10. G.R. No.

101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,

minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO,
all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,

vs.

THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have
a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well
as generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has
a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests
in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area
should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per
cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as
the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil
fertility and agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes,
(d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and
other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which
result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan
of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic
uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to
process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation
are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
— nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph
6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage
and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State —
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and
efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and
violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that
(1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In
the said order, not only was the defendant's claim — that the complaint states no cause of action
against him and that it raises a political question — sustained, the respondent Judge further ruled that
the granting of the relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of
the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section
3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the
1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept
of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They therefore assert
that the petitioners' resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by
the State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject
matter of the complaint is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all concerned interests. Hence, all
the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers

the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right
for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of
the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short
of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence
to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same
article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of
the civil and political rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and advance the second, the day would not be too
far when all else would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and
noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment
and Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable
use, development, management, renewal, and conservation of the country's forest, mineral, land, off-
shore areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply a true value system including
social and environmental cost implications relative to their utilization, development and conservation of
our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible to the different segments of
the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the
agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of
the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of
the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano,
21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection
in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what
the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The
law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation
or determination by the executive or legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no
longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second paragraph of
section 1, Article VIII of the Constitution states that:
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.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country
and to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in policy and the demands of
public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director
of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further
that a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler

Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to regulate
it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of
the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

 
11. G.R. Nos. 171947-48 December 18, 2008

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH,
DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,

vs.

CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO
ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, respondents.

DECISION

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of late gained the
attention of the international community. Media have finally trained their sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper
disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by itself.2 But amidst hard evidence and clear
signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can
still be heard.

This case turns on government agencies and their officers who, by the nature of their respective offices
or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal
waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official
complement, the pollution menace does not seem to carry the high national priority it deserves, if their
track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the
environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine
life and, for so many decades in the past, a spot for different contact recreation activities, but now a
dirty and slowly dying expanse mainly because of the abject official indifference of people and
institutions that could have otherwise made a difference.

This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to
Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water
quality of the Manila Bay had fallen way below the allowable standards set by law, specifically
Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration,
the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.3

In their individual causes of action, respondents alleged that the continued neglect of petitioners in
abating the pollution of the Manila Bay constitutes a violation of, among others:

(1) Respondents’ constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);

(3) The Pollution Control Law (PD 984);

(4) The Water Code (PD 1067);

(5) The Sanitation Code (PD 856);

(6) The Illegal Disposal of Wastes Decree (PD 825);

(7) The Marine Pollution Law (PD 979);

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

(10) Civil Code provisions on nuisance and human relations;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay
and submit to the RTC a concerted concrete plan of action for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection
of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental
Management Bureau, Department of Environment and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from different beaches around the Manila Bay showed
that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number
(MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and
other forms of contact recreational activities, or the "SB" level, is one not exceeding 200 MPN/100 ml.4

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS’ efforts to reduce pollution along the Manila Bay through the
Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of
its evidence, its memorandum circulars on the study being conducted on ship-generated waste
treatment and disposal, and its Linis Dagat (Clean the Ocean) project for the cleaning of wastes
accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The dispositive portion
reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact
recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed,
within six (6) months from receipt hereof, to act and perform their respective duties by devising a
consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the
bay.

In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in
strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain
waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of
other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system
such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in
Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of
waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila
Bay. As the construction and engineering arm of the government, DPWH is ordered to actively
participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage
in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and
require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming
from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the importance
of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay
from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP)
Maritime Group, and five other executive departments and agencies filed directly with this Court a
petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition
to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-
G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the
Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover
cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning
purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can
be compelled by mandamus.

The CA Sustained the RTC

By a Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed the Decision of
the RTC in toto, stressing that the trial court’s decision did not require petitioners to do tasks outside of
their usual basic functions under existing laws.7

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following
ground and supporting arguments:

THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT SECTION 20 OF [PD] 1152
REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND
DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.

ARGUMENTS
I

[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION
INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II

THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS
THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings,
Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited
only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by
mandamus to clean up and rehabilitate the Manila Bay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.

Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay

Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A ministerial duty is
one that "requires neither the exercise of official discretion nor judgment."9 It connotes an act in which
nothing is left to the discretion of the person executing it. It is a "simple, definite duty arising under
conditions admitted or proved to exist and imposed by law."10 Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion
one way or the other.

Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and
liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of
the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by undertaking feasibility studies and cost
estimates, all of which entail the exercise of discretion.

Respondents, on the other hand, counter that the statutory command is clear and that petitioners’ duty
to comply with and act according to the clear mandate of the law does not require the exercise of
discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for
example, to choose which bodies of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether
or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDA’s
ministerial duty to attend to such services.

We agree with respondents.

