule 65, Section 3 of the 1997 Rules of Civil Procedure provides that:
Rule 65 - CERTIORARI, PROHIBITION AND MANDAMUS. SEC. 3. Petition for mandamus.— When any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to
be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

The writ of mandamus will issue when the act sought to be performed is ministerial.45 An act is ministerial when it does not require the
exercise of judgment and the act is performed in compliance with a legal mandate.46 In a petition for mandamus, the burden of proof is on
petitioner to show that one is entitled to the performance of a legal right and that respondent has a corresponding duty to perform the act.47
Mandamus will not lie "to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by law."48

In this case, petitioner has not shown how he is entitled to the relief prayed for. Hence, this court cannot be compelled to exercise its power
of judicial review since there is no actual case or controversy.

Final note

The judiciary is the weakest branch of government. It is true that courts have power to declare what law is given a set of facts, but it does not
have an army to enforce its writs. Courts do not have the power of the purse. "Except for a constitutional provision that requires that the
budget of the judiciary should not go below the appropriation for the previous year, it is beholden to the Congress depending on how low the
budget is."49

Despite being the third co-equal branch of the government, the judiciary enjoys less than 1%50 of the total budget for the national
government. Specifically, it was a mere 0.82% in 2014,51 0.85% in 2013,52 0.83% in 2012,53 and 0.83% in 2011.54

Maintenance and Other Operating Expenses or MOOE "pays for sundry matters such as utility payments, paper, gasoline and others."55 The
MOOE granted to the lower courts in 2014 was ₱1,220,905,000.00.56 While this might seem like a large amount, the amount significantly
dwindles when divided among all lower courts in the country. Per the 2014 General Appropriations Act (GAA), the approximate monthly
MOOE for all courts are estimated as follows:

In comparison, the 2014 MOOE allocation for the House of Representatives was ₱3,386,439,000.0058 or about 282.2 million per month for
the maintenance and operation of the House of Representatives compound in Batasan Hills. Even if this amount was divided equally among
the 234 legislative districts, a representative’s office space would still have a monthly MOOE allocation of approximately ₱1.2 million, which
is significantly higher than the average ₱46,000.00 allocated monthly to each trial court.

It was only in 2013 that the budget allocated to the judiciary included an item for the construction, rehabilitation, and repair of the halls of
justice in the capital outlay. The amount allocated was ₱1 million.59

In 2014, there was no item for the construction, rehabilitation, and repair of the halls of justice.60 This allocation would have been used to
help fund the repair of existing halls of justice and the construction of new halls of justice in the entire country, including those courts
destroyed by Typhoon Yolanda and the 2013 earthquake.

The entire budget for the judiciary, however, does not only come from the national government. The Constitution grants fiscal autonomy to
the judiciary to maintain its independence.61 In Bengzon v. Drilon:62

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.63

Courts, therefore, must also be accountable with their own budget. The Judiciary Development Fund, used to augment the expenses of the
judiciary, is regularly accounted for by this court on a quarterly basis. The financial reports are readily available at the Supreme Court
website.64 These funds, however, are still not enough to meet the expenses of lower courts and guarantee credible compensation for their
personnel. The reality is that halls of justice exist because we rely on the generosity of local government units that provide additional subsidy
to our judges.65 If not, the budget for the construction, repair, and rehabilitation of halls of justice is with the Department of Justice.66

As a result, our fiscal autonomy and judicial independence are often undermined by low levels of budgetary outlay, the lack of provision for
maintenance and operating expenses, and the reliance on local government units and the Department of Justice.

"Courts are not constitutionally built to do political lobbying. By constitutional design, it is a co-equal department to the Congress and the
Executive. By temperament, our arguments are legal, not political. We are best when we lay down all our premises in the finding of facts,
interpretation of the law and understanding of precedents. We are not trained .to produce a political statement or a media release."67

"Because of the nature of courts, that is - that it has to decide in favor of one party, we may not have a political base. Certainly, we should not
even consider building a political base. All we have is an abiding faith that we should do what we could to ensure that the Rule of Law
prevails. It seems that we have no champions when it comes to ensuring the material basis for fiscal autonomy or judicial independence."68
For this reason, we appreciate petitioner's concern for the judiciary. It is often only through the vigilance of private citizens that issues relating
to the judiciary can be discussed in the political sphere. Unfortunately, the remedy he seeks cannot be granted by this court. But his crusade
is not a lost cause. Considering that what he seeks to be struck down is a proposed bill, it would be better for him to air his concerns by
lobbying in Congress. There, he may discover the representatives and senators who may have a similar enthusiastic response to truly
making the needed investments in the Rule of Law. WHEREFORE, the petition is DISMISSED.

G.R. No. 205875 June 30, 2015

LIBERTY BROADCASTING NETWORK, INC., now known as WI-TRIBE TELECOMS, INC., Petitioner,
vs.
ATLOCOM WIRELESS SYSTEM, INC., Respondent.

x-----------------------x

G.R. No. 208916

NATIONAL TELECOMMUNICATIONS COMMISSION, Petitioner,


vs.
ATLOCOM WIRELESS SYSTEM, INC., Respondent.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before us assail the Decision1 dated June 29, 2012 and Resolution2 dated February 18, 2013 of the Court of
Appeals (CA) in CA-G.R. SP No. 119868. The CA reversed and set aside the Orders3dated December 9, 2010 and March 21, 2011 of the
Regional Trial Court (RTC) of Quezon City, Branch 95 denying the application for a writ of Prohibitory or mandatory injunction in Civil Case
No. Q-09-65566.

Antecedent Facts

Atlocom Wireless System, Inc. (Atlocom) is a grantee of a legislative franchise under Republic Act (R.A.) No. 8605.4On October 8, 2003, the
National Telecommunications Commission (NTC) issued an Order5 in NTC Case No. 98-158 relative to the application of Atlocom for a
Certificate of Public Convenience (CPC), as follows:
WHEREFORE, it appearing that applicant is financially and technically capable of undertaking the proposed project and that the operation
thereof will promote the interest of the people in Metro Manila, in a proper and suitable manner, the Commission hereby grants to herein
applicant ATLOCOM WIRELESS SYSTEM, INC. a Provisional Authority (PA) to install, operate and maintain a Multi-Point Multi-Channel
Distribution System [MMDS] in METRO MANILA, subject to the assignment of frequency by the Frequency Management Division of t his
Commission and to the following –CONDITIONS

As stated in the above order, the PA shall be valid for a period of eighteen (18)months, or until April 8, 2005. In a letter7 dated April 5, 2004,
Atlocom thru its counsel requested for "an extension of time of the allocation of the above-enumerated frequencies and for the period for the
construction and installation of the radio stations in the condition no. 2 of the Order." Earlier, Atlocom filed an Application for Permit to Import8
the necessary equipment. Atlocom followed up its application for extension of PA through a letter9 dated June 2, 2005 addressed to Deputy
Commissioner Jorge V. Sarmiento. Subsequently, Atlocom filed a Motion for Extension of Provisional Authority10 in NTC Case No. 98-158 on
March 3, 2005. On August 23, 2005, NTC issued Memorandum Circular No. (MC) 06-08-200511 re-allocating the following bands for
broadband wireless access for fixed, nomadic and mobile networks:

• 450-470 Mhz

• 1900 - 1910.MHz

• 1980-1990 MHz

• 2400 - 2483 MHz

• 2500 - 2700 MHz

• 3400-3600 MHz

• 5150-5350 MHz

• 5470-5850 MHz

• 10150 - 10650 MHz

On December 23, 2008, NTC denied Atlocom's motion for extension of PA, citing the re-allocation of MMDS frequencies for Broadband
Wireless Access in accordance with MC 06-08-2005 and the unavailability of other alternative frequencies.12
On September 8, 2009, Atlocom filed in the RTC a Petition13 to enjoin the implementation of MC 06-08-2005 and reinstate the frequencies
of Atlocom. It was further prayed that after hearing the court render judgment declaring the said issuance as null and void because NTC
unlawfully deprived Atlocom of the right to its assigned frequencies without notice and hearing. The case was docketed as Civil Case No.
Q-09-65566.

Liberty Broadcasting Network, Inc. (LBNI), also a grantee of a legislative franchise (R.A. No. 1553, as amended by R.A. No. 4154) for radio
and television broadcasting, as well as radio stations for international and domestic communications of all types and services, and holder of
a Certificate of Public Convenience and Necessity (CPCN) to operate a radio communications network, was allowed to intervene in the case,
joining the defendant NTC in opposing Atlocom's claims. Pursuant to MC 06-08-2005, frequency bands 2535-2545 MHz and 2565-2595
MHz were re-allocated and assigned to LBNI, which covered the 2572-2596 MHz being claimed by Atlocom as allegedly assigned to it.

Per Certification14 dated October 22, 2003 issued by Alvin N. Blanco, Chief, Broadcast Services Division of NTC, the following frequencies
were "identified" for Atlocom's MMDS (Metro Manila) system: -

C3 2572 - 2578 Mhz

D3 2578 - 2584 Mhz

C4 2584 - 2590 Mhz

D4 2590 - 2596 Mhz

On December 9, 2010, the RTC, after due hearing, issued an Order denying Atlocom's application for a writ of preliminary prohibitory or
mandatory injunction. Atlocom filed a motion for reconsideration but it was likewise denied by the RTC under Order dated March 21, 2011.

In a petition for certiorari filed before the CA, Atlocom questioned the validity of the aforesaid orders of the RTC.

In its Resolution15 dated August 12, 2011, the CA denied Atlocom's prayer for the issuance of a writ of preliminary prohibitory injunction and
its alternative prayer for a provisional mandatory injunction.

However, in its Decision dated June 29, 2012, the CA ruled in favor of Atlocom and reversed the RTC's denial of application for preliminary
injunction. The fallo of the decision reads:

WHEREFORE, premises considered, the petition is GRANTED.


The assailed Orders dated December 9, 2010 and March 21, 2011 of the

Regional Trial Court (RTC) of Quezon City,. Branch 95 are hereby REVERSED and SET ASIDE. The plea for the issuance of a Preliminary
Prohibitory Injunction is GRANTED. Let therefore a writ of preliminary prohibitory injunction issue enjoining Respondent NTC from
il_I1plementing Memorandum Circular No. 06-08-2005, insofar as the frequencies ranging from 2572-2596 Mhz are concerned and for its
Co-Respondent LBNI from using the said frequencies during the pendency of Civil Case No. Q-09-65566 pending before Branch 95 of the
Regional Trial Court of Quezon City upon the posting of a bond in the amount of Php 200,000.00 to answer for all damages which they may
sustain by reason of the injunction if the RTC should finally decide that petitioner is not entitled thereto. The alternative plea for a writ of
Preliminary Mandatory Injunction is DENIED.

SO ORDERED.16

LBNI filed a Motion for Reconsideration with Ad Cautelam Offer to File Counter-Bond and Addendum to Motion for Reconsideration with Ad
Cautelam Offer to File Counter-Bond. NTC also filed a Motion for Reconsideration and Supplemental Motion for Reconsideration. The CA
denied these motions.

LBNI filed its petition (G.R. No. 205875) in this Court on April 22, 2013. Acting on LBNI's motion for the issuance of a temporary restraining
order (TRO) and/or writ of preliminary injunction, we issued a TRO enjoining the implementation of the writ of preliminary injunction issued
by the CA, conditioned upon LBNI's posting of a cash bond in the sum of ₱300,000.00.

On April 18, 2013, NTC filed its separate petition (G.R. No. 208916) for review from the same CA Decision and Resolution. We ordered the
consolidation of the two cases as they arose from the same factual setting, involve the same parties and raise identical issues.

Issues

The main issues to be resolved are: (1) whether Atlocom complied with the requisites for issuance of a writ of preliminary injunction; and (2)
whether LBNI's motion to file counter-bond was correctly denied by the CA.

Specifically, LBNI asserts that the CA erred: (1) in finding that the NTC did not observe due process when it issued MC 06-08-2005 and
basing such conclusion on a mistaken notion that the grant of PA is tantamount to a frequency assignment; (2) in failing to recognize that
Atlocom has not sufficiently established its claim that it had been assigned the 2572-2596 frequency bands by the NTC; (3) in granting the
provisional injunctive writ that in effect pre-judged the civil case pending in the RTC; and (4) in denying LBNI's motion to file counter-bond on
the basis of a technical conclusion it is not qualified to make in the first place.
NTC faults the CA in finding that Atlocom's right to due process was violated because it was not notified of the hearing prior to the issuance
of MC 06-08-2005, and concluding that Atlocom has a clear and unmistakable property right over the 2572-2596 frequency range.

Our Ruling

The petitions are meritorious.

A preliminary injunction is defined as "[a]n order granted at any stage of an action prior to the judgment or final order, requiring a party or a
court, agency or a person to refrain from a particular act or acts."17 It may be a prohibitory injunction, which requires a party to refrain from
doing a particular act, or a mandatory injunction, which commands a party to perform a positive act to correct a wrong in the past.18 It is a
provisional remedy that a party may resort to in order to preserve and protect certain rights and interests during the pendency of an action.19

Section 3, Rule 58 of the Rules of Court provides:

SEC. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work
injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act
or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

The following requisites must be proved before a writ of preliminary injunction will issue: (1) The applicant must have a clear and
unmistakable right to be protected, that is, a right in esse; (2) There is a material and substantial invasion of such right; (3) There is an urgent
need for the writ to prevent irreparable injury to the applicant; and ( 4) No other ordinary, speedy, and adequate remedy exists to prevent the
infliction of irreparable injury.20

The grant or denial of a writ of preliminary injunction is discretionary upon the trial court because the assessment and evaluation of evidence
towards that end involve findings of fact left to the said court for its conclusive determination. For this reason, the grant or denial of a writ of
preliminary injunction shall not be disturbed unless it was issued with grave abuse of discretion amounting to lack or in excess of
jurisdiction.21

In denying Atlocom's application for a writ of preliminary injunction, the RTC held that Atlocom failed to demonstrate a clear and
unmistakable legal right thereto, as evidence showed Atlocom has no more right to be protected considering that its PA had already expired
and its application for extension was subsequently denied by the NTC. As to the claim of violation of right to due process, the R TC found
that prior to the issuance of MC 06-08-2005, NTC published a notice of public hearing in The Manila Times, a newspaper of general
circulation, and at the said hearing the participants were given opportunity to be heard through oral arguments and submission of position
papers. Atlocom's alternative plea for a writ of mandatory injunction was likewise denied. According to the RTC, ordering the NTC to
reinstate Atlocom' s frequencies would create an impression that the court had pre-judged the main case by nullifying MC 06-08-2005 as
prayed for by Atlocom in its petition.

However, the CA rendered a contrary ruling. The CA underscored the fact that NTC failed to act upon Atlocom's motion for extension for
more than three years, and concluded that because of NTC's inordinate delay or refusal to renew the PA granted to Atlocom, the latter was
deprived of its right to use the frequencies "granted to it by" the PA. The CA thus held:

In deciding whether to grant an injunction, a court must consider established principles of equity and all the circumstances of the test for
issuing an injunction is whether the facts show a necessity for the intervention of equity in order to protect rights cognizable in equity. Here,
there are factual and legal justification for issuance of the writ of injunction. To reiterate to the point of being pedantic, petitioner's right to its
frequencies is covered by a provisional authority. The provisional authority was withdrawn by MC No. 06-08-2005 without the Respondent
NTC acting on petitioner's plea for previous extensions. The propriety for the issuance of MC No. 06-08-2005 is placed in issue on the
ground of fairness. Petitioner as the rightful grantee thereof has the right, in the meantime, to enjoin its implementation.

We are not unaware of Our Resolution promulgated on August 12, 2011 denying petitioner's plea for the ancillary remedy of both prohibitory
and/or mandatory injunction. Indeed, as of said date, the denial of petitioner's prayer is appropriate. We have now the complete facts of the
case and, as the legal consequence of Our declaration that the RTC committed grave abuse of discretion in issuing the assailed orders, We
consider it proper to enjoin the Respondent NTC from implementing Memorandum Circular No. 06-08-2005, but insofar as the frequencies
ranging from 2572-2596 Mhz are involved and for its Co-Respondent LBNI from using the aforestated frequencies. This is not to preempt the
RTC of whatever judgment it may thereafter issue with respect to the merits of the case before it but is issued in order to maintain the status
quo in view of petitioner's claim of a breach of due process and a continuing violation of its right over the aforestated frequencies.22

The CA explained that since it is only through a frequency that Atlocom can provide adequate broadcast service to the public, the withdrawal
of frequency assignment without observance of due process defeats its legislative grant and reduces Atlocom to a mere repository of
transmitters and equipment devoid of any purpose or value. It cited the following provisions of R.A. No. 8605:
SEC. 3. Prior Approval of the National Telecommunications Commission. - The grantee shall secure from the National Telecommunications
Commission, hereinafter referred to as the Commission, the appropriate permits and licenses for the construction and operation of its
stations, transmitters or facilities and shall not use any frequency in the radio and television spectrum without having been authorized by the
Commission. The Commission, however, shall not unreasonably withhold or delay the grant of any such authority.

The radio spectrum is a finite resource that is a part of the national patrimony and the use thereof is a privilege conferred upon the grantee
by the State and may be withdrawn anytime, after due process.

On the withdrawal of the frequencies previously identified for Atlocom, the CA insisted that NTC did not observe due process, viz.:

While it is true that there was a publication of a Notice of Public Hearing on June 21, 2005 before the issuance of Memorandum Circular No.
06-08-2005 on August 23, 2005, the fact is, the publication or notice was a general one and was not meant to dispose of petitioner's previous
requests for an extension of its provisional authority and/or application for permit to purchase equipment. The order which dealt with these
requests was the Order dated December 23, 2008, which was issued almost four (4) years after the filing of the first request on April 5, 2004
and almost three (3) years from the issuance of Memorandum Circular No. 06-08-2005. Withal and subject to whatever proof it may submit
to the RTC regarding the delay, the Respondent NTC should have first acted on petitioner's requests for extension before setting for public
hearing the re-allocation of the frequencies.23

We do not concur with the CA in holding that NTC's inaction or delay on Atlocom' s application for extension of PA had violated the latter's
right to due process because it resulted in depriving Atlocom of the use of frequencies which were re-allocated through the issuance of MC
06-08-2005. Such declaration rather conveys an inaccurate picture of the regulatory process for public broadcasting and
telecommunications services.

Under existing laws and regulations, it is clear that a frequency assignment is not automatically included in the PA granted by the NTC to an
applicant for a CPC. Thus, the Order dated October 8, 2003 expressly provided that the PA granted to Atlocom, valid for 18 months, is
subject to several conditions, foremost of which is the assignment of frequency by the Frequency Management Division (FMD).

While Atlocom presented a Certification24 dated October 22, 2003 issued by Alvin N. Blanco, Chief of NTC's Broadcast Division, stating that
certain frequencies were "identified" for Atlocom's MMDS (Metro Manila) covering 2572-2596 frequency bands, there is no document
evidencing that these frequencies were actually assigned to Atlocom by the FMD. There is likewise nothing in the records to suggest that
NTC "unreasonably" withheld or delayed authority to use such frequencies identified for Atlocom.

Atlocom blamed NTC's three-year delay in resolving the motion for extension of PA for its inability to use the frequencies identified for its
MMDS, as these were eventually re-allocated in 2005 under MC 06-08-2005. But as Atlocom was fully aware, Section 6 of R.A. No. 8605
provides that the Government may at anytime withdraw the frequency after due process. Records showed that a notice was duly published
and a public hearing was actually conducted on July 12, 2005 by NTC on the proposed Memo Circular: Frequency Band Allocations for
Broadcast Wireless Access. Saidevent was attended by representatives of the different broadcasting and telecommunication companies,
including Atlocom.25 The position papers and feedback submitted by various companies in connection with the proposed memorandum
circular on wireless broadband access were all presented as evidence in the RTC.26 We have held that the essence of due process is simply
an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side.27 The requirements of due
process were thus satisfied by the NTC in the re-allocation of frequency.

Contrary to the CA's pronouncement, the re-allocation of frequency cannot be conditioned on resolution of any pending request for
extension of PA previously granted. Even entities with unexpired PA cannot claim a vested right on a specific frequency assignment. This
proceeds from the nature of its franchise which is not solely for commercial purposes but one imbued with public interest. As earlier quoted,
Atlocom's franchise (R.A. No. 8605) declared the use of radio spectrum as a mere privilege conferred upon the grantee by the State that
may be withdrawn anytime provided that due process is observed. It further emphasized that the radio spectrum is a finite resource and its
use and distribution should be aligned with existing laws and policies.

R.A. No. 7925 likewise recognizes the vital role of telecommunications to national development and security and provides that the radio
frequency shall be managed and directed to serve the public interest. Being a limited resource, the law mandates a periodic review of
frequency allocation.

SEC. 4. Declaration of National Policy. - Telecommunications is essential to the economic development, integrity and security of the
Philippines, and as such shall be developed and administered as to safeguard, enrich and strengthen the economic, cultural, social and
political fabric of the Philippines. The growth and development of telecommunications services shall be pursued in accordance with the
following policies:

c) The radio frequency spectrum is a scarce public resource that shall be administered in the public interest and in accordance with
international agreements and conventions to which the Philippines is a party and granted to the best qualified. The government shall allocate
the spectrum to service providers who will use it efficiently and effectively to meet public demand for telecommunications service and may
avail of new and cost effective technologies in the use of methods for its utilization;

SEC. 15. Radio Frequency Spectrum. - The radio frequency spectrum allocation and assignment shall be subject to periodic review. The use
thereof shall be subject to reasonable spectrum user fees. Where demand for specific frequencies exceed availability, the Commission shall
hold open tenders for the same and ensure wider access to this limited resource.

As a grantee of PA, Atlocom can only invoke the condition in MC 06-08-2005 that "[t]he transfer of previously authorized persons or entities
operating radio stations within the above listed radio frequency bands shall be governed by Rule 603 of MC 3-3-96."28Said rule states:

603. TRANSFER OF AFFECTED AUTHORIZED RADIO FREQUENCY USER

a. The commission shall allocate available radio frequencies for assignment to those affected by the reallocation as a result of the
review of the radio spectrum pursuant to Rule 601.

b. The cost of the transfer to new radio frequencies of affected authorized users shall be borne by the new assignees to the radio
frequency channel/band where the radio frequencies of the previously authorized users fall within.

c. When the transfer to a new set of radio frequencies would require additional radio links, the cost of these links shall also be taken into
consideration.

d. The manner and the cost of the transfer shall be negotiated in good faith between the affected authorized users and the assignees
within 90 days from receipt of notice of relocation.

e. The Commission shall extend all the necessary assistance to all affected authorized users and shall mandate settlement if the parties
fail to come to an agreement within 90 days from receipt of notice of relocation or when warranted under the circumstances.

f. Other means/mode of transmission comparable in quality to the existing facility shall be taken into consideration in the negotiation for
the transfer.

g. Transfer of radio frequency assignment shall only take effect upon activation of service by relocated party using its newly assigned or
relocated frequency as agreed or mandated.

Considering that Atlocom has not even launched its MMDS network nor constructed radio stations, it is doubtful whether Atlocom can
exercise the foregoing rights of an affected frequency user. Neither can Atlocom attribute its non-operational state to the delayed action on
its motion for extension of PA. Among the conditions of its PA is the commencement of the construction and installation of its station within
six months from issuance of the order granting it the provisional authority and its complete three months thereafter. Perusal of the motion for
extension reveals that Atlocom at the time .was still in the process of identifying and finalizing arrangements with its potential investors for
the establishment of a nationwide MMDS network coverage.

Based on its evaluation, the NTC found that: (1) Atlocom filed an application for Permit to Purchase MMDS transmitter on February 9, 2005,
but no permit of any kind was issued to it; (2) In the clarificatory hearing held on September 4, 2006, concerns were raised regarding reports
of foreign equity on Atlocom's capital structure and status of band allocated for MMDS within the 2.5-2.7 Ghz band; and (3) On June 21,
2008, Atlocom is requesting for an allocation of a Digital Terrestrial TV frequency (Ch 14-20 & Ch 21-51) in replacement for their MMDS
frequency, but the NTC thru FMD denied such request because the proposed frequency band for DTT service is not yet approved/allocated.
With the re-allocation of MMDS frequency bands for the Broadband Wireless Access under MC 06-8-2005, and the aforesaid findings, the
NTC en bane decided not to grant the extension sought by Atlocom.

A right to be protected by injunction, means a right clearly founded on or granted by law or is enforceable as a matter of law.29 An injunction
is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse, and which may never
arise, or to restrain an act which does not give rise to a cause of action.30

From the evidence on record, no clear, actual and existing right to the subject frequencies or to the extension of PA had been shown by
Atlocom. Accordingly, no grave abuse of discretion was committed by the RTC in denying Atlocom's application for a writ of preliminary
injunction to restrain the implementation of MC 06-08-2005 insofar as the use of the re-allocated frequencies claimed by Atlocom. The CA
thus seriously erred in reversing the RTC and holding that Atlocom was entitled to injunctive relief due to alleged violation of its right by the
NTC.

A writ of preliminary injunction being an extraordinary event, one deemed as a strong arm of equity or a transcendent remedy, it must be
granted only in the face of actual and existing substantial rights. In the absence of the same, and where facts are shown to be wanting in
bringing the matter within the conditions for its issuance, the ancillary writ must be struck down for having been rendered in grave abuse of
discretion.31

Pursuant to Section 6,32 Rule 5 8 of the 1997 Rules of Civil Procedure, a preliminary injunction may be dissolved if it appears after hearing
that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would
cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by the court on condition that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. Two conditions must concur: first, the court, in the exercise of its discretion,
finds that the continuance of the injunction would cause great damage to the defendant, while the plaintiff can be fully compensated for such
damages as he may suffer; second, the defendant files a counterbond.33

In denying LBNI's offer to file counterbond, the CA relied on the Affidavit34 executed by Rene Rosales, Atlocom's technical consultant, to
refute the earlier Affidavit35 submitted by LBNI, which was executed by its Director for Network Engineering, Edwin C. Mabitazan. Mabitazan
stated that the injunction issued by the CA will result in reducing LBNI's usable bandwidth from 40 Mhz to only 15 Mhz, which is inadequate
to serve LBNI's thousands of subscribers. Mabitazan's opinion should have been given more weight in view of his intimate knowledge of
LBNI' s operations and technical requirements. Moreover, it should be stressed that LBNI's business projections were based on its existing
technical capability which stands to be greatly diminished once the frequency bands re-assigned to it will be reduced as a result of the CA's
injunction order. The possibility of irreparable damage is indeed present, not only in terms of financial losses -the total investment by LBNI
has already reached billions of pesos - but on the reputation of LBNI as a new player in the telecommunications industry for reliability and
dependability of its services. In contrast, whatever damage Atlocom stands to suffer should the injunction be dissolved, can be fully
compensated considering that it has not constructed stations nor launched any network service. No single document was submitted by
Atlocom to show it had actually complied with the conditions of its PA and invested in the establishment of MMDS network, which never
materialized.

In gross abuse of discretion, the CA brushed aside evidence presented by LBNI in support of its offer to file counter-bond, stating that these
were submitted only after the appellate court had rendered its decision granting Atlocom's prayer for preliminary injunction. The CA failed to
consider the fact that it was Atlocom which misled the courts and the NTC in claiming that the subject frequencies had been assigned to it.
The matter was raised by NTC and LBNI only in their motions for reconsideration because it was only at that time when their inquiry from
FMD disclosed that said office had not actually granted a frequency assignment to Atlocom. Thus, NTC in its Supplemental Motion for
Reconsideration, submitted a Certification36 dated August 2, 2012 issued by the FMD Chief, Pricilla F. Demition, together with attached
documents, setting forth the sam facts relativ to Atlocom's non-operational state. Atlocom countered that said evidence was just an
afterthought because the absence of frequency assignment was not mentioned by Engr. Demition when she testified before the RTC on
January 14, 2009 during the hearing on the application for writ of preliminary injunction. Atlocom, however never disputed the findings of the
FMD.

The pertinent portions of the FMD Certification are herein reproduced:

2. In a memo addressed to the Chief, Broadcast Services Division dated January 10, 2006 (copy attached as Annex "B"); signed by then
Deputy Commissioner Jorge V. Sarmiento, an inquiry was made to the Broadcast Services Division (BSD) regarding the status of usage
of the frequency assignments granted to broadcast companies for MMDS use and to provide information thru the FMD of the latest
related information to include among others permits/licenses issued to their favor; such information was needed in view of the
re-allocation of the band in use for BW A (MC No. 06-08-2005);

3. In a memo dated January 12, 2006 (copy attached as Annex "C") in compliance to the January 10, 2006 Memo, BSD's report shows
under the column Latest Permits/License issued, that the latest permit or license issued for A TLOCOM was only its PA dated 10.08.03;

4. In a memo addressed to the Records Verification Committee dated 06 September 2006 (copy attached as Annex "D") signed by then
Commissioner Ronald Olivar Solis, citing a memo dated 21 September 2005 from then DOTC Secretary Leonardo R. Mendoza and
Office Order No. 71-08-2006, the Records Verification Committee was directed to verify the status of several radio frequency bands
therein listed, and to submit its report to include, among others, SUF payments, latest permits, and licenses issued and photocopies of
the same;
5. The Records Verification Committee reported in a memo dated 08 September 2006 (copy attached as Annex "E"), that with respect to
Atlocom Wireless System, Inc., no record on file was found as to station location, frequency, license/permit no., radio station license or
permit to purchase and possess;

6. In a memo addressed to the Acting Chief BSD dated 07 January 2008 by then FMD Acting Chief Engr. Joselito C. Leynes (copy
attached as Annex "F") [w]ith reference to the 03 January 2008 indorsement letter from BSD (copy attached as Annex "G) regarding the
request of Atlocom Wireless System, Inc. for an allocation of a Digital Television (DTT) frequency (copy attached

as Annex "H"), the BSD was informed of the following for guidance:

"that the proposed frequency band from Channel 14-20 and Channel 21-51 is not yet been finally allocated/approved for the
purpose ofDTT operation. Further, in the event that said frequency band re-allocation is approved, only broadcasting company with
existing TV station/s and/or authority to operate is entitled for application/issuance of a DTT frequency channel."

7. A Memo addressed to the Chief, Frequency Management Division dated 27 July 2012 (copy attached as Annex "I") Chief, BSD in
connection with the "certification" issued to Atlocom Wireless System, Inc clarifies the following:

"that the frequencies stated in the subject certification were simply identified as candidate frequencies for the MMDS service under
NTC Case No. 98-158, subject to final frequency assignment by the Frequency Management Division (FMD) of this Commission."
and

"Furthermore inasmuch as frequency assignments covering the band 2500-2700 Mhz are issued by the Frequency Management
Division (FMD), the undersigned is of the view that the determination of the assignment of the subject frequencies to Atlocom
Wireless, or to any other entity, can best be certified by the Frequency Management Division (FMD)"

8. As per NTC Office Order No. 59-07-2003 dated July 30, 2003 (copy attached as Annex "J), all requests, applications requiring
clearance and/or new radio frequency assignments, except for frequencies that have been pre-allocated and/or decentralized, shall be
cleared with the Office of the Commissioner thru the Frequency Management Division:

"Henceforth, except for frequencies that have been pre-allocated and/or decentralized, all requests applications requiring clearance
and/or new radio frequency assignment shall be cleared with the Office of the Commissioner thru the Frequency Management
Division."

9. No records/documents were however found at the Frequency Management Division showing frequency assignment clearance for the
use of ATLOCOM's MMDS system.

In light of all the foregoing established facts, we hold that the CA gravely abused its discretion when it issued a writ of preliminary injunction
against the implementation of MC 06-08-2005 in the absence of a clear legal right on the part of Atlocom, and subsequently denying LBNI' s
offer to file counter bond despite compliance with the requisites provided in Section 6 of Rule 58. However, with our ruling that the writ of
preliminary injunction was improperly issued, hence, null and void, the matter of allowing LBNI to post a counter-bond has been rendered
moot.

A final note. In its Memorandum,37 Atlocom argues that LBNI is part of mass media and its franchise violates Article XVI, Section 11 (1) of the
Constitution38 because it is not wholly-owned by Filipino citizens.39

Unless properly raised and the very /is mota of the case, we do not pass upon constitutional issues. The resolution of the constitutional
issues must be absolutely necessary for the determination of the case.40 In the spirit of deference to the acts of other constitutional
departments and organs, issues before this Court should address only the narrowest issues necessary to determine whether the reliefs
prayed for can be granted. As in this case, reliefs can be determined on procedural issues.

The main issue presented in this case is the validity of Atlocom' s application for a writ of preliminary injunction against the NTC.1âwphi1
This issue can be resolved without passing upon the constitutionality of LBNI' s franchise. The resolution of the issue on LBNI's eligibility
thus has no bearing on whether Atlocom has the right to be granted a frequency allocation for Broadband Wireless Access by the NTC. The
constitutional issue raised by the respondent may be raised and resolved in proper cases when necessary in the future.

WHEREFORE, the petitions are GRANTED. The Decision dated June 29, 2012 and Resolution dated February 18, 2013 of the Court of
Appeals in CA-G.R. SP No. 119868 are REVERSED and SET ASIDE. Consequently, the writ of preliminary injunction issued in said case, if
any, is hereby declared NULL and VOID.

The Orders dated December 9, 2010 and March 21, 2011 of the Regional Trial Court of Quezon City, Branch 95 in Q-09-65566 are hereby
REINSTATED and UPHELD.

The Temporary Restraining Order issued by this Court on April 30, 2013 is hereby made PERMANENT.

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed
Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary General
Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago,
Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of
National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY,
LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS
FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE
OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO
GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA
PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE,
THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,
Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and
representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf;
DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN
SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL
MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH
PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE,
THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,
Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF
LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E.
TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG


MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG),
SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST,
KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA
TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN
(SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA,
TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY
P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO
ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY
(NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE,
THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,
Respondents.

DECISION
CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and
Protect our People from Terrorism," otherwise known as the Human Security Act of 2007,1signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network, Inc., a non-government
organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16,
2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang
Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil
Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas
ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido
Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry
Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and
Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church People’s
Response (PCPR), which were represented by their respective officers5who are also bringing action on their own behalf, filed a petition for
certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6Senator Ma. Ana Consuelo
A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern
Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the filing of the petitions,
Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary
Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces
of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the
Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of
Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP
intelligence and investigative elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
Rules of Court is clear:

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

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two
superfluous.
Petitioners lack locus standi

Locus standi or legal standing requires 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.11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on 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.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement,
and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to
which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and
(3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military;
whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in
actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different
genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated,
necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to
"close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields,"
and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show
any connection between the purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents’ alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National People’s Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law.15 The petition of
BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction
of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said
that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable
of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of
the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on
the existence or non-existence of a fact of which the court has no constructive knowledge.16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is insufficient to substantiate
their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the
CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their
organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US) and the European
Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint
statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US
and EU classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA
9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully
and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casiño, Rafael
Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto,
one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy
statement of the Aquino Administration21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of recent
development is the filing of the first case for proscription under Section 1723 of RA 9372 by the Department of Justice before the Basilan
Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges
against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan
Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes,
Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge
a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing.27
The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties.
Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi.
Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the
slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio
Osmeña III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the
issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of
any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has
nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct
injury as a result of the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is
an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an
exercise of the spending or taxing power of Congress,28 whereas citizen standing must rest on direct and personal interest in the
proceeding.29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the
individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a
direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.
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.30(emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or controversies to
be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion.32

Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy
must be justiciable—definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must
concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or
television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to
rule on a hypothetical problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any specific affirmative action of
the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the religious
freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those
of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide
a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the
Court to intelligently adjudicate the issues.38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo
a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the
constitutionality of the material support statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian
and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged
prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid
constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and
existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a
credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction.
Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and
merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.45 Allegations of
abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally
demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly
excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism46under RA 9372 in that terms
like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are
nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case
since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the
void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases.
They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was
intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application
only to free-speech cases," and are "not appropriate for testing the validity of penal statutes."50 It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague.51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation of criminal statutes is
not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense53 under
the Voter’s Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.54

The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the Estradacase, where the Court found
the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an
"as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its
validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a
vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left
to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of
penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth
have been 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." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it
is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its
face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme
Court pointed out in Younger v. Harris

[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 the relative 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.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and
only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged
to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or
as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits
and will accordingly refrain from that behavior, even though some of it is protected.59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facialinvalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.60

Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a
facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise
of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an
"in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an ‘on-its-face’
invalidation of penal statutes x x x may not be allowed."64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a
penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against
employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have
said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with
crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing
that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.65 (Emphasis
and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to
the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied
to the litigants.

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 law’s "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.66 (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First Amendment,68and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or
speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected
expression."71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of
"terrorism" in RA 9372 is legally impermissible absent an actual or imminent chargeagainst them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as
applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety."72 It stressed that
"statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."73

American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the
specific facts of the case at hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as "among the most important guarantees of liberty under law."75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into play in analyzing an ordinance penalizing
the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two
Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender
commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws;
(2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace;
and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand"
in the definition of terrorism77 must necessarily be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of
the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand."
Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot
recategorize the unprotected conduct into a protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime.
Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts
against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78
illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading
"White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has
never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in
part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.80 Since speech is
not involved here, the Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the
therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said
cases, however, found no basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness
grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited
vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power
neither contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an
extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

G.R. No. 180771 April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g., TOOTHED WHALES, DOLPHINS,
PORPOISES, AND OTHER CETACEAN SPECIES, Joined in and Represented herein by Human Beings Gloria Estenzo Ramos and
Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of God's
Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY JOSE L. ATIENZA, in
his capacity as Secretary of the Department of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR
Regional Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected Seascape Management Board,
Bureau of Fisheries and Aquatic Resources (BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for
Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent,
SUPPLY OILFIELD SERVICES, INC. Respondents.

x-----------------------x

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON YANONG, FRANCISCO
LABID, in their personal capacity and as representatives of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF
FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), JOSE L. ATIENZA, in his capacity
as Secretary of the Department of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as
DENR Regional Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management Board, ALAN
ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-Region VII, DOE Regional Director for Region VIII1
ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY
OILFIELD SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,


a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their personal capacity, alleging that they stand to
benefit or be injured from the judgment on the issues. The human petitioners implead themselves in a representative capacity "as legal
guardians of the lesser life-forms and as responsible stewards of God's Creations."1 They use Oposa v. Factoran, Jr.2 as basis for their claim,
asserting their right to enforce international and domestic environmental laws enacted for their benefit under the concept of stipulation pour
autrui.3As the representatives of Resident Marine Mammals, the human petitioners assert that they have the obligation to build awareness
among the affected residents of Tañon Strait as well as to protect the environment, especially in light of the government's failure, as primary
steward, to do its duty under the doctrine of public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this court will have the opportunity to lower the
threshold for locus standi as an exercise of "epistolary jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to continue to define environmental rights in the
context of actual cases is commendable. However, the space for legal creativity usually required for advocacy of issues of the public interest
is not so unlimited that it should be allowed to undermine the other values protected by current substantive and procedural laws. Even rules
of procedure as currently formulated set the balance between competing interests. We cannot abandon these rules when the necessity is
not clearly and convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for animals through their allegation that they
can speak for them. Obviously, we are asked to accept the premises that (a) they were chosen by the Resident Marine Mammals of Tañon
Strait; (b) they were chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were able to
communicate with them; and (d) they received clear consent from their animal principals that they would wish to use human legal institutions
to pursue their interests. Alternatively, they ask us to acknowledge through judicial notice that the interests that they, the human petitioners,
assert are identical to what the Resident Marine Mammals would assert had they been humans and the legal strategies that they invoked
are the strategies that they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of guardianship between them and all the resident
mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law cannot be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have legal standing to sue with respect to the
issue raised in their pleading. The rules on standing have already been liberalized to take into consideration the difficulties in the assertion of
environmental rights. When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a
civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be authorized by statute to be parties in a civil
action.

Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only
through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided
it be born later with the conditions specified 'in the following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they
have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate
and distinct from that of each shareholder, partner or member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the provisions of the Rules of Court as well as
substantive law to accommodate Resident Marine Mammals or animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A 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. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the
name of the real party in interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in interest.7 When a case is brought to the
courts, the real party in interest must show that another party's act or omission has caused a direct injury, making his or her interest both
material and based on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party in interest, as defined in Rule 3, Section 3
of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express rust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal.(3a)9

The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or actually benefit or suffer from the
judgment, but instead brings a case in favor of an identified real party in interest.10 The representative is an outsider to the cause of action.
Second, the rule provides a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits the coverage
only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that for the Petition of the human petitioners to
prosper, they must show that (a) the Resident Marine Mammals are real parties in interest; and (b) that the human petitioners are authorized
by law or the Rules to act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other cetacean species inhabiting Tañon
Strait."12 While relatively new in Philippine jurisdiction, the issue of whether animals have legal standing before courts has been the subject
of academic discourse in light of the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan explains as the "guardianship model for
nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may obtain judicial review to enforce their
statutory rights and protections: guardianships. With court approval, animal advocacy organizations may bring suit on behalf of nonhuman
animals in the same way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an enforceable right
but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural Objects, Christopher D. Stone asserts that the
environment should possess the right to seek judicial redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate challenges - such as identifying the proper
spokesman -the American legal system is already well-equipped with a reliable mechanism by which nonhumans may obtain standing via a
judicially established guardianship. Stone notes that other speechless - and nonhuman - entities such as corporations, states, estates, and
municipalities have standing to bring suit on their own behalf. There is little reason to fear abuses under this regime as procedures for
removal and substitution, avoiding conflicts of interest, and termination of a guardianship are well established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court indicated that AL VA might have
obtained standing in its own right if it had an established history of dedication to the cause of the humane treatment of animals. It noted that
the Fund for Animals had standing and indicated that another more well-known advocacy organization might have had standing as well. The
court further concluded that an organization's standing is more than a derivative of its history, but history is a relevant consideration where
organizations are not well-established prior to commencing legal action. ALVA was not the proper plaintiff because it could not identify
previous activities demonstrating its recognized activism for and commitment to the dispute independent of its desire to pursue legal action.
The court's analysis suggests that a qualified organization with a demonstrated commitment to a cause could indeed bring suit on behalf of
the speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit organizations with an established history of
dedication to the cause and relevant expertise to serve as official guardians ad !item on behalf of nonhuman animals interests. The American
legal system has numerous mechanisms for representing the rights and interests of nonhumans; any challenges inherent in extending these
pre-existing mechanisms to nonhuman animals are minimal compared to an interest in the proper administration of justice. To adequately
protect the statutory rights of nonhuman animals, the legal system must recognize those statutory rights independent of humans and provide
a viable means of enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been urged on behalf of the
natural environment. 'Such a model is even more compelling as applied to nonhuman animals, because they are sentient beings with the
ability to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally protected nonhumans and
therefore have interests deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the integrity of the federal statutes designed to
protect them, essentially rendering them meaningless. Sensing that laws protecting nonhuman animals would be difficult to enforce,
Congress provided for citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA). Such provisions
are evidence of legislative intent to encourage civic participation on behalf of nonhuman animals. Our law of standing should reflect this
intent and its implication that humans are suitable representatives of the natural environment, which includes nonhuman animals.14
(Emphasis supplied, citation omitted)

When a court allows guardianship as a basis of representation, animals are considered as similarly situated as individuals who have
enforceable rights but, for a legitimate reason (e.g., cognitive disability), are unable to bring suit for themselves. They are also similar to
entities that by their very nature are incapable of speaking for themselves (e.g., corporations, states, and others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having standing to sue and, therefore, may be
properly represented as real parties in interest. The same cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as humans, may feel the need to nurture and
protect them, we cannot go as far as saying we represent their best interests and can, therefore, speak for them before the courts. As
humans, we cannot be so arrogant as to argue that we know the suffering of animals and that we know what remedy they need in the face of
an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court for the Central District of California, Animal
Lovers Volunteer Ass'n v. Weinberger,15 the court held that an emotional response to what humans perceive to be an injury inflicted on an
animal is not within the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of or as a substitute for an actual
injury suffered by the claimant.17 The ability to represent animals was further limited in that case by the need to prove "genuine dedication" to
asserting and protecting animal rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing doctrine further required ALVA to differentiate
its genuine dedication to the humane treatment of animals from the general disdain for animal cruelty shared by the public at large. In doing
so, the court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court indicated that ALVA might have
obtained standing in its own right if it had an established history of dedication to the cause of the humane treatment of animals. It noted that
the Fund for Animals had standing and indicated that another more well-known advocacy organization might have had standing as well. The
court further concluded that an organization's standing is more than a derivative of its history, but history is a relevant consideration where
organizations are not well-established prior to commencing legal action. ALVA was not the proper plaintiff because it could not identify
previous activities demonstrating its recognized activism for and commitment to the dispute independent of its desire to pursue legal action.
The court's analysis suggests that a qualified organization with a demonstrated commitment to a cause could indeed bring suit on behalf of
the speechless in the form of a court-sanctioned guardianship.18(Emphasis supplied, citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human stewardship over the environment in a citizen
suit under the Rules of Procedure for Environmental Cases. A citizen suit allows any Filipino to act as a representative of a party who has
enforceable rights under environmental laws before Philippine courts, and is defined in Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to
enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a
brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the
case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the
Philippines or furnish all affected barangays copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign representation on behalf of animals. To have
done so betrays a very anthropocentric view of environmental advocacy. There is no way that we, humans, can claim to speak for animals let
alone present that they would wish to use our court system, which is designed to ensure that humans seriously carry their responsibility
including ensuring a viable ecology for themselves, which of course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given to the rule on standing. While
representatives are not required to establish direct injury on their part, they should only be allowed to represent after complying with the
following: [I]t is imperative for them to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the interest
of those they represent must be based upon concrete legal rights. It is not sufficient to draw out a perceived interest from a general,
nebulous idea of a potential "injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the appreciation of legal standing in Oposa v.
Factoran22 for environmental cases. In Arigo, I opined that procedural liberality, especially in cases brought by representatives, should be
used with great caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental concerns in light of emerging international
legal principles. While "intergenerational responsibility" is a noble principle, it should not be used to obtain judgments that would preclude
future generations from making their own assessment based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a different set of circumstances. In essence, the unbridled
resort to representative suit will inevitably result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even before they are born, we again restricted
their ability to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be allowed only when a) there is a clear legal
basis for the representative suit; b) there are actual concerns based squarely upon an existing legal right; c) there is no possibility of any
countervailing interests existing within the population represented or those that are yet to be born; and d) there is an absolute necessity for
such standing because there is a threat of catastrophe so imminent that an immediate protective measure is necessary. Better still, in the
light of its costs and risks, we abandon the precedent all together.23 (Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or she who invokes the court's jurisdiction
must be the "owner of the right sought to be enforced." In other words, he or she must have a cause of action. An action may be dismissed
on the ground of lack of cause of action if the person who instituted it is not the real party in interest.24 The term "interest" under the Rules of
Court must refer to a material interest that is not merely a curiosity about or an "interest in the question involved." The interest must be
present and substantial. It is not a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as representative of a .real party in interest. When an
action is prosecuted or defended by a representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to the action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an identified party whose right has been violated,
resulting in some form of damage, and (b) the representative authorized by law or the Rules of Court to represent the victim."

The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under this rule allows any Filipino citizen to
file an action for the enforcement of environmental law on behalf of minors or generations yet unborn. It is essentially a representative suit
that allows persons who are not real parties in interest to institute actions on behalf of the real party in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet unborn is a recognition of this court's ruling in
Oposa v. Factoran. This court recognized the capacity of minors (represented by their parents) to file a class suit on behalf of succeeding
generations based on the concept of intergenerational responsibility to ensure the future generation's access to and enjoyment of [the]
country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting into. question its representativeness.
Second, varying interests may potentially result in arguments that are bordering on political issues, the resolutions of which do not fall upon
this court. Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn may result in the
oversimplification of what may be a complex issue, especially in light of the impossibility of determining future generation's true interests on
the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others. Uninterested persons will argue for the persons they
represent, and the court will decide based on their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata upon them and conclusive upon the
issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its potential to diminish the value of legitimate
environmental rights. Extending the application of "real party in interest" to the Resident Marine Mammals, or animals in general, through a
judicial pronouncement will potentially result in allowing petitions based on mere concern rather than an actual enforcement of a right. It is
impossible for animals to tell humans what their concerns are. At best, humans can only surmise the extent of injury inflicted, if there be any.
Petitions invoking a right and seeking legal redress before this court cannot be a product of guesswork, and representatives have the
responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded arguments"26 on behalf of those they represent.

Creative approaches to fundamental problems should be welcome. However, they should be considered carefully so that no unintended or
unwarranted consequences should follow. I concur with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant
ponencia as it carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human petitioners have no legal
standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk Development Center,. Engarcial, Yanong, and
Labid, have standing both as real parties in interest and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose rights are similarly affected. The
activities undertaken under Service Contract 46 (SC-46) directly affected their source of livelihood, primarily felt through the significant
reduction of their fish harvest.27 The actual, direct, and material damage they suffered, which has potential long-term effects transcending
generations, is a proper subject of a legal suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners, most especially when the implied
petitioner was a sitting President of the Republic of the Philippines. In G.R. No. 180771, apart from adjudicating unto themselves the status
of "legal guardians" of whales, dolphins, porpoises, and other cetacean species, human petitioners also impleaded Former President Gloria
Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and undertaking in the ASEAN Charter to protect Tañon Strait."28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent. In our jurisdiction, only when there is a
party that should have been a necessary party but was unwilling to join would there be an allegation as to why that party has been omitted.
In Rule 3, Section 9 of the 1997 Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should be impleaded as a defendant in the
nature of an unwilling co-plaintiff under Rule 3, Section 10 of the 1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but who do not consent should be put within
the jurisdiction of the court through summons or other court processes. Petitioners. should not take it upon themselves to simply imp lead
any party who does not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal constitutional department, we cannot
assume that the President needs to enforce policy directions by suing his or her alter-egos. The procedural situation caused by petitioners
may have gained public attention, but its legal absurdity borders on the contemptuous. The Former President's name should be stricken out
of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected Areas System Act of 1992, and Presidential
Decree No. 1234,31 which declared Tañon Strait as a protected seascape. It is unconstitutional because it violates the fourth paragraph of
Article XII, Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII, Section 2, paragraph 1 of the .1987
Constitution because Japan Petroleum Exploration Co., Ltd. (JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be
validly classified as a technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of the 1987
Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of paragraph 1, but is a validly executed contract
under paragraph 4.34· Public respondents further aver that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central
Visayas Fisherfolk Development Center's right to preferential use of communal marine and fishing resources.35

VI

Article XII, Section 2 of the 1987 Constitution states:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception. of agricultural lands, all
other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses
other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.
(Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development, and use of natural resources, but only through
either financial agreements or technical ones. This is the clear import of the words "either financial or technical assistance agreements." This
is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and 1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural resources of the Philippines shall be
limited to citizens of the Philippines, or to corporations or association at least sixty per centum of the capital of which is owned by such
citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter into service
contracts for financial, technical, management, or other forms of assistance with any foreign person or entity for the exploitation,
development, exploitation, or utilization of any of the natural resources. Existing valid and binding service contracts for financial, the
technical, management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)

1935 CONSTITUTION

ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES

SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development,
or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government
established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation from the Constitutional Commission
deliberations. The constitutional texts are the product of a full sovereign act: deliberations in a constituent assembly and ratification. Reliance
on recorded discussion of Constitutional Commissions, on the other hand, may result in dependence on incomplete authorship; Besides, it
opens judicial review to further subjectivity from those who spoke during the Constitutional Commission deliberations who may not have
predicted how their words will be used. It is safer that we use the words already in the Constitution. The Constitution was their product. Its
words were read by those who ratified it. The Constitution is what society relies upon even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the standards set forth in La Bugal-B'laan Tribal
Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to
several safeguards, among which are these requirements:

(1) The service contract shall be crafted m accordance with a general law that will set standard or uniform terms, conditions and
requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for
signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public
scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an
opportunity to look over the agreement and interpose timely objections, if any.37 (Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three important points: (a) whether SC-46 was
crafted in accordance with a general law that provides standards, terms, and conditions; (b) whether SC-46 was signed by the President for
and on behalf of the government; and (c) whether it was reported by the President to Congress within 30 days of execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or the Oil Exploration and Development Act
of 1972.1âwphi1 It is my opinion that this law is unconstitutional in that it allows service contracts, contrary to Article XII, Section 2 of the
1987 Constitution:

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President may enter into with foreign-owned
corporations for exploration and utilization of resources means that service contracts are no longer allowed by the Constitution. Pursuant to
Article XVIII, Section 3 of the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an important point, which is that SC-46 did
not merely involve exploratory activities, but also provided the rights and obligations of the parties should it be discovered that there is oil in
commercial quantities in the area. The Tañon Strait being a protected seascape under Presidential Decree No. 123439 requires that the
exploitation and utilization of energy resources from that area are explicitly covered by a law passed by Congress specifically for that
purpose, pursuant to Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to exploration only for the purpose of gathering information on energy resources and only if
such activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted to the President for
recommendation to Congress. Any exploitation and utilization of energy resources found within NIP AS areas shall be allowed only through a
law passed by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of an oil exploration, extraction, and/or utilization
for Tañon Strait and, therefore, no such activities could have been validly undertaken under SC-46. The National Integrated Protected Areas
System Act of 1992 is clear that exploitation and utilization of energy resources in a protected seascape such as Tañon Strait shall only be
allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the requirement set by paragraph 4 of Article XII,
Section 2 for service contracts involving the exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary
Vicente S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the Constitution or law requires the
President to act personally on the matter, the duty cannot be delegated to another public official.41 La Bugal highlights the importance of the
President's involvement, being one of the constitutional safeguards against abuse and corruption, as not mere formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term service contracts in referring to agreements x x x
involving either technical or financial assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would eliminate or m minimize the abuses prevalent
during the marital law regime.42 (Emphasis in the original)

Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in the signing or execution of SC-46. The
failure to comply with this constitutional requirement renders SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution and existence of SC-46. The reporting
requirement is an equally important requisite to the validity of any service contract involving the exploration, development, and utilization of
Philippine petroleum. Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity for the legislative
branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under paragraph 4 of Article XII, Section 2. It is,
therefore, null and void.

I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null and void for being violative of
environmental laws protecting Tañon Strait. In particular, SC-46 was implemented despite falling short of the requirements of the National
Integrated Protected Areas System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the National Integrated Protected Areas System
Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all components of the natural environment particularly
the effect of increasing population, resource exploitation and industrial advancement and recognizing the critical importance of protecting
and maintaining the natural biological and physical diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the State to secure for the Filipino
people of present and future generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological values that may be incorporated into a
holistic plan representative of our natural heritage; that effective administration of these areas is possible only through cooperation among
national government, local and concerned private organizations; that the use and enjoyment of these protected areas must be consistent
with the principles of biological diversity and sustainable development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall encompass outstanding
remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals,
biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected areas."44
(Emphasis supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the management plan for protected
areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be
taken into consideration in the decision-making process.45(Emphasis supplied)

The same provision further requires that an Environmental Compliance Certificate be secured under the Philippine Environmental Impact
Assessment System before arty project is implemented:

No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the
Philippine Environment Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent
shall plan and carry them out in such manner as will minimize any adverse effects and take preventive and remedial action when appropriate.
The proponent shall be liable for any damage due to lack of caution or indiscretion.46 (Emphasis supplied)

In projects involving the exploration or utilization of energy resources, the National Integrated Protected Areas System Act of 1992
additionally requires that a program be approved by the Department of Environment and Natural Resources, which shall be publicly
accessible. The program shall also be submitted to the President, who in turn will recommend the program to Congress. Furthermore,
Congress must enact a law specifically allowing the exploitation of energy resources found within a protected area such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to exploration only for the purpose of gathering information on energy resources and only if
such activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted to the President for
recommendation to Congress. Any exploitation and utilization of energy resources found within NIPAS areas shall be allowed only through a
taw passed by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an Environmental Compliance Certificate.48 At
any rate, they assert that the activities covered by SC-46 fell under Section 14 of the National Integrated Protected Areas System Act of
1992, which they interpret to be an exception to Section 12. They argue that the Environmental Compliance Certificate is not a strict
requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve or natural park; (b) the exploration was merely for
gathering information; and ( c) measures were in place to ensure that the exploration caused the least possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for cases involving Philippine energy resources.
The National Integrated Protected Areas System Act of 1992 was enacted to recognize the importance of protecting the environment in light
of resource exploitation, among others.50 Systems are put in place to secure for Filipinos local resources under the most favorable conditions.
With the status of Tañon Strait as a protected seascape, the institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based on the records, JAPEX commissioned
an environmental impact evaluation only in the second subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any environmental assessment contrary to Section 12
of the National Integrated Protected Areas System Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient species, we do not lack in the wisdom or sensitivity
to realize that we only borrow the resources that we use to survive and to thrive. We are not incapable of mitigating the greed that is slowly
causing the demise of our planet. Thus, there is no need for us to feign representation of any other species or some imagined unborn
generation in filing any action in our courts of law to claim any of our fundamental rights to a healthful ecology. In this way and with candor
and courage, we fully shoulder the responsibility deserving of the grace and power endowed on our species.

ACCORDINGLY, I vote:

(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former President Gloria Macapagal-Arroyo from
the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1234.

G.R. No. 211010

VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN, REPRESENTING THE CARLESS PEOPLE OF THE PHILIPPINES;
GABRIEL ANASTACIO, REPRESENTED BY HIS MOTHER GRACE ANASTACIO, DENNIS ORLANDOSANGALANG, REPRESENTED
BY HIS MOTHER MAY ALILI SANGALANG, MARIA PAULINA CASTANEDA, REPRESENTED BY HER MOTHERATRICIAANN
CASTANEDA, REPRESENTING THE CHILDREN OF THE PHILIPPINES AND CHILDREN OF THE FUTURE; AND RENATO PINEDA,
JR., ARON KERR MENGUITO, MAY ALILI SANGALANG, AND GLYNDA BATHAN BATERINA, REPRESENTING CAROWNERS WHO
WOULD RATHER NOT HA VE CARS IF GOOD PUBLIC TRANSPORTATION WERE SAFE, CONVENIENT, ACCESSIBLE AND
RELIABLE, Petitioners
vs
THE CLIMATE CHANGE COMMISSION, REPRESENTED BY ITS CHAIRMAN, HIS EXCELLENCY BENIGNO S. AQUINO III, AND ITS
COMMISSIONERS MARY ANN LUCILLE SERING, HEHERSON ALVAREZANDNADAREV SANO; DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC) REPRESENTED BY ITS SECRETARY, HONORABLE JOSEPH ABAYA;
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH) AND THE ROAD BOARD, REPRESENTED BY ITS SECRETARY,
HONORABLE ROGELIO SINGSON; DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), REPRESENTED BY ITS
SECRETARY, HONORABLE MANUEL ROXAS; DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR),
REPRESENTED BY ITS SECRETARY, HONORABLE RAMON PAJE; DEPARTMENT OF BUDGET AND MANAGEMENT (DBM),
REPRESENTED BY ITS SECRETARY, HONORABLE FLORENCIO ABAD; METROPOLITAN MANILA DEVELOPMENT AUTHORITY
(MMDA), REPRESENTED BY ITS CHAIRMAN, FRANCIS TOLENTINO; DEPARTMENT OF AGRICULTURE (DA), REPRESENTED BY
ITS SECRETARY, HONORABLE PROCESO ALCALA; AND JOHN DOES, REPRESENTING AS YET UNNAMED LOCAL
GOVERNMENT UNITS AND THEIR RESPECTIVE LOCAL CHIEF EXECUTIVE, JURIDICAL ENTITIES, AND NATURAL PERSONS WHO
FAIL OR REFUSE TO IMPLEMENT THE LAW OR COOPERATE IN THE IMPLEMENTATION OF THE LAW, Respondents

DECISION

CAGUIOA, J.:

This is a petition for the issuance of writs of kalikasan and continuing mandamus to compel the implementation of the following
environmental laws and executive issuances - Republic Act No. (RA) 97291 (Climate Change Act), and RA 87492 (Clean Air Act); Executive
Order No. 7743 (BO 774); AO 254, s. 20094 (AO 254); and Administrative Order No. 171, s. 20075 (AO 171).

Accordingly, the Petitioners seek to compel: (a) the public respondents to: (1) implement the Road Sharing Principle in all roads; (2) divide all
roads lengthwise, one-half (½) for all-weather sidewalk and bicycling, the other half for Filipino-made transport vehicles; (3) submit a
time-bound action plan to implement the Road Sharing Principle throughout the country; (b) the Office of the President, Cabinet officials and
public employees of Cabinet members to reduce their fuel consumption by fifty percent (50%) and to take public transportation fifty percent
(50%) of the time; (c) Public respondent DPWH to demarcate and delineate the road right-of-way in all roads and sidewalks; and (d) Public
respondent DBM to instantly release funds for Road Users' Tax.6

The Facts

To address the clamor for a more tangible response to climate change, Former President Gloria Macapagal-Arroyo issued AO 171 which
created the Presidential Task Force on Climate Change (PTFCC) on February 20, 2007. This body was reorganized through BO 774, which
designated the President as Chairperson, and cabinet secretaries as members of the Task Force. EO 774 expressed what is now referred to
by the petitioners as the "Road Sharing Principle." Its Section 9(a) reads:

Section 9. Task Group on Fossil Fuels. - (a) To reduce the consumption of fossil fuels, the Department of Transportation and
Communications (DOTC) shall lead a Task Group to reform the transportation sector. The new paradigm in the movement of men and things
must follow a simple principle: "Those who have less in wheels must have more in road." For this purpose, the system shall favor
nonmotorized locomotion and collective transportation system (walking, bicycling, and the man-powered mini-train).

In 2009, AO 254 was issued, mandating the DOTC (as lead agency for the Task Group on Fossil Fuels or TGFF) to formulate a national
Environmentally Sustainable Transport Strategy (EST) for the Philippines. The Road Sharing Principle is similarly mentioned, thus:

SECTION 4. Functions of the TGFF- In addition to the functions provided in EO 774, the TGFF shall initiate and pursue the formulation of the
National EST Strategy for the Philippines.