First off, we wish to state that petitioners’ obligation to perform their duties as defined by law, on one
hand, and how they are to carry out such duties, on the other, are two different concepts. While the
implementation of the MMDA’s mandated tasks may entail a decision-making process, the enforcement
of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society v. Atienza11 in which the Court directed
the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027 directing the three
big local oil players to cease and desist from operating their business in the so-called "Pandacan
Terminals" within six months from the effectivity of the ordinance. But to illustrate with respect to the
instant case, the MMDA’s duty to put up an adequate and appropriate sanitary landfill and solid waste
and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a
statutory imposition. The MMDA’s duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA)
7924 creating the MMDA. This section defines and delineates the scope of the MMDA’s waste disposal
services to include:
Solid waste disposal and management which include formulation and implementation of policies,
standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the
establishment and operation of sanitary land fill and related facilities and the implementation of other
alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42
which provides the minimum operating requirements that each site operator shall maintain in the
operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,12 enjoining the
MMDA and local government units, among others, after the effectivity of the law on February 15, 2001,
from using and operating open dumps for solid waste and disallowing, five years after such effectivity,
the use of controlled dumps.

The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper
waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public functionaries to act officially according to their
judgment or conscience.13 A discretionary duty is one that "allows a person to exercise judgment and
choose to perform or not to perform."14 Any suggestion that the MMDA has the option whether or not
to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.

A perusal of other petitioners’ respective charters or like enabling statutes and pertinent laws would
yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to
perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to perform these duties.
Consider:

(1) The DENR, under Executive Order No. (EO) 192,15 is the primary agency responsible for the
conservation, management, development, and proper use of the country’s environment and natural
resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates
the DENR as the primary government agency responsible for its enforcement and implementation, more
particularly over all aspects of water quality management. On water pollution, the DENR, under the
Act’s Sec. 19(k), exercises jurisdiction "over all aspects of water pollution, determine[s] its location,
magnitude, extent, severity, causes and effects and other pertinent information on pollution, and [takes]
measures, using available methods and technologies, to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an
Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area
Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA
9275 provides:

Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:

a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of
this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the
need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following
the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the
completion of the framework for each designated water management area. Such action plan shall be
reviewed by the water quality management area governing board every five (5) years or as need arises.

The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing
the preparation of the Integrated Water Quality Management Framework.16 Within twelve (12) months
thereafter, it has to submit a final Water Quality Management Area Action Plan.17 Again, like the
MMDA, the DENR should be made to accomplish the tasks assigned to it under RA 9275.

Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the
assistance of and in partnership with various government agencies and non-government organizations,
has completed, as of December 2005, the final draft of a comprehensive action plan with estimated
budget and time frame, denominated as Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its phases should more
than ever prod the concerned agencies to fast track what are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila
and several towns of the provinces of Rizal and Cavite, and charged with the duty:

(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x

(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can
prescribe the minimum standards and regulations for the operations of these districts and shall monitor
and evaluate local water standards. The LWUA can direct these districts to construct, operate, and
furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with
providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection,
treatment, and sewage disposal system in the different parts of the country.19 In relation to the instant
petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the Manila Bay.

(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),20 is
designated as the agency tasked to promulgate and enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under the
Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and
other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to
ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on
a sustainable basis.21 Likewise under RA 9275, the DA is charged with coordinating with the PCG and
DENR for the enforcement of water quality standards in marine waters.22 More specifically, its Bureau
of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for
the prevention and control of water pollution for the development, management, and conservation of
the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO
29223 to provide integrated planning, design, and construction services for, among others, flood control
and water resource development systems in accordance with national development objectives and
approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide
services relating to "flood control and sewerage management which include the formulation and
implementation of policies, standards, programs and projects for an integrated flood control, drainage
and sewerage system."

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA,
whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the
rest of the country, DPWH shall remain as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of
structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in
violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6
of PD 979,24 or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing
laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It
shall promulgate its own rules and regulations in accordance with the national rules and policies set by
the National Pollution Control Commission upon consultation with the latter for the effective
implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating
craft, or other man-made structures at sea, by any method, means or manner, into or upon the
territorial and inland navigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited
either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore,
wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into
tributary of any navigable water from which the same shall float or be washed into such navigable
water; and

c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of
any tributary of any navigable water, where the same shall be liable to be washed into such navigable
water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was
signed into law on December 13, 1990, the PNP Maritime Group was tasked to "perform all police
functions over the Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the police functions
of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the
police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with
regard to the enforcement of laws, rules, and regulations governing marine pollution within the
territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries
Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.25

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate, manage
and operate a rationalized national port system in support of trade and national development."26
Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the ports administered by it
as may be necessary to carry out its powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement
bodies within the area. Such police authority shall include the following:

xxxx

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft.27

Lastly, as a member of the International Marine Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,28 the
Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports and
terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked
to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid
wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators. When the vessels are not docked at ports but within Philippine territorial
waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and
solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the provisions of RA 9003, which
would necessary include its penal provisions, within its area of jurisdiction.29

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are
dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste,
squatting in open dumps and landfills, open dumping, burying of biodegradable or non- biodegradable
materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and
operation of waste management facilities without an environmental compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may
be allowed "when persons or entities occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and
playgrounds." The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures, constructions, and other encroachments built in
breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila.
With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that
discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned
LGUs to implement the demolition and removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH
and concerned agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to
promulgate rules and regulations for the establishment of waste disposal areas that affect the source of
a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and
standards for the collection, treatment, and disposal of sewage and the establishment and operation of
a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a
mix sewerage-septage management system shall be employed.

In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.131 of
Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring
of the proper disposal of wastes by private sludge companies through the strict enforcement of the
requirement to obtain an environmental sanitation clearance of sludge collection treatment and
disposal before these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is
mandated to integrate subjects on environmental education in its school curricula at all levels.32 Under
Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and
Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper use of the environment. Under the Ecological
Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration
of environmental concerns in school curricula at all levels, with an emphasis on waste management
principles.33

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the
Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and
revenues so as to effectively achieve the country’s development objectives.34

One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean Water Act
of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent
with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It
also provides that it is the policy of the government, among others, to streamline processes and
procedures in the prevention, control, and abatement of pollution mechanisms for the protection of
water resources; to promote environmental strategies and use of appropriate economic instruments
and of control mechanisms for the protection of water resources; to formulate a holistic national
program of water quality management that recognizes that issues related to this management cannot
be separated from concerns about water sources and ecological protection, water supply, public health,
and quality of life; and to provide a comprehensive management program for water pollution focusing
on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA
9275 in line with the country’s development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of each agency/petitioner under the law. We need
not belabor the issue that their tasks include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup
of water pollution in general, not just specific pollution incidents?

Secs. 17 and 20 of the Environment Code

Include Cleaning in General

The disputed sections are quoted as follows:

Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree
where its state will adversely affect its best usage, the government agencies concerned shall take such
measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.

Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses
incurred in said operations shall be charged against the persons and/or entities responsible for such
pollution.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the counterpart
provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof, any person
who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards
shall be responsible to contain, remove and clean up any pollution incident at his own expense to the
extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided,
That in the event emergency cleanup operations are necessary and the polluter fails to immediately
undertake the same, the [DENR] in coordination with other government agencies concerned, shall
undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution under proper administrative
determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality
Management Fund or to such other funds where said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since
the amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as
lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves
only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general.
They aver that the twin provisions would have to be read alongside the succeeding Sec. 62(g) and (h),
which defines the terms "cleanup operations" and "accidental spills," as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in
water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from
accidents such as collisions and groundings.

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or
portions of the body of water concerned. They maintain that the application of said Sec. 20 is limited
only to "water pollution incidents," which are situations that presuppose the occurrence of specific,
isolated pollution events requiring the corresponding containment, removal, and cleaning operations.
Pushing the point further, they argue that the aforequoted Sec. 62(g) requires "cleanup operations" to
restore the body of water to pre-spill condition, which means that there must have been a specific
incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in
Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the
application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only.
Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage
of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only
pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other
sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec.
62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by
including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to
Sec. 20 of PD 1152.

To respondents, petitioners’ parochial view on environmental issues, coupled with their narrow reading
of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20
of PD 1152 is constricted by the definition of the phrase "cleanup operations" embodied in Sec. 62(g),
Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases "cleanup operations" and
"accidental spills" do not appear in said Sec. 17, not even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government
agencies concerned ought to confine themselves to the containment, removal, and cleaning operations
when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as water quality "has deteriorated to a degree where its
state will adversely affect its best usage." This section, to stress, commands concerned government
agencies, when appropriate, "to take such measures as may be necessary to meet the prescribed water
quality standards." In fine, the underlying duty to upgrade the quality of water is not conditional on the
occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly
applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup
work for the polluters’ account. Petitioners’ assertion, that they have to perform cleanup operations in
the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake
the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the
complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies
to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot
plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their
cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA
said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The
appellate court wrote: "PD 1152 aims to introduce a comprehensive program of environmental
protection and management. This is better served by making Secs. 17 & 20 of general application rather
than limiting them to specific pollution incidents."35
Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude
and scope that it is well-nigh impossible to draw the line between a specific and a general pollution
incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are.
We note that Sec. 20 of PD 1152 mentions "water pollution incidents" which may be caused by polluters
in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways
that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to "any person who
causes pollution in or pollutes water bodies," which may refer to an individual or an establishment that
pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually
end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless
and faceless polluters that they can validly be categorized as beyond the specific pollution incident level.

Not to be ignored of course is the reality that the government agencies concerned are so undermanned
that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may
perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and
far between. Hence, practically nobody has been required to contain, remove, or clean up a given water
pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup
operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as important
as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland
bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort
would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It
thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and
offices under them on continuing notice about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as "continuing mandamus,"36 the Court may, under
extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not
be set to naught by administrative inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean up the length of the Ganges River from
industrial and municipal pollution.37
The Court can take judicial notice of the presence of shanties and other unauthorized structures which
do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR)
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay,
and other minor rivers and connecting waterways, river banks, and esteros which discharge their
waters, with all the accompanying filth, dirt, and garbage, into the major rivers and eventually the
Manila Bay. If there is one factor responsible for the pollution of the major river systems and the Manila
Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized
structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these
important bodies of water would be for naught. The DENR Secretary said as much.38

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the
Water Code,39 which prohibits the building of structures within a given length along banks of rivers and
other waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and
within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement of public use in the interest of
recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial establishments standing along or
near the banks of the Pasig River, other major rivers, and connecting waterways. But while they may not
be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the
pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the
duty to see to it that non-complying industrial establishments set up, within a reasonable period, the
necessary waste water treatment facilities and infrastructure to prevent their industrial discharge,
including their sewage waters, from flowing into the Pasig River, other major rivers, and connecting
waterways. After such period, non-complying establishments shall be shut down or asked to transfer
their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with
their statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem
in Metro Manila, the results of which are embodied in the The Garbage Book. As there reported, the
garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic
liquids that flow along the surface and seep into the earth and poison the surface and groundwater that
are used for drinking, aquatic life, and the environment.