Specifically, the TGFF shall perform the following functions:

(a) Reform the transport sector to reduce the consumption of fossil fuels. The new paradigm in the movement of men and things must follow
a simple principle: "Those who have less in wheels must have more in road." For this purpose, the system shall favor non-motorized
locomotion and collective transportation system (walking, bicycling, and the manpowered mini-train).

xxxx

Later that same year, Congress passed the Climate Change Act. It created the Climate Change Commission which absorbed the functions
of the PTFCC and became the lead policy-making body of the government which shall be tasked to coordinate, monitor and evaluate the
programs and action plans of the government relating to climate change.7

Herein petitioners wrote respondents regarding their pleas for implementation of the Road Sharing Principle, demanding the reform of the
road and transportation system in the whole country within thirty (30) days from receipt of the said letter - foremost, through the bifurcation of
roads and the reduction of official and government fuel consumption by fifty percent (50%).8 Claiming to have not received a response, they
filed this petition.

The Petition

Petitioners are Carless People of the Philippines, parents, representing their children, who in turn represent "Children of the Future, and
Car-owners who would rather not have cars if good public transportation were safe, convenient, accessible, available, and reliable". They
claim that they are entitled to the issuance of the extraordinary writs due to the alleged failure and refusal of respondents to perform an act
mandated by environmental laws, and violation of environmental laws resulting in environmental damage of such magnitude as to prejudice
the life, health and property of all Filipinos.9

These identified violations10 include: (a) The government's violation of "atmospheric trust" as provided under Article XI, Section 1 of the
Constitution, and thoughtless extravagance in the midst of acute public want under Article 25 of the Civil Code for failure to reduce personal
and official consumption of fossil fuels by at least fifty percent (50%); (b) DOTC and DPWH's failure to implement the Road Sharing Principle
under EO 774; (c) DA's failure to devote public open spaces along sidewalks, roads and parking lots to sustainable urban farming as
mandated by Section 12(b)11 f EO 774; (d) DILG's failure to coordinate with local government units (LGUs) to guide them on the Road
Sharing Principle under Section 9(g)12 of EO 774; (e) DENR's failure to reduce air pollutant emissions; and lastly, (f) DBM's failure to make
available Road Users' Tax for purposes stated in Section 9(e)13 of EO 774.
In gist, petitioners contend that respondents' failure to implement the foregoing laws and executive issuances resulted in the continued
degradation of air quality, particularly in Metro Manila, in violation of the petitioners' constitutional right to a balanced and healthful ecology,14
and may even be tantamount to deprivation of life, and of life sources or "land, water, and air" by the government without due process of
law.15 They also decry the "unequal" protection of laws in the prevailing scheme, claiming that ninety-eight percent (98%) of Filipinos are
discriminated against by the law when the car-owning two percent (2%) is given almost all of the road space and while large budgets are
allocated for construction and maintenance of roads, hardly any budget is given for sidewalks, bike lanes and non-motorized transportation
systems.16

Respondents, through the Office of the Solicitor General, filed their Comment seeking the outright dismissal of the petition for lack of
standing and failure to adhere to the doctrine of hierarchy of courts.17 Moreover, respondents argue that petitioners are not entitled to the
reliefs prayed for.

Specifically, respondents assert that petitioners are not entitled to a writ of kalikasan because they failed to show that the public respondents
are guilty of an unlawful act or omission; state the environmental law/s violated; show environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants of two or more cities; and prove that non- implementation of Road Sharing Principle will
cause environmental damage. Respondents likewise assert that petitioners are similarly not entitled to a

Continuing Mandamus because: (a) there is no showing of a direct or personal injury or a clear legal right to the thing demanded; (b) the writ
will not compel a discretionary act or anything not in a public officer's duty to do (i.e. the manner by which the Road Sharing Principle will be
applied; and to compel DA to exercise jurisdiction over roadside lands); and (c) DBM cannot be compelled to make an instant release of
funds as the same requires an appropriation made by law (Article VI, Section 29[1] of the Constitution) and the use of the Road Users' Tax
(more appropriately, the Motor Vehicle Users' Charge) requires prior approval of the Road Board.18

In any event, respondents denied the specific violations alleged in the petition, stating that they have taken and continue to take measures to
improve the traffic situation in Philippine roads and to improve the environment condition - through projects and programs such as: priority
tagging of expenditures for climate change adaptation and mitigation, the Integrated Transport System which is aimed to decongest major
thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban Re-Greening Programs.
These projects are individually and jointly implemented by the public respondents to improve the traffic condition and mitigate the effects of
motorized vehicles on the environment.19 Contrary to petitioners' claims, public respondents assert that they consider the impact of the
transport sector on the environment, as shown in the Philippine National Implementation Plan on Environment Improvement in the Transport
Sector which targets air pollution improvement actions, greenhouse gases emission mitigation, and updating of noise pollution standards for
the transport sector.

In response, petitioner filed their Reply, substantially reiterating the arguments they raised in the Petition.
ISSUES

From the foregoing submissions, the main issues for resolution are:

1. Whether or not the petitioners have standing to file the petition;

2. Whether or not the petition should be dismissed for failing to adhere to the doctrine of hierarchy of courts; and

3. Whether or not a writ of Kalikasan and/or Continuing Mandamus should issue.

RULING

The petition must be dismissed.

Procedural Issues

Citing Section 1, Rule 7 of the Rules of Procedure for Environmental Cases20 (RPEC), respondents argue that the petitioners failed to show
that they have the requisite standing to file the petition, being representatives of a rather amorphous sector of society and without a concrete
interest or injury.21 Petitioners counter that they filed the suit as citizens, taxpayers, and representatives; that the rules on standing had been
relaxed following the decision in Oposa v. Factoran;22 and that, in any event, legal standing is a procedural technicality which the Court may
set aside in its discretion.23

The Court agrees with the petitioners' position. The RPEC did liberalize the requirements on standing, allowing the filing of citizen's suit for
the enforcement of rights and obligations under environmental laws.24 This has been confirmed by this Court's rulings in Arigo v. Swift,25 and
International Service for the Acquisition of Agri-BioTech Applications, Inc. v. Greenpeace Southeast Asia (Philippines).26 However, it bears
noting that there is a difference between a petition for the issuance of a writ of kalikasan, wherein it is sufficient that the person filing
represents the inhabitants prejudiced by the environmental damage subject of the writ;27 and a petition for the issuance of a writ of
continuing mandamus, which is only available to one who is personally aggrieved by the unlawful act or omission. 28

Respondents also seek the dismissal of the petition on the ground that the petitioners failed to adhere to the doctrine of hierarchy of courts,
reasoning that since a petition for the issuance of a writ of kalikasan must be filed with the Supreme Court or with any of the stations of the
Court of Appeals,29 then the doctrine of hierarchy of courts is applicable.30 Petitioners, on the other hand, cite the same provision and argue
that direct recourse to this Court is available, and that the provision shows that the remedy to environmental damage should not be limited to
the territorial jurisdiction of the lower courts.31
The respondents' argument does not persuade. Under the RPEC, the writ of kalikasan is an extraordinary remedy covering environmental
damage of such magnitude that will prejudice the life, health or property of inhabitants in two or more cities or provinces. It is designed for a
narrow but special purpose: to accord a stronger protection for environmental rights, aiming, among others, to provide a speedy and
effective resolution of a case involving the violation of one's constitutional right to a healthful and balanced ecology that transcends political
and territorial boundaries, and to address the potentially exponential nature of large-scale ecological threats.32 At the very least, the
magnitude of the ecological problems contemplated under the RPEC satisfies at least one of the exceptions to the rule on hierarchy of courts,
as when direct resort is allowed where it is dictated by public welfare.1âwphi1 Given that the RPEC allows direct resort to this Court,33 it is
ultimately within the Court's discretion whether or not to accept petitions brought directly before it.

Requisites for issuance of Writs of


Kalikasan and Continuing
Mandamus

We find that the petitioners failed to establish the requisites for the issuance of the writs prayed for.

For a writ of kalikasan to issue, the following requisites must concur:

1. there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;

2. the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and

3. the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.34

It is well-settled that a party claiming the privilege for the issuance of a writ of kalikasan has to show that a law, rule or regulation was violated
or would be violated.35

In this case, apart from repeated invocation of the constitutional right to health and to a balanced and healthful ecology and bare allegations
that their right was violated, the petitioners failed to show that public respondents are guilty of any unlawful act or omission that constitutes a
violation of the petitioners' right to a balanced and healthful ecology.

While there can be no disagreement with the general propositions put forth by the petitioners on the correlation of air quality and public
health, petitioners have not been able to show that respondents are guilty of violation or neglect of environmental laws that causes or
contributes to bad air quality. Notably, apart from bare allegations, petitioners were not able to show that respondents failed to execute any of
the laws petitioners cited. In fact, apart from adducing expert testimony on the adverse effects of air pollution on public health, the petitioners
did not go beyond mere allegation in establishing the unlawful acts or omissions on the part of the public respondents that have a causal link
or reasonable connection to the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude
contemplated under the Rules, as required of petitions of this nature.36

Moreover, the National Air Quality Status Report for 2005-2007 (NAQSR) submitted by the petitioners belies their claim that the DENR failed
to reduce air pollutant emissions - in fact, the NAQSR shows that the National Ambient Total Suspended Particulates (TSP) value used to
determine air quality has steadily declined from 2004 to 2007,37and while the values still exceed the air quality guideline value, it has
remained on this same downward trend until as recently as 2011.38

On the other hand, public respondents sufficiently showed that they did not unlawfully refuse to implement or neglect the laws, executive and
administrative orders as claimed by the petitioners. Projects and programs that seek to improve air quality were undertaken by the
respondents, jointly and in coordination with stakeholders, such as: priority tagging of expenditures for climate change adaptation and
mitigation, the Integrated Transport System which is aimed to decongest major thoroughfares, Truck Ban, Anti-Smoke Belching Campaign,
Anti-Colorum, Mobile Bike Service Programs, and Urban Re-Greening Programs.

In fact, the same NAQSR submitted by the petitioners show that the DENR was, and is, taking concrete steps to improve national air quality,
such as information campaigns, free emission testing to complement the anti-smoke-belching program and other programs to reduce
emissions from industrial smokestacks and from open burning of waste.39 The efforts of local governments and administrative regions in
conjunction with other · executive agencies and stakeholders are also outlined.40

Similarly, the writ of continuing mandamus cannot issue.

Rule 8, Section 1 of the RPEC lays down the requirements for a petition for continuing mandamus as follows:

RULES
WRIT OF CONTINUING MANDAMUS

SECTION 1. Petition for continuing mandamus.-When any agency or instrumentality of the government or officer thereof unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or
enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that
the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an
act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to
perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum
shopping.

First, the petitioners failed to prove direct or personal injury arising from acts attributable to the respondents to be entitled to the writ.1âwphi1
While the requirements of standing had been liberalized in environmental cases, the general rule of real party-in-interest applies to a petition
for continuing mandamus.41

Second, the Road Sharing Principle is precisely as it is denominated - a principle. It cannot be considered an absolute imposition to
encroach upon the province of public respondents to determine the manner by which this principle is applied or considered in their policy
decisions. Mandamus lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary,42 and the
official can only be directed by mandamus to act but not to act one way or the other. The duty being enjoined in mandamus must be one
according to the terms provided in the law itself. Thus, the recognized rule is that, in the performance of an official duty or act involving
discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other.43

This Court cannot but note that this is precisely the thrust of the petition - to compel the respondents to act one way to implement the Road
Sharing Principle - to bifurcate all roads in the country to devote half to sidewalk and bicycling, and the other to Filipino-made transport -
when there is nothing in EO 774, AO 254 and allied issuances that require that specific course of action in order to implement the same.
Their good intentions notwithstanding, the petitioners cannot supplant the executive department's discretion with their own through this
petition for the issuance of writs of kalikasan and continuing mandamus.

In this case, there is no showing of unlawful neglect on the part of the respondents to perform any act that the law specifically enjoins as a
duty - there being nothing in the executive issuances relied upon by the petitioners that specifically enjoins the bifurcation of roads to
implement the Road Sharing Principle. To the opposite, the respondents were able to show that they were and are actively implementing
projects and programs that seek to improve air quality.1âwphi1

At its core, what the petitioners are seeking to compel is not the performance of a ministerial act, but a discretionary act - the manner of
implementation of the Road Sharing Principle. Clearly, petitioners' preferred specific course of action (i.e. the bifurcation of roads to devote
for all-weather sidewalk and bicycling and Filipino-made transport vehicles) to implement the Road Sharing Principle finds no textual basis in
law or executive issuances for it to be considered an act enjoined by law as a duty, leading to the necessary conclusion that the continuing
mandamus prayed for seeks not the implementation of an environmental law, rule or regulation, but to control the exercise of discretion of
the executive as to how the principle enunciated in an executive issuance relating to the environment is best implemented. Clearly, the
determination of the means to be taken by the executive in implementing or actualizing any stated legislative or executive policy relating to
the environment requires the use of discretion. Absent a showing that the executive is guilty of "gross abuse of discretion, manifest injustice
or palpable excess of authority,"44 the general rule applies that discretion cannot be checked via this petition for continuing mandamus.
Hence, the continuing mandamus cannot issue.1âwphi1

Road Users' Tax

Finally, petitioners seek to compel DBM to release the Road Users' Tax to fund the reform of the road and transportation system and the
implementation of the Road Sharing Principle.

It bears clarifying that the Road Users' Tax mentioned in Section 9(e) of EO 774, apparently reiterated in Section 5 of AO 254 is the Special
Vehicle Pollution Control Fund component of the Motor Vehicle Users' . Charge ("MVUC') imposed on owners of motor vehicles in RA 8794,
otherwise known as the Road Users' Tax Law. By the express provisions of the aforementioned law, the amounts in the special trust
accounts of the MVUC are earmarked solely and used exclusively (1) for road maintenance and the improvement of the road drainage, (2)
for the installation of adequate and efficient traffic lights and road safety devices, and (3) for the air pollution control, and their utilization are
subject to the management of the Road Board.45 Verily, the petitioners' demand for the immediate and unilateral release of the Road Users'
Tax by the DBM to support the petitioners' operationalization of this Road Sharing Principle has no basis in law. The executive issuances
relied upon by the petitioner do not rise to the level of law that can supplant the provisions of RA 8794 that require the approval of the Road
Board for the use of the monies in the trust fund. In other words, the provisions on the release of funds by the DBM as provided in EO 774
and AO 254 are necessarily subject to the conditions set forth in RA 8794. Notably, RA 9729, as amended by RA 10174, provides for the
establishment for the People's Survival Fund46 that may be tapped for adaptation activities, which similarly require approval from the PSF
Board.47

That notwithstanding, the claim made by the petitioners that hardly any budget is allotted to mitigating environmental pollution is belied by
the priority given to programs aimed at addressing and mitigating climate change that the DBM and the CCC had been tagging and tracking
as priority expenditures since 2013.48 With the coordination of the DILG, this priority tagging and tracking is cascaded down to the local
budget management of local government units.49

Other causes of action

As previously discussed, the petitioners' failure to show any violation on the part of the respondents renders it unnecessary to rule on other
allegations of violation that the petitioners rely upon as causes of action against the public respondents.

In fine, the allegations and supporting evidence in the petition fall short in showing an actual or threatened violation of the petitioners'
constitutional right to a balanced and healthful ecology arising from an unlawful act or omission by, or any unlawful neglect on the part of, the
respondents that would warrant the issuance of the writs prayed for.
WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 209287 July 1, 2014

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR,
UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS
MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN
MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT,
CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA,
CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

x-----------------------x

G.R. No. 209135

AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,


vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON.
FRANKLIN MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents.

x-----------------------x

G.R. No. 209136

MANUELITO R. LUNA, Petitioner,


vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT;
AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents.
x-----------------------x

G.R. No. 209155

ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,


vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT
FLORENCIO B. ABAD, Respondents.

x-----------------------x

G.R. No. 209164

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E.


DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents.

x-----------------------x

G.R. No. 209260

INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,


vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM),Respondent.

x-----------------------x

G.R. No. 209442

GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L. GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT
FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET
AND MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE LEON, Respondents.

x-----------------------x

G.R. No. 209517

CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS
NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL
BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES,
DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA);
ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES
UNION (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG
MGA KAW ANI NG MMDA (KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE
SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT,
Respondents.

x-----------------------x

G.R. No. 209569

VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE L. JIMENEZ,Petitioner,


vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

DECISION

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.

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 ₱50 Million each as "incentive" for voting in favor of the impeachment of Chief
Justice Renato C. Corona.

Responding to Sen. Estrada’s 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.

The DBM soon came out to claim in its website3 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 DAP’s 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 representative’s 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 Court’s 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).

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

Issues

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

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."

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.

In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support its argument regarding the President’s
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:

F. Whether or not the release of unprogrammed funds under the DAP was in accord with the GAAs.
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 President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars or orders issued in relation to
the DAP.9

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);

d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY 2013);

e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of Commitments/Obligations of the National
Government);

f. 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);

g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release System in the Government).

(3) A breakdown of the sources of savings, including savings from discontinued projects and unpaid appropriations for compensation
from 2011 to 2013

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) 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;

(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 General’s visual presentation for the January 28, 2014 oral arguments.

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.

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

(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).

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:

Certiorari,
G.R. No.
Prohibition
209135
and
(Syjuco)
Mandamus
G.R. No. Certiorariand
209136 (Luna) Prohibition

G.R. No.
Certiorariand
209155
Prohibition
(Villegas)

G.R. No.
Certiorariand
209164
Prohibition
(PHILCONSA)

G.R. No.
Prohibition
209260 (IBP)

G.R. No.
Certiorariand
209287
Prohibition
(Araullo)

G.R. No.
209442 Certiorari
(Belgica)

G.R. No.
Certiorari and
209517
Prohibition
(COURAGE)

G.R. No.
Certiorari and
209569
Prohibition
(VACC)

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

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 Commissioner’s 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

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
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 x29

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 King’s 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 court’s
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 entity’s or
person’s 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 Executive’s 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 Administration’s 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 DAP’s 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. Macapagal-Arroyo, 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 taxpayer’s suit is in a different category from the plaintiff in a citizen’s 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, however…the people are the real
parties…It 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 taxpayer’s 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 Court’s 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 State’s 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 country’s past as a
colony successively of Spain and the United States for a long period of time. Many aspects of the country’s 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 President’s 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 line-item budget as the
framework of the Government’s 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
performance-budgeting 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 DBM’s senior officials. The discussions of the Executive Review Board
cover the prioritization of programs and their corresponding support vis-à-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 Government’s 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 President’s 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 defray…the
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 Smith’s 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 Specific Income


Subsidy Income from 1. Income Taxes
1. National 2. Property Taxes
Government
Taxes on Goods and
Subsidy from Central 3.
2. Services
Office
Taxes on International
Subsidy from Regional 4. Trade and
3.
Office/Staff Bureaus Transactions
Income from Government Other Taxes 6.Fines and
4. 5.
Services Penalties-Tax Revenue
Income from Government 7. Other Specific Income
5.
Business Operations
6. Sales Revenue
7. Rent Income
8. Insurance Income
9. Dividend Income
10. Interest Income
Sale of Confiscated Goods
11. and
Properties
Foreign Exchange
12. (FOREX)
Gains
Miscellaneous Operating
13. and
Service Income
Fines and
Penalties-Government
14.
Services and Business
Operations
Income from Grants and
15.
Donations

c.2. Budget Legislation86

The Budget Legislation Phase covers the period commencing from the time Congress receives the President’s Budget, which is inclusive of
the NEPand the BESF, up to the President’s 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 President’s 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 Senate’s 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 agency’s 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 State’s 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 agency’s 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 program designed to


promote economic growth

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 Administration’s "blueprint for public policy" and reflects the Government’s 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 policy-making" to stimulate the economy by way
of accelerated spending.106The 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 PPP-related 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 Administration’s 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 ₱72.11 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 ₱72.11 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


Amount
Action
Fund Sources (In million Description
Requested
Php)

Unreleased
Personnel
Services (PS) Declare as
appropriations which savings and
FY 2011
will lapse at the end approve/
Unreleased
of authorize its use
Personal 30,000
FY 2011 but may be for the 2011
Services (PS)
pooled as savings Disbursement
Appropriations
and Acceleration
realigned for priority Program
programs that require
immediate funding

Unreleased
FY 2011 appropriations (slow
Unreleased 482 moving projects and
Appropriations programs for
discontinuance)

Approve and
authorize its use
FY 2010
Supported by the GFI for the 2011
Unprogrammed 12,336
Dividends Disbursement
Fund
Acceleration
Program

Unreleased With prior


FY 2010
appropriations (slow approval from
Carryover 21,544
moving projects and the President in
Appropriation
programs for November 2010
discontinuance) and to declare as
savings from savings and with
Zero-based authority to use
Budgeting for priority
Initiative projects

FY 2011 Agency
Budget items that
can
be realigned within
the
FY 2011 Budget
agency to fund new
items for 7,748 For information
fast
realignment
disbursing projects
DPWH-3.981 Billion
DA – 2.497 Billion
DOT – 1.000 Billion
DepEd – 270 Million

TOTAL 72.110

B. Projects in the Disbursement Acceleration Program

(Descriptions of projects attached as Annex A)

GOCCs and GFIs

Agency/Project Allotment
(SARO and NCA Release) (in Million Php)

1. LRTA: Rehabilitation of LRT 1 and 2 1,868

2. NHA: 11,050
a. Resettlement of North Triangle residents to 450
Camarin A7
b. Housing for BFP/BJMP 500
c. On-site development for families living 10,000
along dangerous
d. Relocation sites for informal settlers 100
along Iloilo River and its tributaries

3. PHIL. HEART CENTER: Upgrading of


357
ageing physical plant and medical equipment

4. CREDIT INFO CORP: Establishment of


75
centralized credit information system

5. PIDS: purchase of land to relocate the PIDS


100
office and building construction

6. HGC: Equity infusion for credit insurance


400
and mortgage guaranty operations of HGC

7. PHIC: Obligations incurred (premium


subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] – Dec
2010. The delay in payment is due to the 1,496
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
pay the full amount.