2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump
sites and surrounding areas, which is presumably generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and
Manila Bay.40

Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of
the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:

Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps shall be
established and operated, nor any practice or disposal of solid waste by any person, including LGUs
which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act:
Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this Act.
(Emphasis added.)

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended
on February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of
waste matters in roads, canals, esteros, and other public places, operation of open dumps, open burning
of solid waste, and the like. Some sludge companies which do not have proper disposal facilities simply
discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater
pollution, disposal of infectious wastes from vessels, and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by
human or machine of substances to the aquatic environment including "dumping/disposal of waste and
other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure."

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them as defined for them by law
and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be
over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and
bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these tasks and take responsibility. This means that the
State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government agencies and instrumentalities
cannot shirk from their mandates; they must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims: (1)
that there ought to be a specific pollution incident before they are required to act; and (2) that the
cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the
State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful
ecology need not even be written in the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.41 Even assuming the absence of a
categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and
women representing them cannot escape their obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of
the trust reposed in them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No.
76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are
AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in the
case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies

to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class
B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the country’s environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible
for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination meetings with concerned
government departments and agencies to ensure the successful implementation of the aforesaid plan of
action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the President’s power of general supervision and
its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways
that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine
whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing
laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require
non-complying establishments and homes to set up said facilities or septic tanks within a reasonable
time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers,
waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other
sanctions.

(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to provide, install, operate, and maintain
the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where
needed at the earliest possible time.

(4) Pursuant to RA 9275,44 the LWUA, through the local water districts and in coordination with the
DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the
efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite,
Bulacan, Pampanga, and Bataan where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is ordered to improve and restore the
marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic
resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec.
124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and
other existing laws and regulations designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters
from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects
and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies,
shall dismantle and remove all structures, constructions, and other encroachments established or built
in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and
projects for flood control services in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by
RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills
and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal
cases against violators of the respective penal provisions of RA 9003,47 Sec. 27 of RA 9275 (the Clean
Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from
finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities
for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give
the companies, if found to be non-complying, a reasonable time within which to set up the necessary
facilities under pain of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 the DepEd shall
integrate lessons on pollution prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through
them, their parents and friends, the importance of their duty toward achieving and maintaining a
balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of
2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation
of the water quality of the Manila Bay, in line with the country’s development objective to attain
economic growth in a manner consistent with the protection, preservation, and revival of our marine
waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime
Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing mandamus,"
shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the
activities undertaken in accordance with this Decision.

No costs.

SO ORDERED.

12. G.R. No. 120095 August 5, 1996

JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC., petitioner,

vs.

HON. COURT OF APPEALS, HON. MA. NIEVES CONFESSOR, then Secretary of the Department of Labor
and Employment, HON. JOSE BRILLANTES, in his capacity as acting Secretary of the Department of Labor
and Employment and HON. FELICISIMO JOSON, in his capacity as Administrator of the Philippine
Overseas Employment Administration, respondents.
KAPUNAN, J.:p

The limits of government regulation under the State's police power are once again at the vortex of the
instant controversy. Assailed is the government's power to control deployment of female entertainers to
Japan by requiring an Artist Record Book (ARB) as a precondition to the processing by the POEA of any
contract for overseas employment. By contending that the right to overseas employment is a property
right within the meaning of the Constitution, petitioners vigorously aver that deprivation thereof
allegedly through the onerous requirement of an ARB violates the due process clause and constitutes an
invalid exercise of the police power.

The factual antecedents are undisputed.

Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino
ordered a total ban against the deployment of performing artists to Japan and other foreign
destinations. The ban was, however, rescinded after leaders of the overseas employment industry
promised to extend full support for a program aimed at removing kinks in the system of deployment. In
its place, the government, through the Secretary of Labor and Employment, subsequently issued
Department Order No. 28, creating the Entertainment Industry Advisory Council (EIAC), which was
tasked with issuing guidelines on the training, testing certification and deployment of performing artists
abroad.

Pursuant to the EIAC's recommendations,1 the Secretary of Labor, on January 6, 1994, issued
Department Order No. 3 establishing various procedures and requirements for screening performing
artists under a new system of training, testing, certification and deployment of the former. Performing
artists successfully hurdling the test, training and certification requirement were to be issued an Artist's
Record Book (ARB), a necessary prerequisite to processing of any contract of employment by the POEA.
Upon request of the industry, implementation of the process, originally scheduled for April 1, 1994, was
moved to October 1, 1994.

Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of orders
fine-tuning and implementing the new system. Prominent among these orders were the following
issuances:
1. Department Order No. 3-A, providing for additional guidelines on the training, testing, certification
and deployment of performing artists.

2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB) requirement, which could be
processed only after the artist could show proof of academic and skills training and has passed the
required tests.

3. Department Order No. 3-E, providing the minimum salary a performing artist ought to received (not
less than US$600.00 for those bound for Japan) and the authorized deductions therefrom.

4. Department Order No. 3-F, providing for the guidelines on the issuance and use of the ARB by
returning performing artists who, unlike new artists, shall only undergo a Special Orientation Program
(shorter than the basic program) although they must pass the academic test.

In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines
(FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally
contending that said orders 1) violated the constitutional right to travel; 2) abridged existing contracts
for employment; and 3) deprived individual artists of their licenses without due process of law. FETMOP,
likewise, averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and "in
gross violation of the constitutional right... to life liberty and property." Said Federation consequently
prayed for the issuance of a writ of preliminary injunction against the aforestated orders.

On February 2, 1992, JMM Promotion and Management, Inc. Kary International, Inc., herein petitioners,
filed a Motion for Intervention in said civil case, which was granted by the trial court in an Order dated
15 February, 1995.

However, on February 21, 1995, the trial court issued an Order denying petitioners' prayed for a writ of
preliminary injunction and dismissed the complaint.

On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the same.
Tracing the circumstances which led to the issuance of the ARB requirement and the assailed
Department Order, respondent court concluded that the issuance constituted a valid exercise by the
state of the police power.
We agree.

The latin maxim salus populi est surprema lex embodies the character of the entire spectrum of public
laws aimed at promoting the general welfare of the people under the State's police power. As an
inherent attribute of sovereignty which virtually "extends to all public needs,"2 this "least limitable"3 of
governmental powers grants a wide panoply of instruments through which the state, as parens patriae
gives effect to a host of its regulatory powers.

Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v.
Provincial Board of Mindoro4 wrote:

"The police power of the State," one court has said... is a power coextensive with self-protection, and is
not inaptly termed "the law of overruling necessity." It may be said to be that inherent and plenary
power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society." Carried onward by the current of legislature, the judiciary rarely attempts to dam the
onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great
principles that mean security for the public welfare or do not arbitrarily interfere with the right of the
individual.5

Thus, police power concerns government enactments which precisely interfere with personal liberty or
property in order to promote the general welfare or the common good. As the assailed Department
Order enjoys a presumed validity, it follows that the burden rests upon petitioners to demonstrate that
the said order, particularly, its ARB requirement, does not enhance the public welfare or was exercised
arbitrarily or unreasonably.

A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels
us to rule that the Artist Record Book requirement and the questioned Department Order related to its
issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power.

In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export
of countries with mammoth populations such as India and China. According to the National Statistics
Office, this diaspora was augmented annually by over 450,000 documented and clandestine or illegal
(undocumented) workers who left the country for various destinations abroad, lured by higher salaries,
better work opportunities and sometimes better living conditions.

Of the hundreds of thousands of workers who left the country for greener pastures in the last few years,
women composed slightly close to half of those deployed, constituting 47% between 1987-1991,
exceeding this proportion (58%) by the end of 1991,6 the year former President Aquino instituted the
ban on deployment of performing artists to Japan and other countries as a result of the gruesome death
of Filipino entertainer Maricris Sioson.

It was during the same period that this Court took judicial notice not only of the trend, but also of the
fact that most of our women, a large number employed as domestic helpers and entertainers, worked
under exploitative conditions "marked by physical and personal abuse."7 Even then, we noted that
"[t]he sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of
torture, confirmed by testimonies of returning workers" compelled "urgent government action."8

Pursuant to the alarming number of reports that a significant number of Filipina performing artists
ended up as prostitutes abroad (many of whom were beaten, drugged and forced into prostitution), and
following the deaths of number of these women, the government began instituting measures aimed at
deploying only those individuals who met set standards which would qualify them as legitimate
performing artists. In spite of these measures, however, a number of our countrymen have nonetheless
fallen victim to unscrupulous recruiters, ending up as virtual slaves controlled by foreign crime
syndicates and forced into jobs other than those indicated in their employment contracts. Worse, some
of our women have been forced into prostitution.

Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor issued on
August 16, 1993, D.O. No. 28, establishing the Entertainment Industry Advisory Council (EIAC), the policy
advisory body of DOLE on entertainment industry matters.9 Acting on the recommendations of the said
body, the Secretary of Labor, on January 6, 1994, issued the assailed orders. These orders embodied
EIAC's Resolution No. 1, which called for guidelines on screening, testing and accrediting performing
overseas Filipino artists. Significantly, as the respondent court noted, petitioners were duly represented
in the EIAC,10 which gave the recommendations on which the ARB and other requirements were based.

Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the issuance
of Department Order No. 3. Short of a total and absolute ban against the deployment of performing
artists to "high risk" destinations, a measure which would only drive recruitment further underground,
the new scheme at the very least rationalizes the method of screening performing artists by requiring
reasonable educational and artistic skills from them and limits deployment to only those individuals
adequately prepared for the unpredictable demands of employment as artists abroad. It cannot be
gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and
agencies.

Moreover, here or abroad, selection of performing artists is usually accomplished by auditions, where
those deemed unfit are usually weeded out through a process which is inherently subjective and
vulnerable to bias and differences in taste. The ARB requirement goes one step further, however,
attempting to minimize the subjectivity of the process by defining the minimum skills required from
entertainers and performing artists. As the Solicitor General observed, this should be easily met by
experienced artists possessing merely basic skills. The test are aimed at segregating real artists or
performers from those passing themselves off as such, eager to accept any available job and therefore
exposing themselves to possible exploitation.