8. Philpost: Purchase of foreclosed property.


Payment of Mandatory Obligations, (GSIS, 644
PhilHealth, ECC), Franking Privilege

9. BSP: First equity infusion out of Php 40B


10,000
capitalization under the BSP Law

10. PCMC: Capital and Equipment Renovation 280


11. LCOP: 105
a. Pediatric Pulmonary Program
b. Bio-regenerative Technology Program 35
(Stem-Cell Research – subject to legal
review and presentation) 70

12. TIDCORP: NG Equity infusion 570

TOTAL 26,945

NGAs/LGUs

Allotment
(SARO) Cash
Agency/Project
(In Million Requirement
Php) (NCA)

13. DOF-BIR: NPSTAR


centralization of data
processing and others
(To be
synchronized with
GFMIS 758 758
activities)

14. COA: IT
infrastructure
program and hiring of
additional litigational 144 144
experts

15. DND-PAF: On Base


Housing
Facilities and
30 30
Communication
Equipment

16. DA:
2,959 2,223
a. Irrigation, FMRs and
Integrated Community
Based Multi-Species
Hatchery and Aquasilvi
1,629 1,629
Farming
b. Mindanao Rural
919 183
Development Project

c. NIA Agno River


Integrated
411 411
Irrigation Project

17. DAR:
1,293
a. Agrarian Reform 1,293
Communities Project 2
132
b. Landowners 1,293
5,432
Compensation

18. DBM: Conduct of


National
Survey of
625 625
Farmers/Fisherfolks/Ips

19. DOJ: Operating


requirements
of 50 investigation
agents and 11 11
15 state attorneys

20. DOT: Preservation of


the Cine
25 25
Corregidor Complex
21. OPAPP: Activities for
Peace
Process (PAMANA-
Project
details: budget
breakdown,
implementation plan,
and
1,819 1,819
conditions on fund
release
attached as Annex B)

22. DOST
a. Establishment of
National
Meterological and 425 425
Climate
Center
b. Enhancement of 275 275
Doppler
Radar Network for
National
Weather Watch,
Accurate 190 190
Forecasting and Flood
Early
Warning

23. DOF-BOC: To settle


the
principal obligations with
PDIC consistent with the
agreement with the CISS
and 2,800 2,800
SGS
24. OEO-FDCP:
Establishment of
the National Film Archive
and
local cinematheques,
20 20
and other
local activities

25. DPWH: Various


infrastructure
5,500 5,500
projects

26. DepEd/ERDT/DOST:
Thin
Client Cloud Computing
270 270
Project

27. DOH: Hiring of


nurses and
294 294
midwives

28. TESDA: Training


Program in
partnership with BPO
industry 1,100 1,100
and other sectors

29. DILG: Performance


Challenge
Fund (People
Empowered
Community Driven
Development with
250 50
DSWD and
NAPC)
30. ARMM:
Comprehensive Peace
and Development 8,592 8,592
Intervention

31. DOTC-MRT:
Purchase of
4,500 -
additional MRT cars

32. LGU Support Fund 6,500 6,500

33. Various Other Local


6,500 6,500
Projects

34. Development
Assistance to the
750 750
Province of Quezon

TOTAL 45,165 44,000

C. Summary

Fund Sources
Identified for Cash
Approval Allotments Requirements for
(In Million for Release Release in FY
Php) 2011

Total 72,110 70,895

GOCCs 72,110 26,895 26,895

NGAs/LGUs 45,165 44,000

For His Excellency’s Consideration


(Sgd.) FLORENCIO B. ABAD

[/] APPROVED

[ ] 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

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.

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;

1.2 to augment additional requirements of on-going priority projects; and

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

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

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.

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 PRESIDENT’S APPROVAL

8.0 Foregoing considered, may we respectfully request for the President’s 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 Excellency’s 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;

2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said unobligated allotments; and

2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments.

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:

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 updated/validated list of pensioners.

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.

4.0 Exemption

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.

4.2 Fund Sources

4.2.1 Personal Services other than pension benefits;

4.2.2 MOOE items earmarked for specific purposes or subject to realignment conditions per General Provisions of the GAA:

• 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;

• Savings from mandatory expenditures which can be realigned only in the last quarter after taking into consideration the
agency’s full year requirements, i.e., Petroleum, Oil and Lubricants, Water, Illumination, Power Services, Telephone, other
Communication Services and Rent.

4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);

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;

4.2.5 Quick Response Funds; and

4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special Accounts in the General Fund.

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.

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, Obligations 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 agency’s latest report available shall be used by
DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s 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 ₱1,600 M (i.e., ₱800 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 President’s 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 highlight the
agencies which failed to submit the June 30 reports required under this Circular.
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;

5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or

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.

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

This circular shall take effect immediately.

(Sgd.) FLORENCIO B. ABAD


Secretary

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 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.

We agree with the OSG’s position.

The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the DAP’s
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 country’s 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 Executive’s 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 country’s 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 Governor-General 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 President’s 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 President’s 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 ₱1,000,000.00 threshold,
saying that the amount was arbitrary and might not be reasonable in the future. The Committee agreed to eliminate the ₱1,000,000.00
threshold, and settled on the ten percent limitation.141

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:

(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.

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

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

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:

Section 25. x x x

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 petitioner’s 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 President’s 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 Requisite–GAAs 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:

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 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 appropriation…free 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.

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 President’s 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.
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.

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 Zero-Based 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-à-vis the
PAPs for which Congress had 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.

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 DBM’s
withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.

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 DBM’s 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 department’s 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.

It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the allotments pertained to
slow-moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz:
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:

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.

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:

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.

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

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.

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

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:

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.

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:

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.

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.

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.
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 DBM’s 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 President’s 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 agency’s latest report available shall be used by
DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s 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 ₱1,600 M (i.e., ₱800 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 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
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 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.1âwphi1 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
non-recurring 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 – No funds from


savings could be transferred under
the DAP to augment deficient items
not provided in the GAA

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 ₱144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 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

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:

(i) ₱1.5 billion for the Cordillera People’s Liberation Army;

(ii) ₱1.8 billion for the Moro National Liberation Front;

(iii) ₱700 million for assistance to Quezon Province;164

(iv) ₱50 million to ₱100 (million) each to certain senators;165

(v) ₱10 billion for the relocation of families living along dangerous zones under the National Housing Authority;

(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko Sentral;

(vii) ₱5.4 billion landowners’ compensation under the Department of Agrarian Reform;

(viii) ₱8.6 billion for the ARMM comprehensive peace and development program;

(ix) ₱6.5 billion augmentation of LGU internal revenue allotments

(x) ₱5 billion for crucial projects like tourism road construction under the Department of Tourism and the Department of Public Works
and Highways;

(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;

(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional health units; and

(xiii) ₱4 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

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.

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 of ₱1.6 Billion,169 broken down as follows:

APPROPRIATION AMOUNT
PARTICULARS
CODE AUTHORIZED

Generation of new knowledge and technologies


and research capability building in priority areas
identified as strategic to National Development
A.03.a.01.a
Personnel Services P 43,504,024
Maintenance and Other Operating Expenses 1,164,517,589
Capital Outlays 391,978,387
P 1,600,000,000

the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated only ₱537,910,000 for MOOE, but nothing
for personnel services and capital outlays, to wit:

Maintenance
Personnel and Other Capital
TOTAL
Services Operating Outlays
Expenditures

Operations
III.
a. Funding Assistance to 177,406,000 1,887,365,000 49,090,000 2,113,861,000
Science
and Technology
Activities

Central Office 1,554,238,000 1,554,238,000

a. Generation
of new
knowledge
and
technologies
1. and research
capability 537,910,000 537,910,000
building in
priority areas
identified as
strategic to
National
Development

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 (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory, which reads:
APPROPRIATION AMOUNT
PARTICULARS
CODE AUTHORIZED
Development, integration and
coordination of the National
Research System for Industry,
A.02.a
Energy and Emerging Technology
and Related Fields
Capital Outlays P 300,000,000

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.179 Pertinently, 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."181To 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 don’t 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:

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

SECRETARY ABAD:

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

JUSTICE BERSAMIN:

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?

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; that’s 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, that’s 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

The records show, indeed, that funds amounting to ₱143,700,000.00 and ₱250,000,000.00 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

DATE AMOUNT
OFFICE PURPOSE
RELEASED (In thousand pesos)
Reserve
Releases
Imposed
IT Infrastructure
Commission on Program and hiring of
11/11/11 143,700
Audit additional litigation
experts
Completion of the
construction of the
Congress – 207,034
Legislative Library and
House of 07/23/12 (Savings of 250,000
Archives
Representatives HOR)
Building/Congressional
e-library

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.

The respondents justified all the cross-border transfers thusly:

99. The Constitution does not prevent the President from transferring savings of his department to another department upon the latter’s
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

In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing Congress, announced a different
characterization of the cross-border 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. He’s 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 I’m not mistaken, aid not augmentation. Am I correct in my hearing of your argument?

HONORABLE MENDOZA:

That’s 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 in-charge 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 DBM’s 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.

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:

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 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.

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.

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:

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 the corresponding revenue target stated for each source of revenue, to wit:

TAX REVENUES

Taxes on Net Income and Profits


Taxes on Property
Taxes on Domestic Goods and Services

General Sales, Turnover or VAT


Selected Excises on Goods

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 and Charges


BTR Income

Government Services
Interest on NG Deposits
Interest on Advances to Government Corporations
Income from Investments

Interest on Bond Holdings

Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr

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:

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.

This is to certify further that based on the records of the Bureau of Treasury, the National Government has recorded dividend income
amounting to ₱23.8 billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer Roberto B. Tan, viz:

This is to certify that the actual dividend collections remitted to the National Government for the period January to March 2012 amounted to
₱19.419 billion compared to the full year program of ₱5.5 billion for 2012.197

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

This is to certify that the actual dividend collections remitted to the National Government for the period January to May 2013 amounted to
₱12.438 billion compared to the full year program of ₱10.0198 billion for 2013.

Moreover, the National Government accounted for the sale of the right to build and operate the NAIA expressway amounting to ₱11.0 billion
in June 2013.199

The certifications reflected that by collecting dividends amounting to ₱23.8 billion in 2011, ₱19.419 billion in 2012, and ₱12.438 billion in
2013 the BTr had exceeded only the ₱5.5 billion in target revenues in the form of dividends from stocks in each of 2011 and 2012, and only
the ₱10 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 Government’s surplus budget policy.202

We cannot, therefore, subscribe to the respondents’ view.


5.
Equal protection, checks and balances,
and public accountability challenges

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 quasi-judicial 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 quasi-legislative 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.

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.

x-----------------------x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,


vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR., in
his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 209251


PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province of Marinduque,
Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

DECISION

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 system‘s 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 legislator‘s 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 considered11 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 312 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 legislator‘s 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 1960‘s, 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 ₱500,000.00. 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 assemblyman‘s 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 ₱480 Million and ₱240 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 of ₱2.3
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 reported26 that by 1992, Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were receiving ₱18
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 ₱12.5 Million each in CDF funds, Senators, ₱18 Million each, and the
Vice-President, ₱20 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 Vice-President, 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 ministration‘s
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 Niño 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-enactment48 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 Congress61anent 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 ₱250
Million of the ₱500 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 Board64 (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

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 amounts allocated for individual legislators and the Vice-President: Representatives were given ₱70 Million each, broken
down into ₱40 Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was given to each Senator as well as the
Vice-President, with a ₱100 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 stated that the "identification of projects and/or designation of beneficiaries shall conform to
the priority list, standard or design prepared by each implementing agency (priority list requirement) x x x." However, as practiced, it
would still be the individual legislator who would choose and identify the project from the said priority list.74

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 ₱200 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 lump-sum, discretionary funds of Members of Congress, the present
cases and the recent controversies on the matter have, however, shown that the term‘s usage has expanded to include certain funds
of the President such as the Malampaya Funds and the Presidential Social Fund.

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 energy-related 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 ₱3.6 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 ₱10 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)
whistle-blowers 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
government-owned-and-controlled corporations (GOCCs).101 The total releases covered by the audit amounted to ₱8.374 Billion in
PDAF and ₱32.664 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 A‘s 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 latter‘s 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 ₱6.156 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 ₱900 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 Executive‘s 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 Executive‘s 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 Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of merit.113

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

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 Court‘s 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 Court‘s
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 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) non-delegability of legislative power; (c) checks and
balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential 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 Court’s 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
President‘s 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. You‘ve 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

– 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 system‘s flaws have never before been magnified. To the Court‘s mind, the coalescence of
the CoA Report, the accounts of numerous whistle-blowers, and the government‘s 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 CoA‘s disallowance of irregularly disbursed PDAF funds, it was emphasized that:

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 system‘s
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 importantly, so that the government may be guided on how public
funds should be utilized in accordance with constitutional principles.

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 "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 Court‘s
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 citizen-taxpayers 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 Chairperson‘s
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 8152 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, Philconsa‘s 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
Vitug‘s 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. Purisima155(Abakada) has effectively
overturned Philconsa‘s 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 lump-sum 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 fund’s 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 post-enactment 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 other’s 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 department‘s 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 Executive‘s 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. In particular, congressional oversight must
1âwphi1

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
post-enactment 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 4189 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 Industry190 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 legislator’s identification of the project, can the PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

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?

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

xxxx

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

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)

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.

2. Non-delegability of Legislative Power.

a. Statement of Principle.
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

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. Maceren200 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."

xxxx

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)

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 Justice and Insular Auditor202 (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.

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 President’s 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 President‘s item-veto
power is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(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 President‘s 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 President‘s 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 branch‘s role in the budgetary process.208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s 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 President‘s 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 legislator‘s 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 ₱24.79 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 President‘s power of item veto. As petitioners aptly point out, the above-described system forces the
President to decide between (a) accepting the entire ₱24.79 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 ₱24.79
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 President‘s 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 self-perpetuation 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 people‘s 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.

The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislator‘s control of his PDAF
per se would allow him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a legislator‘s 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.

Finally, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive department,
through the former‘s 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 System‘s intrinsic constitutionality. As such, it is an improper subject of judicial
assessment.

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.

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 State‘s 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

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

ARTICLE X

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

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.

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 people‘s 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 Barrel‘s
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

The Court disagrees.

"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

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 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.
Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

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)

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
₱150,000,000.00 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-à-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 ₱150,000,000.00" (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 ₱24.79 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 rule-making, 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 delegate‘s authority and prevent the delegation from running riot.247 To
be sufficient, the standard must specify the limits of the delegate‘s 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 President‘s 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.

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 Executive‘s 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 be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional
right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of the
State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee. (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 latter‘s 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 Court‘s 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 custodian‘s 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 Executive‘s 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
Court‘s 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 authorized the continued implementation and disbursement of PDAF funds as long as they are:
first, covered by a SARO; and, second, that said SARO had been obligated by the implementing agency concerned prior to the issuance of
the Court‘s September 10, 2013 TRO.

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 Court‘s 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 DBM‘s 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 DBM‘s 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?

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 Decision’s 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.

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 Court‘s 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.

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 Court‘s bounden duty and no other‘s.

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 Court‘s 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 custodian‘s 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.

G.R. No. 192935 December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,


vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO
B. ABAD, Respondents.
DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; 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.

--- Justice Jose P. Laurel1

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the several departments.2 The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer.3
Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.4

For consideration before the Court are two consolidated cases5 both of which essentially assail the validity and constitutionality of Executive
Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth Commission of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a
citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article
VI of the Constitution6 as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor.7

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B.
Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino
people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read:

EXECUTIVE ORDER NO. 1


CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve
them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way
it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s trust and confidence in the
Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the Government and in their public servants;

WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections "kung walang corrupt, walang mahirap"
expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to reorganize the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me
by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of
graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to
investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled
corporations, to produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate and the House of Representatives
records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case
may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served,
that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it,
and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and
duties;

i) Engage or contract the services of resource persons, professionals and other personnel determined by it as necessary to carry out its
mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of
this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of
evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order.

SECTION 3. Staffing Requirements. – x x x.

SECTION 4. Detail of Employees. – x x x.

SECTION 5. Engagement of Experts. – x x x

SECTION 6. Conduct of Proceedings. – x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.

SECTION 8. Protection of Witnesses/Resource Persons. – x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. – x x x.

SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds for the Commission to ensure
that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as
possible.

SECTION 12. Office. – x x x.

SECTION 13. Furniture/Equipment. – x x x.

SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before December 31, 2012.

SECTION 15. Publication of Final Report. – x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during
the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.

SECTION 19. Effectivity. – This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III


By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office
of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees,
their co-principals, accomplices and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an "independent collegial body," it is
essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc
body is one.8

To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between
contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot
impose criminal, civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as official, transitory and non-judicial fact-finding
bodies "to establish the facts and context of serious violations of human rights or of international humanitarian law in a country’s past."9
They are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for
transitional justice.

Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are temporary bodies that finish
their work with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.10 "Commission’s members are usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about
past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms."11

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future
conflict by providing a cathartic experience for victims.

The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on judicial retribution, while the
marching order of the PTC is the identification and punishment of perpetrators. As one writer12puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget about the wrongs that they have committed in the past, we have this to
say: There can be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring over and
over again."

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a public office and appropriate funds
for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the
delegated authority of the President to structurally reorganize the Office of the President to achieve economy, simplicity and efficiency
does not include the power to create an entirely new public office which was hitherto inexistent like the "Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth Commission" with quasi-judicial
powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department
of Justice created under the Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the
previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present,
who may be indictable.

(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general international practice of four decades
wherein States constitute truth commissions to exclusively investigate human rights violations, which customary practice forms part of
the generally accepted principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration of
Principles enshrined in the Constitution.

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a launching pad for trial/conviction
by publicity and a mere populist propaganda to mistakenly impress the people that widespread poverty will altogether vanish if
corruption is eliminated without even addressing the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no moment because neither laches nor estoppel
can bar an eventual question on the constitutionality and validity of an executive issuance or even a statute."13

In their Consolidated Comment,14 the respondents, through the Office of the Solicitor General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed executive order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President’s executive power and power
of control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed and that, in any
event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as amended by
P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a mere allocation of
funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant
or erode the latter’s jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on
Reform and Government Operations (PARGO)by President Ferdinand E. Marcos.18

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions and question Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the powers of Congress to create and
to appropriate funds for public offices, agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain whether the requisites
for a valid exercise of its power of judicial review are present.

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 the standing to question 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.19

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of the commission’s investigations, petitioners will not sustain injury in
its creation or as a result of its proceedings.20

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail Executive Order No. 1. Evidently,
their petition primarily invokes usurpation of the power of the Congress as a body to which they belong as members. This certainly justifies
their resolve to take the cudgels for Congress as an institution and present the complaints on the usurpation of their power and rights as
members of the legislature before the Court. As held in Philippine Constitution Association v. Enriquez,21

To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office
remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as
legislators.22

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation and operation of the commission are to be taken from those funds
already appropriated by Congress. Thus, the allocation and disbursement of funds for the commission will not entail congressional action but
will simply be an exercise of the President’s power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor
for the Court to exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case of David v.
Arroyo24 explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." 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." Succinctly put, the plaintiff’s
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.
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, where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s 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, however…the people are the real
parties…It 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 taxpayer’s 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."

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, later reaffirmed in Tileston v. Ullman. 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, 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, Manila Race Horse Trainers’ Association v. De
la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest."25

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury
to the party claiming the right of judicial review. In the first Emergency Powers Cases,27 ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders although they had only an indirect and general interest shared in common with the
public.