As to the other provisions of Department Order No. 3 questioned by petitioners, we see nothing wrong
with the requirements for document and booking confirmation (D.O. 3-C), a minimum salary scale (D.O.
3-E), or the requirement for registration of returning performers. The requirement for a venue
certificate or other documents evidencing the place and nature or work allows the government closer
monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and
other worksites associated with unsavory, immoral, illegal or exploitative practices. Parenthetically,
none of these issuances appear to us, by any stretch of the imagination, even remotely unreasonable or
arbitrary. They address a felt need of according greater protection for an oft-exploited segment of our
OCW's. They respond to the industry's demand for clearer and more practicable rules and guidelines.
Many of these provisions were fleshed out following recommendations by, and after consultations with,
the affected sectors and non-government organizations. On the whole, they are aimed at enhancing the
safety and security of entertainers and artists bound for Japan and other destinations, without stifling
the industry's concerns for expansion and growth.

In any event, apart from the State's police power, the Constitution itself mandates government to
extend the fullest protection to our overseas workers. The basic constitutional statement on labor,
embodied in Section 18 of Article II of the Constitution provides:

Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers
and promote their welfare.
More emphatically, the social justice provisions on labor of the 1987 Constitution in its first paragraph
states:

The State shall afford full protection to labor, local and overseas, organized and unorganized and
promote full employment and equality of employment opportunities for all.

Obviously, protection to labor does not indicate promotion of employment alone. Under the welfare
and social justice provisions of the Constitution, the promotion of full employment, while desirable,
cannot take a backseat to the government's constitutional duty to provide mechanisms for the
protection of our workforce, local or overseas. As this Court explained in Philippine Association of
Service Exporters (PASEI) v. Drilon,11 in reference to the recurring problems faced by our overseas
workers:

What concerns the Constitution more paramountly is that such an employment be above all, decent,
just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands
because it cannot satisfy their employment needs at home. Under these circumstances, the Government
is duty-adequate protection, personally and economically, while away from home.

We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the right of our
performing workers to return to work abroad after having earlier qualified under the old process,
because, having previously been accredited, their accreditation became a "property right," protected by
the due process clause. We find this contention untenable.

A profession, trade of calling is a property right within the meaning of our constitutional guarantees.
One cannot be deprived of the right to work and right to make a living because these rights are property
rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.12

Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade
has always been upheld as a legitimate subject of a valid exercise of the police power by the state
particularly when their conduct affects either the execution of legitimate governmental functions, the
preservation of the State, the public health and welfare and public morals. According to the maxim, sic
utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to
define the mode and manner in which every one may so use of his own property so as not to pose injury
to himself or others.13
In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of
regulatory measures is certainly much

wider.14 To pretend that licensing or accreditation requirements violates the due process clause is to
ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of
various trades or professions. Professionals leaving for abroad are required to pass rigid written and
practical exams before they are deemed fit to practice their trade. Seamen are required to take tests
determining their seamanship. Locally, the Professional Regulation Commission has began to require
previously licensed doctors and other professionals to furnish documentary proof that they has either
re-trained or had undertaken continuing education courses as a requirement for renewal of their
licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right
under the due process clause. So long as professionals and other workers meet reasonable regulatory
standards no such deprivation exists.

Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the
Constitution to support their argument that the government cannot enact the assailed regulatory
measures because they abridge the freedom to contract. In Philippine Association of Service Exporters,
Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution... must yield to the loftier
purposes targeted by the government."15 Equally important, into every contract is read provisions of
existing law, and always, a reservation of the police power for so long as the agreement deals with a
subject impressed with the public welfare.

A last point. Petitioners suggest that the singling out of entertainers and performing artists under the
assailed department orders constitutes class legislation which violates the equal protection clause of the
Constitution. We do not agree.

The equal protection clause is directed principally against undue favor and individual or class privilege. It
is not intended to prohibit legislation which is limited to the object to which it is directed or by the
territory in which it is to operate. It does not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges conferred and liabilities imposed.16 We have
held, time and again, that the equal protection clause of the Constitution does not forbid classification
for so long as such classification is based on real and substantial differences having a reasonable relation
to the subject of the particular legislation.17 If classification is germane to the purpose of the law,
concerns all members of the class, and applies equally to present and future conditions, the
classification does not violate the equal protection guarantee.
In the case at bar, the challenged Department Order clearly applies to all performing artists and
entertainers destined for jobs abroad. These orders, we stressed hereinfore, further the Constitutional
mandate requiring government to protect our workforce, particularly those who may be prone to abuse
and exploitation as they are beyond the physical reach of government regulatory agencies. The tragic
incidents must somehow stop, but short of absolutely curtailing the right of these performers and
entertainers to work abroad, the assailed measures enable our government to assume a measure of
control.

WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is hereby
DENIED.

SO ORDERED.

13. G.R. No. 118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as
taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and
as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE
PEASANT INSTITUTE, in representation of various taxpayers and as non-governmental organizations,
petitioners,

vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO
AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA. MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL
ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in
his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary, respondents.