The OSG claims that the determinants of transcendental importance28 laid down in CREBA v. ERC and Meralco29are non-existent in this
case. The Court, however, finds reason in Biraogo’s assertion that the petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to the public but
also to the Bench and the Bar, they should be resolved for the guidance of all.30 Undoubtedly, the Filipino people are more than interested to
know the status of the President’s first effort to bring about a promised change to the country. The Court takes cognizance of the petition
not due to overwhelming political undertones that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to
perform its constitutional duty to settle legal controversies with overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not merely an adjunct body of the
Office of the President.31 Thus, in order that the President may create a public office he must be empowered by the Constitution, a statute or
an authorization vested in him by law. According to petitioner, such power cannot be presumed32 since there is no provision in the
Constitution or any specific law that authorizes the President to create a truth commission.33 He adds that Section 31 of the Administrative
Code of 1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth
commission considering the aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and "abolish."34
Insofar as it vests in the President the plenary power to reorganize the Office of the President to the extent of creating a public office, Section
31 is inconsistent with the principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof.35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the delegated authority of the President to reorganize under Section 31 of the
Revised Administrative Code: 1) does not permit the President to create a public office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the Office
of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy and efficiency.36Such
continuing authority of the President to reorganize his office is limited, and by issuing Executive Order No. 1, the President overstepped the
limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices
within the Office of the President Proper has long been recognized.37 According to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally
mandated functions and in the exercise of its administrative functions.38 This power, as the OSG explains it, is but an adjunct of the plenary
powers wielded by the President under Section 1 and his power of control under Section 17, both of Article VII of the Constitution.39

It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and employees of his department and in the exercise of his authority to assume directly the functions
of the executive department, bureau and office, or interfere with the discretion of his officials.40 The power of the President to investigate is
not limited to the exercise of his power of control over his subordinates in the executive branch, but extends further in the exercise of his
other powers, such as his power to discipline subordinates,41 his power for rule making, adjudication and licensing purposes42 and in order to
be informed on matters which he is entitled to know.43

The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG, the President may create
the PTC in order to, among others, put a closure to the reported large scale graft and corruption in the government.45

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to reorganize as expressed
in Section 31 of the Revised Administrative Code? Section 31 contemplates "reorganization" as limited by the following functional and
structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice
versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to
be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question
is in the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an "alteration of an existing structure." Evidently, the PTC was not part of the
structure of the Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,46

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have
to end here. We must not lose sight of the very source of the power – that which constitutes an express grant of power. Under Section 31,
Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to
the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an
alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between
them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the
President’s continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President’s power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the
former with that of the latter.47 Clearly, the power of control is entirely different from the power to create public offices. The former is inherent
in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from Congress, empowering the President to create a public office?

According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis under P.D. 1416, as
amended by P.D. No. 1772.48 The said law granted the President the continuing authority to reorganize the national government, including
the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and
activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292
has been invoked in several cases such as Larin v. Executive Secretary.49

The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office. Said decree is already
stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to create offices and transfer appropriations pursuant to one of the
purposes of the decree, embodied in its last "Whereas" clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization of the national
government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution. In fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says "it was enacted to prepare
the transition from presidential to parliamentary. Now, in a parliamentary form of government, the legislative and executive powers are fused,
correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.


ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should not be
considered effective anymore upon the promulgation, adoption, ratification of the 1987 Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation
of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws
are faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a grant of all powers
inherent in them. The President’s power to conduct investigations to aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution
or in statutes does not mean that he is bereft of such authority.51 As explained in the landmark case of Marcos v. Manglapus:52

x x x. 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 of specific 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. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President
are not limited to those specific powers under the Constitution.53 One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine
if laws have been faithfully executed. Thus, in Department of Health v. Camposano,54 the authority of the President to issue Administrative
Order No. 298, creating an investigative committee to look into the administrative charges filed against the employees of the Department of
Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:

The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials
and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not
affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of
the latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President
is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement
of the laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies created in the past like the
PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the
government structure, the Court is not inclined to declare such executive power as non-existent just because the direction of the political
winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly,
there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the
amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, "whatever funds the Congress
has provided for the Office of the President will be the very source of the funds for the commission."55 Moreover, since the amount that would
be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate


The President’s power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows from the
faithful-execution clause of the Constitution under Article VII, Section 17 thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.57

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers have been vested in the said body as it cannot adjudicate rights of persons
who come before it. It has been said that "Quasi-judicial powers involve the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and administering the same
law."58 In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the
judiciary and must be clearly authorized by the legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition
of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe x x: to
conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included
or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the
facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal
inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial
powers: x x to award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its
strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such,
the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to
the factual conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals
or modes of review as may be provided by law.60 Even respondents themselves admit that the commission is bereft of any quasi-judicial
power.61

Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation."62 The
actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them,63 is certainly not a function
given to the commission. The phrase, "when in the course of its investigation," under Section 2(g), highlights this fact and gives credence to
a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints
before the courts remains to be with the DOJ and the Ombudsman.64

At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The
power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the
Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No.
6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of
government, the investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically out of the PTC’s sphere of functions. Its power to investigate is
limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the Ombudsman’s primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative
Code is by no means exclusive and, thus, can be shared with a body likewise tasked to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject
the recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC
for possible indictments for violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the
constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III
(Bill of Rights) of the 1987 Constitution. Section 1 reads:

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.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of singling out the "previous administration" as its sole object makes the PTC
an "adventure in partisan hostility."66 Thus, in order to be accorded with validity, the commission must also cover reports of graft and
corruption in virtually all administrations previous to that of former President Arroyo.67

The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts committed not only
during the administration of former President Arroyo but also during prior administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino people. They assail the classification formulated by the respondents
as it does not fall under the recognized exceptions because first, "there is no substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the
selective classification is not germane to the purpose of Executive Order No. 1 to end corruption."69 In order to attain constitutional
permission, the petitioners advocate that the commission should deal with "graft and grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with equal force."70

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and corruption solely during the said administration.71
Assuming arguendo that the commission would confine its proceedings to officials of the previous administration, the petitioners argue that
no offense is committed against the equal protection clause for "the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils
which the Executive Order seeks to correct."72 To distinguish the Arroyo administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous administration which have
eroded public confidence in public institutions. There is, therefore, an urgent call for the determination of the truth regarding certain reports of
large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved,
if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public
servants.

Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous
administration.

Third. The classification of the previous administration as a separate class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that
anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to issues that are pivotal to
national life or even as a routine measure of due diligence and good housekeeping by a nascent administration like the Presidential
Commission on Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the
recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created
by former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens’ committee to
investigate all the facts and circumstances surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V.
Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against
any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process
clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal
protection clause.74

"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed."75 It "requires public bodies and institutions to treat similarly situated individuals in a
similar manner."76 "The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state’s duly
constituted authorities."77 "In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not
draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."78

The equal protection clause is aimed at all official state actions, not just those of the legislature.79 Its inhibitions cover all the departments of
the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken. 80

It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such
classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.81 "Superficial differences do not make for a valid classification."82

For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.83
"The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class
should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered
by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long
as that class is substantially distinguishable from all others, does not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the
class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave
out or "underinclude" those that should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union85 and reiterated in a long line of cases,86

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require
that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption
during the previous administration"87 only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has
been made in at least three portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees,
their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of
graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations.
It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.

Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to the "previous administration" only. The reports of widespread corruption
in the Arroyo administration cannot be taken as basis for distinguishing said administration from earlier administrations which were also
blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As
Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification."88

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that "to include other past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89The reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."90

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no longer be the
subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of previous administrations, given the
body’s limited time and resources. "The law does not require the impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating almost a century’s
worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its
mandate of searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the authority to investigate
all past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and
an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all
private rights determined and all public authority administered.93 Laws that do not conform to the Constitution should be stricken down for
being unconstitutional.94While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1,
to survive, must be read together with the provisions of the Constitution. To exclude the earlier administrations in the guise of "substantial
distinctions" would only confirm the petitioners’ lament that the subject executive order is only an "adventure in partisan hostility." In the
case of US v. Cyprian,95 it was written: "A rather limited number of such classifications have routinely been held or assumed to be arbitrary;
those include: race, national origin, gender, political activity or membership in a political party, union activity or membership in a labor union,
or more generally the exercise of first amendment rights."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on existing circumstances only, or so constituted as to preclude additions to
the number included within a class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as
are the members of the class."97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal protection clause."98 "Legislation
is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach."99 It has been written that a
regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.100
In several instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the "step by step" process.101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and intentional
as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and intentional discrimination."103

To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the commission does not only confine itself
to cases of large scale graft and corruption committed during the previous administration.104The OSG points to Section 17 of Executive Order
No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of investigations of the PTC so as
to include the acts of graft and corruption committed in other past administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was
"crafted to tailor-fit the prosecution of officials and personalities of the Arroyo administration."105

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause." The decision, however, was devoid of any discussion on
how such conclusory statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its constitutionally mandated
power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference.
Is the Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine
of separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls
for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nation’s thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial Power that "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 of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on one
hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of asserting superiority over the
other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other departments; 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."107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather simply making sure
that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution. And, if after said review,
the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the
Court will not be deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its
people. But then again, it is important to remember this ethical principle: "The end does not justify the means." No matter how noble and
worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional
parameters, then it cannot still be allowed.108 The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude."109

Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a
revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not
be an affront to the Constitution. Of all the branches of the government, it is the judiciary which is the most interested in knowing the truth
and so it will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth
must be within constitutional bounds for "ours is still a government of laws and not of men."110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1.

G.R. No. 231658

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A. BILLONES, AND TEDDY
BRAWNER BAGUILAT, JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY OF THE DEPARTMENT
OF NATIONAL DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO ANO, CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, Respondents

x-----------------------x

G.R. No. 231771

EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO, CARL ANTHONY D. OLALO,
ROY JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY, AMARYLLIS H. ENRIQUEZ, ACT TEACHERS'
REPRESENTATIVE ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY REPRESENTATIVE i\RLENED.BROSAS,KABATAAN
PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN,
MARK VINCENT D. LIM, VENCER MARI CRISOSTOMO, JOVITA MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN
LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT. GENERAL EDUARDO ANO, PHILIPPINE NATIONAL
POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents

x-----------------------x

G.R. No. 231774

NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA P. MUTI-MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY DELFIN N.
LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG) SECRETARY (OFFICER-INCHARGE)
CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHEF OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL
POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C.
ESPERON, JR., Respondents.

DECISION

DEL CASTILLO, J.:

Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued Proclamation No. 216 declaring a
state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao.

The full text of Proclamation No. 216 reads as follows:

WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of
lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when the public safety requires it,
he (the President) 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 x x x';

WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that 'the crime of rebellion or insurrection is
committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives';

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group
such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass
jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several
checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces,
and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the
allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the
laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to
property not only in Lanao del Sur but also in other parts of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective
as of the date hereof.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of
martial law.

DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on May 25, 2017, a written Report
on the factual basis of Proclamation No. 216.

The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence which only escalated and
worsened with the passing of time.

Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years, we have witnessed the
perpetration of numerous acts of violence challenging the authority of the duly constituted authorities, i.e., the Zamboanga siege, the Davao
bombing, the Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups
have figured prominently in all these, namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1

The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking officers of the Abu Sayyaf Group
(ASG) and the Maute Group was conducted. These groups, which have been unleashing havoc in Mindanao, however, confronted the
government operation by intensifying their efforts at sowing violence aimed not only against the government authorities and its facilities but
likewise against civilians and their properties. As narrated in the President's Report:

On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and Maute Group operational leaders,
Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government.
Through these groups' armed siege and acts of violence directed towards civilians and government authorities, institutions and
establishments, they were able to take control of major social, economic, and political foundations of Marawi City which led to its paralysis.
This sudden taking of control was intended to lay the groundwork for the eventual establishment of a DAESH wilayat or province in
Mindanao.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred sixty-three (263) members,
fully armed and prepared to wage combat in furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has
extensive networks and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the
ASG. It adheres to the ideals being espoused by the DAESH, as evidenced by, among others, its publication of a video footage declaring its
allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well
as illegal drug money, provide financial and logistical support to the Maute Group.

The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic State and their capability to
deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives.2

In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City which impelled him to
declare a state of martial law and suspend the privilege of writ of habeas corpus, to wit:

• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on various facilities - government
and privately owned - in the City of Marawi.

• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the Bureau of Jail Management and Penology
(BJMP).

• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty personnel. BJMP personnel were
disarmed, tied, and/or locked inside the cells.

• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private vehicles).

• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard and felt everywhere. By evening,
the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply was still cut off, plunging the city into total
black-out.)
• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police Station. A patrol car of the Police
Station was also taken.

• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The Maute Group facilitated the
escape of at least sixty-eight (68) inmates of the City Jail.

• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.

• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell under the control of
these groups. They threatened to bomb the bridges to pre-empt military reinforcement.

• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi City, including Naga Street, Bangolo Street,
Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong,
Marantao, Caloocan, Banggolo, Barionaga, and Abubakar.

• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City junction.

• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nun's quarters in the
church, and the Shia Masjid Moncado Colony. Hostages were taken from the church.

• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless groups.

• Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the Marawi Central Elementary
Pilot School.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several locations. As of 0600H of
24May 2017, members of the Maute Group were seen guarding the entry gates of Amai Pakpak Hospital. They held hostage the employees
of the Hospital and took over the PhilHealth office located thereat.

• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set ablaze.

• Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its armored vehicles.
• Latest information indicates that about seventy-five percent (75%) of Marawi City has been infiltrated by lawless armed groups composed
of members of the Maute Group and the ASG. As of the time of this Report, eleven (11) members of the Armed Forces and the Philippine
National Police have been killed in action, while thirty-five (35) others have been seriously wounded.

• There are reports that these lawless armed groups are searching for Christian communities in Marawi City to execute Christians. They are
also preventing Maranaos from leaving their homes and forcing young male Muslims to join their groups.

• Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of lawless armed groups in
Marawi City, seizing public and private facilities, perpetrating killings of government personnel, and committing armed uprising against and
open defiance of the government.3

The unfolding of these events, as well as the classified reports he received, led the President to conclude that -

These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in Marawi City for their
planned establishment of a DAESH wilayat or province covering the entire Mindanao.

The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their
force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and
the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of
Mindanao, from its allegiance to the Government.

There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within
Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive
departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his
supervisory powers over local govemments.4

According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about undue constraints and difficulties
to the military and government personnel, particularly in the performance of their duties and functions, and untold hardships to the civilians,
viz.:

Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the
city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation
of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups
effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from
the city is likewise hindered.

The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money,
and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and
safety in Marawi City; they have likewise compromised the security of the entire Island of Mindanao.5

The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in Mindanao, and the Philippines as a
whole. In addition, the Report pointed out the possible tragic repercussions once Marawi City falls under the control of the lawless groups.

The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts of
Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor
passages.

Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi
City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift
and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity.6

The President ended his Report in this wise:

While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public
safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole
of Mindanao until such time that the rebellion is completely quelled.7

In addition to the Report, representatives from the Executive Department, the military and police authorities conducted briefings with the
Senate and the House of Representatives relative to the declaration of martial law.

After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 3888 expressing full support to the martial law
proclamation and finding Proclamation No. 216 "to be satisfactory, constitutional and in accordance with the law". In the same Resolution,
the Senate declared that it found "no compelling reason to revoke the same". The Senate thus resolved as follows:

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that the Senate finds the issuance of
Proclamation No. 216 to be satisfactory, constitutional and in accordance with the law. The Senate hereby supports fully Proclamation No.
216 and finds no compelling reason to revoke the sarne.9
The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives likewise issued House Resolution
No. 105010 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT
FINDS NO REASON TO REVOKE PROCLAMATION NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING
THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.

The Petitions

A) G.R. No. 231658 (Lagman Petition)

On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano, Emmanuel A. Billones, and Teddy Brawner
Baguilat, Jr. filed a Petition11 Under the Third Paragraph of Section 18 of Article VII of the 1987 Constitution.

First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because there is no rebellion or invasion in
Marawi City or in any part of Mindanao. It argues that acts of terrorism in Mindanao do not constitute rebellion12 since there is no proof that its
purpose is to remove Mindanao or any part thereof from allegiance to the Philippines, its laws, or its territory.13 It labels the flying of ISIS flag
by the Maute Group in Marawi City and other outlying areas as mere propaganda114 and not an open attempt to remove such areas from the
allegiance to the Philippine Government and deprive the Chief Executive of the assertion and exercise of his powers and prerogatives
therein. It contends that the Maute Group is a mere private army, citing as basis the alleged interview of Vera Files with Joseph Franco
wherein the latter allegedly mentioned that the Maute Group is more of a "clan's private militia latching into the IS brand theatrically to inflate
perceived capability".15 The Lagman Petition insists that during the briefing, representatives of the military and defense authorities did not
categorically admit nor deny the presence of an ISIS threat in the country but that they merely gave an evasive answer16 that "there is ISIS in
the Philippines".17 The Lagman Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed conflict in Marawi
City was precipitated or initiated by the government in its bid to capture Hapilon.18Based on said statement, it concludes that the objective of
the Maute Group's armed resistance was merely to shield Hapilon and the Maute brothers from the government forces, and not to lay siege
on Marawi City and remove its allegiance to the Philippine Republic.19 It then posits that if at all, there is only a threat of rebellion in Marawi
City which is akin to "imminent danger" of rebellion, which is no longer a valid ground for the declaration of martial law.20

Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because the President's Report
containef "false, inaccurate, contrived and hyperbolic accounts".21

It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak Medical Center. Citing online reports on the
interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman Petition insists that the Maute Group merely brought an injured
member to the hospital for treatment but did not overrun the hospital or harass the hospital personnel. 22 The Lagman Petition also refutes the
claim in the President's Report that a branch of the Landbank of the Philippines was ransacked and its armored vehicle commandeered. It
alleges that the bank employees themselves clarified that the bank was not ransacked while the armored vehicle was owned by a third party
and was empty at the time it was commandeered.23 It also labels as false the report on the burning of the Senator Ninoy Aquino College
Foundation and the Marawi Central Elementary Pilot School. It avers that the Senator Ninoy Aquino College Foundation is intact as of May
24, 2017 and that according to Asst. Superintendent Ana Alonto, the Marawi Central Elementary Pilot School was not burned by the
terrorists.24 Lastly, it points out as false the report on the beheading of the police chief of Malabang, Lanao del Sur, and the occupation of the
Marawi City Hall and part of the Mindanao State University.25

Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis since the President's Report mistakenly
included the attack on the military outpost in Butig, Lanao del Sur in February 2016, the mass jail break in Marawi City in August 2016, the
Zamboanga siege, the Davao market bombing, the Mamasapano carnage and other bombing incidents in Cotabato, Sultan Kudarat, and
Basilan, as additional factual bases for the proclamation of martial law. It contends that these events either took place long before the conflict
in Marawi City began, had long been resolved, or with the culprits having already been arrested.26

Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis considering that the President acted
alone and did not consult the military establishment or any ranking official27 before making the proclamation.

Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient factual basis owing to the fact that during
the presentation before the Committee of the Whole of the House of Representatives, it was shown that the military was even successful in
pre-empting the ASG and the Maute Group's plan to take over Marawi City and other parts of Mindanao; there was absence of any hostile
plan by the Moro Islamic Liberation Front; and the number of foreign fighters allied with ISIS was "undetermined"28 which indicates that there
are only a meager number of foreign fighters who can lend support to the Maute Group.29

Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its specific and special jurisdiction to review the
sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a Decision voiding and nullifying Proclamation No. 216" for lack of
sufficient factual basis.30

In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman Petition and set the case for oral argument
on June 13, 14, and 15, 2017.

On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed and eventually consolidated with G.R. No.
231658.32

B) G.R. No. 231771 (Cullamat Petition)


The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewise seeks the nullification of Proclamation No. 216 for
being unconstitutional because it lacks sufficient factual basis that there is rebellion in Mindanao and that public safety warrants its
declaration. 34

In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events happening in Marawi City only an not in
the entire region of Mindanao. It concludes that Proclamation No 216 "failed to show any factual basis for the imposition of martial law in the
entire Mindanao,"35 "failed to allege any act of rebellion outside Marawi City, much less x x x allege that public safety requires the imposition o
martial law in the whole of Mindanao".36

The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups to sow terror and cause death and
damage to property"37 does not rise to the level of rebellion sufficient to declare martial law in the whole of Mindanao.38 It also posits that there
is no lawless violence in other parts of Mindanao similar to that in Marawi City.39

Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last Whereas Clause of Proclamation No. 216
for being vague as it failed to identify these rebel groups and specify the acts of rebellion that they were supposedly waging.40

In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the Report of the President to Congress,
particularly the attack at the Amai Pakpak Hospital, the ambush and burning of the Marawi Police Station, the killing of five teachers of
Dansalan College Foundation, and the attacks on various government facilities.41

In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional or in the alternative, should the Court
find justification for the declaration of martial law and suspension of the privilege of the writ of habeas corpus in Marawi City, to declare the
same as unconstitutional insofar as its inclusion of the other parts of Mindanao.42

C) G.R. No. 231774 (Mohamad Petition)

The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual Basis of [the] Declaration of Martial Law and
[the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself as "a special proceeding"44 or an "appropriate proceeding filed
by any citizen"45 authorized under Section 18, Article VII of the Constitution.