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership
thereto of the vast majority of countries has revolutionized international business and economic
relations amongst states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by sweeping away as mere
historical relics the heretofore traditional modes of promoting and protecting national economies like
tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls.
Finding market niches and becoming the best in specific industries in a market-driven and export-
oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect
weak and inefficient domestic producers of goods and services. In the words of Peter Drucker, the well-
known management guru, "Increased participation in the world economy has become the key to
domestic economic growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB)
which was to address the rehabilitation and reconstruction of war-ravaged and later developing
countries; the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of reasons, including its non-ratification by the
United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT — the
General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the
economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.1

Like many other developing countries, the Philippines joined WTO as a founding member with the goal,
as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine
access to foreign markets, especially its major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products." The President also saw in the WTO the
opening of "new opportunities for the services sector . . . , (the reduction of) costs and uncertainty
associated with exporting . . . , and (the attraction of) more investments into the country." Although the
Chief Executive did not expressly mention it in his letter, the Philippines — and this is of special interest
to the legal profession — will benefit from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and
(2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where
solutions were arrived at frequently on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-
countries on the same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits
and/or impairs" the constitutional powers of both Congress and the Supreme Court, the instant petition
before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to
"develop a self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions raised in this petition for
certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public officials and employees, as well as the
use of government properties and resources by respondent-heads of various executive offices
concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14,
1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and
Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of
Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from
the President of the Philippines,3 stating among others that "the Uruguay Round Final Act is hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of
the Philippines4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round
Final Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption
of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the
World Trade Organization."5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization."6 The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal instruments (identified in the
said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures
Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of he

General Agreement on Tariffs and Trade

1994

Agreement on Implementation of Article VII of the

General on Tariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating

Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification,
declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after
having seen and considered the aforementioned Agreement Establishing the World Trade Organization
and the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3)
of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and three
(3) of that Agreement which are integral parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement
(and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2)
the Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,8
the Solicitor General describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of
WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence
and new financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents'
comment and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course
to the petition, and the parties thereafter filed their respective memoranda. The court also requested
the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as "Bautista Paper,"9 for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to
the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various "bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty." Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the
World Trade Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict
and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is "vested in the Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack
or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm
Agreement Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack
or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the
World Trade Organization, and not with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues
raised by petitioners into the following": 10

1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of Section
19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines
of the Agreement establishing the World Trade Organization" implied rejection of the treaty embodied
in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General
has effectively ignored three, namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of
the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the
WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues
thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes
into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the Court
and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents
have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if
ruled in respondents' favor, will not cause the petition's dismissal as there are petitioners other than the
two senators, who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up
as an integral part of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC. 19,
ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR THE
EXERCISE OF LEGISLATIVE POWER BY CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER BY
THIS COURT IN PROMULGATING RULES ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFICIENT
AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS
AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld." 12 Once a "controversy
as to the application or interpretation of a constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide." 13

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the
1987 Constitution, 15 as follows:

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.
The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law. 16 As explained by former Chief Justice Roberto Concepcion, 17 "the
judiciary is the final arbiter on the question of 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. This is not only a judicial power but a duty to
pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be
given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court.
Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we
have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the
wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy espoused by said international body. Neither will it
rule on the propriety of the government's economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional
duty "to determine whether or not there had been a grave abuse of discretion amounting to lack or
excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic
nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered
in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES

AND STATE POLICIES

xxx xxx xxx

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos.

xxx xxx xxx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xxx xxx xxx

Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

xxx xxx xxx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum: 19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM
that is inconsistent with the provisions of Article II or Article XI of GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex
to this Agreement." (Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal
Instruments, p. 22121, emphasis supplied).
The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source,
whether specified in terms of particular products, in terms of volume or value of products, or in terms of
proportion of volume or value of its local production; or

(b) that an enterprise's purchases or use of imported products be limited to an amount related to the
volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local production that it
exports;

(b) the importation by an enterprise of products used in or related to its local production by restricting
its access to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms of volume or
value of products, or in terms of a preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125,
emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any other
contracting party shall be accorded treatment no less favorable than that accorded to like products of
national origin in respect of laws, regulations and requirements affecting their internal sale, offering for
sale, purchase, transportation, distribution or use, the provisions of this paragraph shall not prevent the
application of differential internal transportation charges which are based exclusively on the economic
operation of the means of transport and not on the nationality of the product." (Article III, GATT 1947,
as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS
82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):

Each Member shall accord to the nationals of other Members treatment no less favourable than that it
accords to its own nationals with regard to the protection of intellectual property. . . (par. 1 Article 3,
Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p. 25432 (emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out
therein, each Member shall accord to services and service suppliers of any other Member, in respect of
all measures affecting the supply of services, treatment no less favourable than it accords to its own like
services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service suppliers of
any other Member, either formally suppliers of any other Member, either formally identical treatment
or formally different treatment to that it accords to its own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less favourable if it

modifies the conditions of completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member. (Article XVII, General Agreement on
Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the Constitution. They allegedly render
meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to
ensure the conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions
are not self-executing and merely set out general policies; (2) that these nationalistic portions of the
Constitution invoked by petitioners should not be read in isolation but should be related to other
relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO
clauses do not conflict with Constitution; and (4) that the WTO Agreement contains sufficient provisions
to protect developing countries like the Philippines from the harshness of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles

Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution 21 is called the "basic political creed of the nation" by
Dean Vicente Sinco. 22 These principles in Article II are not intended to be self-executing principles
ready for enforcement through the courts. 23 They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the
leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies enumerated in
Article II and some sections of Article XII are not "self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional
rights but guidelines for legislation."