The Mohamad Petition posits that martial law is a measure of last resort46 and should be invoked by the President only after exhaustion of
less severe remedies.47 It contends that the extraordinary powers of the President should be dispensed sequentially, i.e., first, the power to
call out the armed forces; second, the power to suspend the privilege of the writ of habeas corpus; and finally, the power to declare martial
law.48 It maintains that the President has no discretion to choose which extraordinary power to use; moreover, his choice must be dictated
only by, and commensurate to, the exigencies of the situation.49

According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the imposition of martial law.50 It asserts that
the Marawi incidents "do not equate to the existence of a public necessity brought about by an actual rebellion, which would compel the
imposition of martial law or the suspension of the privilege of the writ of habeas corpus".51 It proposes that "[m]artial law can only be justified if
the rebellion or invasion has reached such gravity that [its] imposition x x x is compelled by the needs of public safety"52 which, it believes, is
not yet present in Mindanao.

Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit: that the Maute Group intended to
establish an Islamic State; that they have the capability to deprive the duly constituted authorities of their powers and prerogatives; and that
the Marawi armed hostilities is merely a prelude to a grander plan of taking over the whole of Mindanao, are conclusions bereft of
substantiation.53

The Mohamad Petition posits that immediately after the declaration of martial law, and without waiting for a congressional action, a suit may
already be brought before the Court to assail the sufficiency of the factual basis of Proclamation No. 216.

Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration of martial law and the suspension of the
privilege of the writ of habeas corpus, the Mohamad Petition insists that the Court may "look into the wisdom of the [President's] actions,
[and] not just the presence of arbitrariness".54 Further, it asserts that since it is making a negative assertion, then the burden to prove the
sufficiency of the factual basis is shifted to and lies on the respondents.55 It thus asks the Court "to compel the [r]espondents to divulge
relevant information"56in order for it to review the sufficiency of the factual basis.

In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel respondents to present proof on the factual
basis [of] the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao"57 and declare as
unconstitutional Proclamation No. 216 for lack of sufficient factual basis.

The Consolidated Comment

The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court. Noting that the same coincided with the
celebration of the 119th anniversary of the independence of this Republic, the Office of the Solicitor General (OSG) felt that "defending the
constitutionality of Proclamation No. 216" should serve as "a rallying call for every Filipino to unite behind one true flag and defend it against
all threats from within and outside our shores".59

The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the authority or power to review the sufficiency of
the factual basis of the declaration of martial law.60 The OSG, however, posits that although Section 18, Article VII lays the basis for the
exercise of such authority or power, the same constitutional provision failed to specify the vehicle, mode or remedy through which the
"appropriate proceeding" mentioned therein may be resorted to. The OSG suggests that the "appropriate proceeding" referred to in Section
18, Article VII may be availed of using the vehicle, mode or remedy of a certiorari petition, either under Section 1 or 5, of Article
VIII.61Corollarily, the OSG maintains that the review power is not mandatory, but discretionary only, on the part of the Court. 62 The Court has
the discretion not to give due course to the petition.63

Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of Proclamation No. 216 should be reviewed by
the Court "under the lens of grave abuse of discretion"64 and not the yardstick of correctness of the facts.65 Arbitrariness, not correctness,
should be the standard in reviewing the sufficiency of factual basis.

The OSG maintains that the burden lies not with the respondents but with the petitioners to prove that Proclamation No. 216 is bereft of
factual basis. It thus takes issue with petitioners' attempt to shift the burden of proof when they asked the Court "to compel [the] respondents
1â wphi1

to present proof on the factual basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove"67 and that governmental actions
are presumed to be valid and constitutional.68

Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the trajectory or point of view of the President and
base on the facts available to him at the time the decision was made.69 It argues that the sufficiency of the factual basis should be examined
not based on the facts discovered after the President had made his decision to declare martial law because to do so would subject the
exercise of the President's discretion to an impossible standard.70 It reiterates that the President's decision should be guided only by the
information and data available to him at the time he made the determination.71 The OSG thus asserts that facts that were established after
the declaration of martial law should not be considered in the review of the sufficiency of the factual basis of the proclamation of martial law.
The OSG suggests that the assessment of after-proclamation facts lies with the President and Congress for the purpose of determining the
propriety of revoking or extending the martial law. The OSG fears that if the Court considers after-proclamation-facts in its review of the
sufficiency of the factual basis for the proclamation, it would in effect usurp the powers of the Congress to determine whether martial law
should be revoked or extended.72

It is also the assertion of the OSG that the President could validly rely on intelligence reports coming from the Armed Forces of the
Philippines;73 and that he could not be expected to personally determine the veracity of thecontents of the reports.74 Also, since the power to
impose martial law is vested solely on the President as Commander-in-Chief, the lack of recommendation from the Defense Secretary, or
any official for that matter, will not nullify the said declaration, or affect its validity, or compromise the sufficiency of the factual basis.

Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the President in Proclamation No. 216 and
in his Report to the Congress by merely citing news reports that supposedly contradict the facts asserted therein or by criticizing in
piecemeal the happenings in Marawi. For the OSG, the said news articles are "hearsay evidence, twice removed,"75 and thus inadmissible
and without probative value, and could not overcome the "legal presumption bestowed on governmental acts".76

Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has sufficient factual basis. It maintains that the
burden rests with the petitioners. However, the OSG still endeavors to lay out the factual basis relied upon by the President "if only to remove
any doubt as to the constitutionality of Proclamation No. 216".77

The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's Ruling.

ISSUES

The issues as contained in the revised Advisory78 are as follows:

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate proceeding" covered by Paragraph
3, Section 18, Article VII of the Constitution sufficient to invoke the mode of review required of this Court when a declaration of martial law or
the suspension of the privilege of the writ of habeas corpus is promulgated;

2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas corpus:

a. is required to be factually correct or only not arbitrary in his appreciation of facts;

b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense;

c. is required to take into account only the situation at the time of the proclamation, even if subsequent events prove the situation to have not
been accurately reported;

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus is independent of the actual actions that have been taken by Congress jointly or separately;

4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus;

a. What are the parameters for review?


b. Who has the burden of proof?

c. What is the threshold of evidence?

5. Whether the exercise of the power of judicial review by this Court involves the calibration of graduated powers granted the President as
Commander-in-Chief, namely calling out powers, suspension of the privilege of the writ of habeas corpus, and declaration of martial law;

6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void:

a. with its inclusion of "other rebel groups;" or

b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;

7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are sufficient
[bases]:

a. for the existence of actual rebellion; or

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire Mindanao 1 region;

8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements of public safety sufficient
to declare martial law or suspend the privilege of the writ of habeas corpus; and

9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:

a. have the effect of recalling Proclamation No. 55 s. 2016; or

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in Marawi and other parts of the Mindanao
region.

After the oral argument, the parties submitted their respective memoranda and supplemental memoranda.

OUR RULING
I. Locus standi of petitioners.

One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought before [the Court] by a party having the
requisite 'standing' to challenge it."79 As a general rule, the challenger 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."80 Over the years, there has been a trend towards relaxation of the
rule on legal standing, a prime example of which is found in Section 18 of Article VII which provides that any citizen may file the appropriate
proceeding to assail the sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of the writ of
habeas corpus. "[T]he only requisite for standing to challenge the validity of the suspension is that the challenger be a citizen. He need not
even be a taxpayer."81

Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the Republic;"82 similarly, petitioners in the Mohamad
Petition all claim to be "Filipino citizens, all women, all of legal [age], and residents of Marawi City".83 In the Lagman Petition, however,
petitioners therein did not categorically mention that they are suing's citizens but merely referred to themselves as duly elected
Representatives.84 That they are suing in their official capacities as Members of Congress couLd have elicited a vigorous discussion
considering the issuance by the House of Representatives of House Resolution No. 1050 expressing full support to President Duterte and
finding no reason to revoke Proclamation No. 216. By such resolution, the House of Representatives is declaring that it finds no reason to
review the sufficiency of the factual basis of the martial law declaration, which is in direct contrast to the views and arguments being
espoused by the petitioners in the Lagman Petition. Considering, however, the trend towards relaxation of the rules on legal standing, as
well as the transcendental issues involved in the present Petitions, the Court will exercise judicial self-restraint85 and will not venture into this
matter. After all, "the Court is not entirely without discretion to accept a suit which does not satisfy the requirements of a [bona fide] case or of
standing. Considerations paramount to [the requirement of legal standing] could compel assumption of jurisdiction."86 In any case, the Court
can take judicial cognizance of the fact that petitioners in the Lagman Petition are all citizens of the Philippines since Philippine citizenship is
a requirement for them to be elected as representatives. We will therefore consider them as suing in their own behalf as citizens of this
country. Besides, respondents did not question petitioners' legal standing.

II. Whether or not the petitions are the


"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.

All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII (Executive Department) of the
1987 Constitution which provides:

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis 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.

During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph of Section 18, Article VII is sui
generis.87 It is a special and specific jurisdiction of the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.88

The Court agrees.

a) Jurisdiction must be
specifically conferred by the
Constitution or by law.

It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the law.89 Unless jurisdiction has been
specifically conferred by the Constitution or by some legislative act, no body or tribunal has the power to act or pass upon a matter brought
before it for resolution. It is likewise settled that in the absence of a clear legislative intent, jurisdiction cannot be implied from the language of
the Constitution or a statute.90 It must appear clearly from the law or it will not be held to exist.91

A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the Court to determine the sufficiency
of the factual basis of the proclamation of martial law or suspension of the privilege of the writ of habeas corpus.

b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII

It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate proceeding" would refer to a Petition
for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a petition for certiorari is whether the respondent has
committed any grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is not
the proper tool to review the sufficiency of the factual basis of the proclamationor suspension. It must be emphasized that under Section 18,
Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency powers. Put differently, if
this Court applies the standard of review used in a petition for certiorari, the same would emasculate its constitutional task under Section 18,
Article VII.

c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.

The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to constitutionalize the pre-Marcos martial
law ruling of this Court in In the Matter of the Petition for Habeas Corpus of Lansang,92 to wit: that the factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus is not a political question but precisely within the ambit of judicial
review.

"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of the times out of which it grew and to which
it may be rationally supposed to bear some direct relationship, the evils intended to be remedied, and the good to be accomplished are
proper subjects of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission that drafted the 1987
Constitution, explained:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to impose authoritarian rule on the
Philippines from 1972 to 1986. Supreme Court decisions during that period upholding the actions taken by Mr. Marcos made authoritarian
rule part of Philippine constitutional jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went
about reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed during the authoritarian years.
The new formula included revised grounds for the activation of emergency powers, the manner of activating them, the scope of the powers,
and review of presidential action.94 (Emphasis supplied)

To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide whether there is a state of rebellion
requiring the suspension of the privilege of the writ of habeas corpus is lodged with the President and his decision thereon is final and
conclusive upon the courts. This ruling was reversed in the 1971 case of Lansang where it was held that the factual basis of the declaration
of martial law and the suspension of the privilege of the writ of habeas corpus is not a political question and is within the ambit of judicial
review.96 However, in 1983, or after the declaration of martial law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v.
Enrile,97 abandoned the ruling in Lansang and reverted to Montenegro. According to the Supreme Court, the constitutional power of the
President to suspend the privilege of the writ of habeas corpus is not subject to judicial inquiry.98

Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and suspension of the privilege of the
writ of habeas corpus, the framers of the 1987 Constitution in effect constitutionalized and reverted to the Lansang doctrine.

d) Purpose of Section 18,


Article VII is to provide additional
safeguard against possible abuse by
the President on the exercise of the
extraordinary powers.

Section 18, Article VII is meant to provide additional safeguard against possible abuse by the President in the exercise of his power to
declare martial law or suspend the privilege of the writ of habeas corpus. Reeling from the aftermath of the Marcos martial law, the framers of
the Constitution deemed it wise to insert the now third paragraph of Section 18 of Article VII.99 This is clear from the records of the
Constitutional Commission when its members were deliberating on whether the President could proclaim martial law even without the
concurrence of Congress. Thus:

MR. SUAREZ. Thank you, Madam President.

The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively unto the President the right
to determine the factors which may lead to the declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular, phrase. May we be informed of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this phrase, even during the
discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual invasion or rebellion. In these situations, the
President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it
automatically terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the President to determine these
factors, especially the existence of an invasion or rebellion and the second factor of determining whether the public safety requires it or not,
may I call the attention of the Gentleman to what happened to us during the past administration. Proclamation No. 1081 was issued by
Ferdinand E. Marcos in his capacity as President of the Philippines by virtue of the powers vested upon him purportedly under Article VII,
Section 10 (2) of the Constitution, wherein he made this predicate under the "Whereas" provision:

Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists and other armed aggrupations
organized to overthrow the Republic of the Philippines by armed violence and force have assumed the magnitude of an actual state of war
against our people and the Republic of the Philippines.

And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by Ferdinand E. Marcos, in his capacity as
Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein
he said, among other things:

Whereas, martial law having been declared because of wanton destruction of lives and properties, widespread lawlessness and anarchy
and chaos and disorder now prevailing throughout the country, which condition has been brought about by groups of men who are actively
engaged in a criminal conspiracy to seize political and state power in the Philippines in order to take over the government by force and
violence, the extent of which has now assumed the proportion of an actual war against our people and the legitimate government ...

And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare martial law in our country without
justifiable reason. Would the Gentleman still insist on the deletion of the phrase 'and, with the concurrence of at least a majority of all the
members of the Congress'?

MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an aberration in our history and national
consciousness. But given the possibility that there would be another Marcos, our Constitution now has sufficient safeguards. As I said, it is
not really true, as the Gentleman has mentioned, that there is an exclusive right to determine the factual basis because the paragraph
beginning on line 9 precisely tells us that the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate
its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And here we are trying to
balance the public interest in case of invasion or rebellion as against the rights of citizens. And I am saying that there are enough safeguards,
unlike in 1972 when Mr. Marcos was able to do all those things mentioned.100

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the President's proclamation of martial
law or suspension of the privilege of the writ of habeas corpus within the ambit of judicial review, it also relaxed the rule on standing by
allowing any citizen to question before this Court the sufficiency of the factual basis of such proclamation or suspension. Moreover, the third
paragraph of Section 18, Article VII veritably conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis
of said proclamation or suspension. It further designated this Court as the reviewing tribunal to examine, in an appropriate proceeding, the
sufficiency of the factual basis and to render its decision thereon within a limited period of 30 days from date of filing.

e) Purpose of Section 18,


Article VII is to curtail the extent of
the powers of the President.
The most important objective, however, of Section 18, Article VII is the curtailment of the extent of the powers of the Commander-in-Chief.
This is the primary reason why the provision was not placed in Article VIII or the Judicial Department but remained under Article VII or the
Executive Department.

During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz Palma expressed her sentiments on
the 1987 Constitution. She said:

The executive power is vested in the President of the Philippines elected by the people for a six-year term with no reelection for the duration
of his/her life. While traditional powers inherent in the office of the President are granted, nonetheless for the first time, there are specific
provisions which curtail the extent of such powers. Most significant is the power of the Chief Executive to suspend the privilege of the writ of
habeas corpus or proclaim martial law.

The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial law for more than eight years
and the suspension of the privilege of the writ even after the lifting of martial law in 1981. The new Constitution now provides that those
powers can be exercised only in two cases, invasion or rebellion when public safety demands it, only for a period not exceeding 60 days,
and reserving to Congress the power to revoke such suspension or proclamation of martial law which congressional action may not be
revoked by the President. More importantly, the action of the President is made subject to judicial review, thereby again discarding
jurisprudence which render[s] the executive action a political question and beyond the jurisdiction of the courts to adjudicate.

For the first time, there is a provision that the state of martial law does not suspend the operation of the Constitution nor abolish civil courts or
legislative assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the privilege of the writ. Please forgive me if, at this
point, I state that this constitutional provision vindicates the dissenting opinions I have written during my tenure in the Supreme Court in the
martial law cases.101

f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.

To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded jurisdiction of this Court would,
therefore, contradict the clear intention of the framers of the Constitution to place additional safeguards against possible martial law abuse
for, invariably, the third paragraph of Section 18, Article VII would be subsumed under Section 1 of Article VIII. In other words, the framers of
the Constitution added the safeguard under the third paragraph of Section 18, Article VII on top of the expanded jurisdiction of this Court.
g) Jurisdiction of the Court is
not restricted to those enumerated in
Sections I and 5 of Article VIII

The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For instance, its jurisdiction to be the
sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President can be found in the last
paragraph of Section 4, Article VII.102 The power of the Court to review on certiorari the decision, order, or ruling of the Commission on
Elections and Commission on Audit can be found in Section 7, Article IX(A).103

h) Unique features of the third


paragraph of Section 18, Article VII
make it sui generis.

The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated as sui generis separate and
different from those enumerated in Article VIII. Under the third paragraph of Section 18, Article VII, a petition filed pursuant therewith will
follow a different rule on standing as any citizen may file it. Said provision of the Constitution also limits the issue to the sufficiency of the
factual basis of the exercise by the Chief Executive of his emergency powers. The usual period for filing pleadings in Petition for Certiorari is
likewise not applicable under the third paragraph of Section 18, Article VII considering the limited period within which this Court has to
promulgate its decision.

A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and defended, the manner of intervening in suits, of
conducting them, the mode of deciding them, of opposing judgments, and of executing."104In fine, the phrase "in an appropriate proceeding"
appearing on the third paragraph of Section 18, Article VII refers to any action initiated by a citizen for the purpose of questioning the
sufficiency of the factual basis of the exercise of the Chief Executive's emergency powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.

III. The power of the Court to review the


sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.

During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-equal branches of the Government: on'
the part of the President as Commander-in-Chief, in resorting to his extraordinary powers to declare martial law and suspend the privilege of
the writ of habeas corpus; and on the part of Congress, in giving its imprimatur to Proclamation No. 216 and not revoking the same.

The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the President as Commander-in-Chief and the
review of the said presidential action. In particular, the President's extraordinary powers of suspending the privilege of the writ of habeas
corpus and imposing martial law are subject to the veto powers of the Court and Congress.

a) The judicial power to review


versus the congressional power to
revoke.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the ground of lack of sufficient
factual basis. On the other hand, Congress may revoke the proclamation or suspension, which revocation shall not be set aside by the
President.

In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the information and data
available to the President prior to or at the time of the declaration; it is not allowed td "undertake an independent investigation beyond the
pleadings."106 On the other hand, Congress may take into consideration not only data available prior to, but likewise events supervening the
declaration. Unlike the Court I which does not look into the absolute correctness of the factual basis as will be discussed below, Congress
could probe deeper and further; it can delve into the accuracy of the facts presented before it.

In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an appropriate proceeding" by a citizen. On the
other hand, Congress' review mechanism is automatic in the sense that it may be activated by Congress itself at any time after the
proclamation or suspension was made.

Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but likewise independent from
each other although concededly, they have the same trajectory, which is, the nullification of the presidential proclamation. Needless to say,
the power of the Court to review can be exercised independently from the power of revocation of Congress.

b) The framers of the 1987


Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.
If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and Congress with veto powers independently
from each other, we quote the following exchange:

MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress will be able to revoke such
proclamation.

MR. RAMA. Yes.

MS. QUESADA. But now, if they cannot meet because they have been arrested or that the Congress has been padlocked, then who is going
to declare that such a proclamation was not warranted?

xxxx

MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A petition for a writ of habeas
corpus, if the Members are detained, can immediately be applied for, and the Supreme Court shall also review the factual basis. x x x107

c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo

Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set aside its pronouncement in Fortun v.
President Macapagal-Arroyo108 to the effect that:

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the
proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the
Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ
of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.109

xxxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of
it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis. x x x110
By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same to Congress as well as:
abdicated from its bounden duty to review. Worse, the Court considered' itself just on stand-by, waiting and willing to act as a substitute in
case Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set aside in this proceeding.111

We, therefore, hold that the Court can simultaneously exercise its power of review with, and independently from, the power to revoke by
Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review.

IV. The judicial power to review the sufficiency


of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.

The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the armed forces; b) suspending the privilege of
the writ of habeas corpus; and c) declaring martial law.112 These powers may be resorted to only under specified conditions.

The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the "grounds for the activation of
emergency powers, the manner of activating them, the scope of the powers, and review of presidential action."113

a) Extraordinary powers of the


President distinguished.

Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police action.114 The President may
resort to this extraordinary power whenever it becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. "[T]he
power to call is fully discretionary to the President;"115 the only limitations being that he acts within permissible constitutional boundaries or in
a manner not constituting grave abuse of discretion.116 In fact, "the actual use to which the President puts the armed forces is x x x not subject
to judicial review."117

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when
there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution imposed the following limits in the exercise of these
powers: "(1) a time limit of sixty days; (2) review and possible revocation by Congress; [and] (3) review and possible nullification by the
Supreme Court."118
The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger thereof' as grounds for the suspension of the
privilege of the writ of habeas corpus or declaration of martial law.119 They perceived the phrase "imminent danger" to be "fraught with
possibilities of abuse;"120 besides, the calling out power of the President "is sufficient for handling imminent danger."121

The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and suppression of civil rights
and individual freedom. Thus, the declaration of martial law serves as a warning to citizens that the Executive Department has called upon
the military to assist in the maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and
punishment, not act in a manner that will render it more difficult to restore order and enforce the law.122 As such, their exercise requires more
stringent safeguards by the Congress, and review by the Court.123

b) What really happens during martial law?

During the oral argument, the following questions cropped up: What really happens during the imposition of martial law? What powers could
the President exercise during martial law that he could not exercise if there is no martial law? Interestingly, these questions were also
discussed by the framers of the 1987 Constitution, viz.:

FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of
the President to call on the armed forces? The first and second lines in this provision state:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case of Aquino v. COMELEC where the
Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state
of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was:
During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in
an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theater of
war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of
martial law as it was developed especially in American jurisprudence, where martial law has reference to the theater of war.124

xxxx
FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial law; meaning, limiting it to martial law as
it has existed in the jurisprudence in international law, that it is a law for the theater of war. In a theater of war, civil courts are unable to
function. If in the actual theater of war civil courts, in fact, are unable to function, then the military commander is authorized to give
jurisdiction even over civilians to military courts precisely because the civil courts are closed in that area. But in the general area where the
civil courts are open then in no case can the military courts be given jurisdiction over civilians. This is in reference to a theater of war where
the civil courts, in fact, are unable to function.

MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical area.

FR. BERNAS. That is correct.

MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief.

FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The understanding here is that the phrase 'nor authorize
the conferment of jurisdiction on military courts and agencies over civilians' has reference to the practice under the Marcos regime where
military courts were given jurisdiction over civilians. We say here that we will never allow that except in areas where civil courts are, in fact,
unable to function and it becomes necessary for some kind of court to function.125

A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the
Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure public safety and in place of
government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the
State.126

In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice Mendoza) Statement before the Senate
Committee on Justice on March 13, 2006, stated that under a valid declaration of martial law, the President as Commander-in-Chief may
order the "(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees x x x".128

Worthy to note, however, that the above-cited acts that the President may perform do not give him unbridled discretion to infringe on the
rights of civilians during martial law. This is because martial law does not suspend the operation of the Constitution, neither does it supplant
the operation of civil courts or legislative assemblies. Moreover, the guarantees under the Bill of Rights remain in place during its pendency.
And in such instance where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those judicially
charged with rebellion or offenses connected with invasion.129
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties,130 the Constitution has safeguards against the
President's prerogative to declare a state of martial law.

c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of 'graduated power[s]'. 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."131 It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner
refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called "graduation of powers" does not
dictate or restrict the manner by which the President decides which power to choose.

These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore necessarily follows
that the power and prerogative to determine whether the situation warrants a mere exercise of the calling out power; or whether the situation
demands suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least
initially, with the President. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a
judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address
exigencies or threats that endanger the government, and the very integrity of the State.132

It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision pertaining to which
extraordinary power to avail given a set of facts or conditions. To do so would be tantamount to an incursion into the exclusive domain of the
Executive and an infringement on the prerogative that solely, at least initially, lies with the President.

d) The framers of the 1987


Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.

The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of the Congress in the initial imposition of
martial law or suspension of the privilege of the writ of habeas corpus further supports the conclusion that judicial review does not include
the calibration of the President's decision of which of his graduated powers will be availed of in a given situation. Voting 28 to 12, the framers
of the 1987 Constitution removed the requirement of congressional concurrence in the first imposition of martial law and suspension of the
privilege.133

MR. PADILLA.x x x

We all agree with the suspension of the writ or the proclamation of martial law should not require beforehand the concurrence of the majority
of the Members of the Congress. However, as provided by the Committee, the Congress may revoke, amend, or shorten or even increase
the period of such suspension.134

xxxx

MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial law there is no need for
concurrence of the Members of Congress because the provision says 'in case of actual invasion or rebellion.' If there is actual invasion and
rebellion, as Commissioner Crispino de Castro said, there is a need for immediate response because there is an attack. Second, the fact of
securing a concurrence may be impractical because the roads might be blocked or barricaded. x x x So the requirement of an initial
concurrence of the majority of all Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.

Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.

And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is subject to judicial review
at any point in time. So on that basis, I agree that there is no need for concurrence as a prerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x135

xxxx

MR. SUAREZ. Thank you.

The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and, with the concurrence of at least a majority of
all the Members of the Congress...'

MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ of habeas corpus or also the declaration of
martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative of the President?

MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be shortened by the Congress or the Senate
because the next sentence says that the Congress or the Senate may even revoke the proclamation.136

xxxx

MR. SUAREZ. x x x

The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively unto the President the right
to determine the factors which may lead to the declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular phrase. May we be informed of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this phrase, even during the
discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual invasion or rebellion. In these situations, the
President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it
automatically terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

xxxx

MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration in our history and national
consciousness. But given the possibility that there would be another Marcos, our Constitution now has sufficient safeguards. As I said, it is
not really true, as the Gentleman mentioned, that there is an exclusive right to determine the factual basis because the paragraph being on
line 9 precisely tells us that the Supreme court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its
decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And here we are trying to
balance the public interest in case of invasion or rebellion as against the rights of citizens. x x x

MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?

MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we are looking for are safeguards that
arereasonable and, I believe, adequate at this point. On the other hand, in case of invasion or rebellion, even during the first 60 days when
the intention here is to protect the country in that situation, it would be unreasonable to ask that there should be a concurrence on the part of
the Congress, which situation is automatically terminated at the end of such 60 days.

xxxx

MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check on this awesome power of the Chief
Executive acting as Commander-in-Chief?

MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those conditions.

MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?

MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of Congress would be available; and, secondly,
the President will be able to act quickly in order to deal with the circumstances.

MR. SUAREZ. So, we would be subordinating actual circumstances to expediency?

MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event of an invasion or a rebellion.137

The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a priori in the President's choice of
extraordinary powers.

e) The Court must similarly


and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.

It cannot be overemphasized that time is paramount in situations necessitating the proclamation of martial law or suspension of the privilege
of the writ of habeas corpus. It was precisely this time element that prompted the Constitutional Commission to eliminate the requirement of
1 concurrence of the Congress in the initial imposition by the President of martial law or suspension of the privilege of the writ of habeas
corpus.
Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas corpus is now anchored on actual
invasion or rebellion and when public safety requires it, and is no longer under threat or in imminent danger thereof, there is a necessity and
urgency for the President to act quickly to protect the country.138The Court, as Congress does, must thus accord the President the same
leeway by not wading into the realm that is reserved exclusively by the Constitution to the Executive Department.

j) The recommendation of the


Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.

Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-ranking military officials, is not a
condition for the President to declare martial law. A plain reading of Section 18, Article VII of the Constitution shows that the President's
power to declare martial law is not subject to any condition except for the requirements of actual invasion or rebellion and that public safety
requires it. Besides, it would be contrary to common sense if the decision of the President is made dependent on the recommendation of his
mere alter ego. Rightly so, it is only on the President and no other that the exercise of the powers of the Commander-in-Chief under Section
18, Article VII of the Constitution is bestowed.

g) In any event, the President


initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.

At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial law on May 23, 201 7, the President had
already issued Proclamation No. 55 on September 4, 2016, declaring a state of national emergency on account of lawless violence in
Mindanao. This, in fact, is extant in the first Whereas Clause of Proclamation No. 216. Based on the foregoing presidential actions, it can be
gleaned that although there is no obligation or requirement on his part to use his extraordinary powers on a graduated or sequential basis,
still the President made the conscious anddeliberate effort to first employ the most benign from among his extraordinary powers. As the
initial and preliminary step towards suppressing and preventing the armed hostilities in Mindanao, the President decided to use his calling
out power first. Unfortunately, the situation did not improve; on the contrary, it only worsened. Thus, exercising his sole and exclusive
prerogative, the President decided to impose martial law and suspend the privilege of the writ of habeas corpus on the belief that the armed
hostilities in Mindanao already amount to actual rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may
be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.

Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of the phrase "other rebel groups"139 in its
Whereas Clause and for lack of available guidelines specifying its actual operational parameters within the entire Mindanao region, making
the proclamation susceptible to broad interpretation, misinterpretation, or confusion.

This argument lacks legal basis.

a) Void-for-vagueness doctrine.

The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence must necessarily guess at its meaning and
differ as to its application."140 "[A] statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. [In such instance, the statute] is repugnant to the Constitution
in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle."141

b) Vagueness doctrine applies


only in free speech cases.

The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases.142 A facial challenge is allowed to be made to a vague statute and also to one which is overbroad
because of possible "'chilling effect' on protected speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence."143

It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are not appropriate for testing the
validity of penal statutes.144 Justice Mendoza explained the reason as follows:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected
speech. The theory is that ' [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free speech.

xxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their faces' statutes in free
speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that'one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant.' x x x145

Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes entirely on the ground that they
might beapplied to parties not before the Court whose activities are constitutionally protected.146 "Such invalidation would constitute a
departure from the usual requirement of 'actual case and controversy' and permit decisions to be made in a sterile abstract context having
no factual concreteness."147

c) Proclamation No. 216


cannot be facially challenged using
the vagueness doctrine.

Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. Proclamation No. 216 does not regulate speech,
religious freedom, and other fundamental rights that may be facially challenged.148 What it seeks to penalize is conduct, not speech.
As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No. 1017, issued by then President Gloria
Macapagal-Arroyo declaring a state of national emergency, on ground o vagueness is uncalled for since a plain reading of Proclamation No.
10171 shows that it is not primarily directed at speech or even speech-related1 conduct. It is actually a call upon the Armed Forces of the
Philippines (AFP) to prevent or suppress all forms of lawless violence. Like Proclamation No. 1017, Proclamation No. 216 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

d) Inclusion of "other rebel


groups " does not make Proclamation
No.216 vague.

The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad interpretation, misinterpretation, and
confusion, cannot be sustained.

In People v. Nazario,150 the Court enunciated that:

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of common intelligence must
necessarily guess at its meaning and differ as to its application.' It is repugnant to the Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates
v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegal for 'three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying to persons passing by.' Clearly, the ordinance imposed no standard at all
'because one may never know in advance what annoys some people but does not annoy others.'

Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on its face. It is to be distinguished,
however, from legislation couched in imprecise language - but which nonetheless specifies a standard though defectively phrased - in which
case, it may be 'saved' by proper construction.151

The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the words that accompany it. Verily,
the text of Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 55, which it cited by way of reference in its
Whereas clauses.

e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.

Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has no guidelines specifying its actual
operational parameters within the entire Mindanao region. Besides, operational guidelines will serve only as mere tools for the
implementation of the proclamation. In Part III, we declared that judicial review covers only the sufficiency of information or data available to
or known to the President prior to, or at the time of, the declaration or suspension. And, as will be discussed exhaustively in Part VII, the
review will be confined to the proclamation itself and the Report submitted to Congress.

Clearly, therefore, there is no need for the Court to determine the constitutionality of the implementing and/or operational guidelines, general
orders, arrest orders and other orders issued after the proclamation for being irrelevant to its review. Thus, any act committed under the said
orders in violation of the Constitution and the laws, such as criminal acts or human rights violations, should be resolved in a separate
proceeding. Finally, there is a risk that if the Court wades into these areas, it would be deemed as trespassing into the sphere that is
reserved exclusively for Congress in the exercise of its power to revoke.

VI. Whether or not nullifying Proclamation No.


216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.

a) The calling out power is in a


different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.

The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national emergency on account of
lawless violence in Mindanao through Proclamation No. 55 dated September 4, 2016, where he called upon the Armed Forces and the
Philippine National 1 Police (PNP) to undertake such measures to suppress any and all forms of lawless violence in the Mindanao region,
and to prevent such lawless violence from spreading and escalating elsewhere in the Philippines.
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different category from the power to suspend the privilege of
the writ of habeas corpus and the power to declare martial law:

x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However,
there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The
distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of
the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification.153

In other words, the President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the
writ of habeas corpus and to declare martial law, although, of course, it may also be a prelude to a possible future exercise of the latter
powers, as in this case.

Even so, the Court's review of the President's declaration of martial law and his calling out the Armed Forces necessarily entails separate
proceedings instituted for that particular purpose.

As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion may only be examined by the Court as to whether such power was exercised within
permissible constitutional limits or in a manner constituting grave abuse of discretion.155

In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to sufficiently comply with the requisites of
locus standi, as it was not able to show any specific injury which it had suffered or could suffer by virtue of President Joseph Estrada's order
deploying the Philippine Marines to join the PNP in visibility patrols around the metropolis.156

This locus standi requirement, however, need not be complied with in so far as the Court's jurisdiction to review the sufficiency of the factual
basis of the President's declaration of martial law or suspension of the privilege ofthe writ of habeas corpus is concerned. In fact, by
constitutional design, such review may be instituted by any citizen before the Court,157 without the need to prove that he or she stands to
sustain a direct and personal injury as a consequence of the questioned Presidential act/s.

But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial law in this case, such ruling could not
affect the President's exercise of his calling out power through Proclamation No. 55.

b) The operative fact doctrine.


Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President done pursuant thereto. Under the
"operative fact doctrine," the unconstitutional statute is recognized as an "operative fact" before it is declared unconstitutional.158

Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. 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 or the Constitution.' The
above provision of the Civil Code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers
no rights, imposes no duties, and affords no protection. This doctrine admits of qualifications, however. As the American Supreme Court
stated: 'The actual existence of a statute prior to such a determination [of constitutionality], is an operative fact and may have consequences
which cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to the invalidity may have to be
considered in various aspects, - with respect to particular regulations, individual and corporate, and particular conduct, private and official.

The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the measure for the validity of
legislative or executive acts. Clearly then, neither the legislative nor the executive branch, and for that matter much less, this Court, has
power under the Constitution to act contrary to its terms. Any attempted exercise of power in violation of its provisions is to that extent
unwarranted and null.

The growing awareness of the role of the judiciary as the governmental organ which has the final say on whether or not a legislative or
executive measure is valid leads to a more appreciative attitude of theemerging concept that a declaration of nullity may have legal
consequences which the more orthodox view would deny. That for a period of time such a statute, treaty, executive order, or ordinance was
in 'actual existence' appears to be indisputable. What is more appropriate and logical then than to consider it as 'an operative fact?'
(Emphasis supplied)159

However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would repulse any challenge to acts
performed during the effectivity of martial law or suspension of the privilege of the writ of habeas corpus, purportedly in furtherance of
quelling rebellion or invasion, and promotion of public safety, when evidence shows otherwise.

VII. The Scope of the Power to Review.

a) The scope of the power of


review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.

To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang,160 which was decided under the 1935
Constitution,161 held that it can inquire into, within proper bounds, whether there has been adherence to or compliance with the
constitutionally-imposed limitations on the Presidential power to suspend the privilege of the writ of habeas corpus.162 "Lansang limited the
review function of the Court to a very prudentially narrow test of arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as
follows:

What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer that its power was '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. More specifically, the Court said that its power was not 'even
comparable with its power over civil or criminal cases elevated thereto by appeal...in which cases the appellate court has all the powers of
the courtof origin,' nor to its power of quasi-judicial administrative decisions where the Court is limited to asking whether 'there is some
evidentiary basis' for the administrative finding. Instead, the Court accepted the Solicitor General's suggestion that it 'go no further than to
satisfy [itself] not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension
of the writ, but that in suspending the writ, the President did not act arbitrarily.'164

Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for judicial review based on the
determination of the sufficiency of the factual bases, has in fact done away with the test of arbitrariness as provided in Lansang.

b) The "sufficiency of factual


basis test".

Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution are presumed to know the prevailing
jurisprudence at the time they were drafting the Constitution. Thus, the phrase "sufficiency of factual basis" in Section 18, Article VII of the
Constitution should be understood as the only test for judicial review of the President's power to declare martial law and suspend the
privilege of the writ of habeas corpus under Section 18, Article VII of the Constitution. The Court does not need to satisfy itself that the
President's decision is correct, rather it only needs to determine whether the President's decision had sufficient factual bases.

We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the introduction of the "sufficiency of the factual
basis" test.

As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the privilege of the writ of habeas
corpus, subject to the revocation of Congress and the review of this Court. Since the exercise of these powers is a judgment call of the
President, the determination of this Court as to whether there is sufficient factual basis for the exercise of such, must be based only on facts
or information known by or available to the President at the time he made the declaration or suspension, which facts or information are found
in the proclamation as well as the written Report submitted by him to Congress. These may be based on the situation existing at the time the
declaration was made or past events. As to how far the past events should be from the present depends on the President.

Past events may be considered as justifications for the declaration and/or suspension as long as these are connected or related to the
current situation existing at the time of the declaration.

As to what facts must be stated in the proclamation and the written Report is up to the President.165 As Commander-in-Chief, he has sole
discretion to determine what to include and what not to include in the proclamation and the written Report taking into account the urgency of
the situation as well as national security. He cannot be forced to divulge intelligence reports and confidential information that may prejudice
the operations and the safety of the military.

Similarly, events that happened after the issuance of the proclamation, which are included in the written report, cannot be considered in
determining the sufficiency of the factual basis of the declaration of martial law and/or the suspension of the privilege of the writ of habeas
corpus since these happened after the President had already issued the proclamation. If at all, they may be used only as tools, guides or
reference in the Court's determination of the sufficiency of factual basis, but not as part or component of the portfolio of the factual basis
itself.

In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or
totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him
due to the urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him and therefore
impede the process of his decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the
correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to dictate. Such a scenario,
of course, would not only place the President in peril but would also defeat the very purpose of the grant of emergency powers upon him,
that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the emergency".166 Possibly,
by the time the President is satisfied with the correctness of the facts in his possession, it would be too late in the day as the invasion or
rebellion could have already escalated to a level that is hard, if not impossible, to curtail.

Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible evidence that the President ca
appraise and to which he can anchor his judgment,167 as appears to be the case here.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J. Velasco Jr. in Fortun:

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the Philippines and the Philippine
National Police, considering that the matter of the supposed armed uprising was within their realm of competence, and that a state of
emergency has also been declared in Central Mindanao to prevent lawless violence similar to the 'Maguindanao massacre,' which may be
an indication that there is a threat to the public safety warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the writ of habeas corpus. The
Constitution, as couched, does not require precision in establishing the fact of rebellion. The President is called to act as public safety
requires.168

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law even only on the basis of
intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent events prove that the situation had not been accurately
reported to him.

After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the declaration or suspension;
subsequent events do not have any bearing insofar as the Court's review is concerned. In any event, safeguards under Section 18, Article
VII of the Constitution are in place to cover such a situation, e.g., the martial law period is good only for 60 days; Congress may choose to
revoke it even immediately after the proclamation is made; and, this Court may investigate the factual background of the declaration.169

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or inaccuracies in some of the facts
stated in the proclamation and the written report are not enough reasons for the Court to invalidate the declaration and/or suspension as
long as there are other facts in the proclamation and the written Report that support the conclusion that there is an actual invasion or
rebellion and that public safety requires the declaration and/or suspension.

In sum, the Court's power to review is limited to the determination of whether the President in declaring martial law and suspending the
privilege of the writ of habeas corpus had sufficient factual basis. Thus, our review would be limited to an examination on whether the
President acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration
or suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus.

VIII. The parameters for determining the


sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.
a) Actual invasion or rebellion,
and public safety requirement.

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the declaration of martial law and/or
the suspension of the privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the
exercise of such power."170 Without the concurrence of the two conditions, the President's declaration of martial law and/or suspension of the
privilege of the writ of habeas corpus must be struck down.

As a general rule, a word used in a statute which has a technical or legal meaning, is construed to have the same technical or legal
meaning.171 Since the Constitution did not define the term "rebellion," it must be understood to have the same meaning as the crime of
"rebellion" in the Revised Penal Code (RPC).172

During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner Florenz D. Regalado alluded to actual
rebellion as one defined under Article 134 of the RPC:

MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion. Does the Committee mean
that there should be actual shooting or actual attack on the legislature or Malacañang, for example? Let us take for example a contemporary
event - this Manila Hotel incident, everybody knows what happened. Would the Committee consider that an actual act of rebellion?

MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code, that presupposes an
actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134 and by the means employed under Article
135. x x x173

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of the RPC. To give it a different
definition would not only create confusion but would also give the President wide latitude of discretion, which may be abused - a situation
that the Constitution see k s to prevent.174

Article 134 of the RPC states:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising publicly and taking arms
against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands
or any part ther