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative
enactments to implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available
remedy was not judicial but political. The electorate could express their displeasure with the failure of
the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of board constitutional principles
are sourced from basic considerations of due process and the lack of judicial authority to wade "into the
uncharted ocean of social and economic policy making." Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment grating all or part of the relief prayed for.
To my mind, the court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Sec. 1. . . .

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)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the right
to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion
amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel
courts into the uncharted ocean of social and economic policy making. At least in respect of the vast
area of environmental protection and management, our courts have no claim to special technical
competence and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments — the legislative and executive
departments — must be given a real and effective opportunity to fashion and promulgate those norms
and standards, and to implement them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain

Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:

Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to raising the quality of life for all
especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets. However, the State shall protect
Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. . . .

xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:
1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the
people; and

3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions
covering the national economy and patrimony" 27 and in the use of "Filipino labor, domestic materials
and locally-produced goods"; (2) by mandating the State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to "develop a self-reliant and independent national
economy effectively controlled by Filipinos." 29 In similar language, the Constitution takes into account
the realities of the outside world as it requires the pursuit of "a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality ad reciprocity"; 30
and speaks of industries "which are competitive in both domestic and foreign markets" as well as of the
protection of "Filipino enterprises against unfair foreign competition and trade practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al.,
31 this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or
rule for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the constitutional provision itself states, it is
enforceable only in regard to "the grants of rights, privileges and concessions covering national economy
and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather,
the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the
Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. 32 In other words, the Constitution did not intend to
pursue an isolationist policy. It did not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is
unfair.

WTO Recognizes Need to

Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect
weak and developing economies, which comprise the vast majority of its members. Unlike in the UN
where major states have permanent seats and veto powers in the Security Council, in the WTO,
decisions are made on the basis of sovereign equality, with each member's vote equal in weight to that
of any other. There is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which would require three fourths vote.
Amendments would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. 33

Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries can
form powerful blocs to push their economic agenda more decisively than outside the Organization. This
is not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need of developing countries like the
Philippines to "share in the growth in international trade commensurate with the needs of their
economic development." These basic principles are found in the preamble 34 of the WTO Agreement as
follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with
a view to raising standards of living, ensuring full employment and a large and steadily growing volume
of real income and effective demand, and expanding the production of and trade in goods and services,
while allowing for the optimal use of the world's resources in accordance with the objective of
sustainable development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at different levels of
economic development,

Recognizing further that there is need for positive efforts designed to ensure that developing countries,
and especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the
elimination of discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization
efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral
trading system, . . . (emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within a period of six (6)
years while developing countries — including the Philippines — are required to effect an average tariff
reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within
a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail
of these measures. There is hardly therefore any basis for the statement that under the WTO, local
industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the
economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been
taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have
gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the
yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of
grave abuse of discretion, simply because we disagree with it or simply because we believe only in other
economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly aware of

overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public utilities. 36

The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination"
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply
to all WTO members. Aside from envisioning a trade policy based on "equality and reciprocity," 37 the
fundamental law encourages industries that are "competitive in both domestic and foreign markets,"
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor
of the gradual development of robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy
of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor
does it contain any specific pronouncement that Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to
make available to the Filipino consumer the best goods and services obtainable anywhere in the world
at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor
the general welfare of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its
promoters — expand the country's exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality products at the most
reasonable rates to the Filipino public?

The responses to these questions involve "judgment calls" by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet

Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified
in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers
might not have anticipated the advent of a borderless world of business. By the same token, the United
Nations was not yet in existence when the 1935 Constitution became effective. Did that necessarily
mean that the then Constitution might not have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering part of its
control over its foreign relations to the decisions of various UN organs like the Security Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is
to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist 38 explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base
and frame-work only of the edifice that is yet to rise. It is but the core of the dream that must take
shape, not in a twinkling by mandate of our delegates, but slowly "in the crucible of Filipino minds and
hearts," where it will in time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of
the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the
society it seeks to re-structure and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a
pulsing, living law attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed Agreements." 39
Petitioners maintain that this undertaking "unduly limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is
vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines
because this means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which not only relates
to the trade in goods . . . but also to the flow of investments and money . . . as well as to a whole slew of
agreements on socio-cultural matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress. 41 And while the Constitution allows Congress to authorize the President to fix
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such
authority is subject to "specified limits and . . . such limitations and restrictions" as Congress may
provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by

International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments
on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations." 43 By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be automatically
part of our own laws. 44 One of the oldest and most fundamental rules in international law is pacta sunt
servanda — international agreements must be performed in good faith. "A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties . . . A state which has
contracted valid international obligations is bound to make in its legislations such modifications as may
be necessary to ensure the fulfillment of the obligations undertaken." 45

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the
exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for example, the lease of naval bases, the
sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation
of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules
governing conduct in peace and the establishment of international organizations. 46 The sovereignty of
a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the
picture: (1) limitations imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build
its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here." 47

UN Charter and Other Treaties

Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article 2 of
the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against which
the United Nations is taking preventive or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for the peace-
keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court
of Justice held that money used by the United Nations Emergency Force in the Middle East and in the
Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence,
all its members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees
with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although "sovereign equality" and
"domestic jurisdiction" of all members are set forth as underlying principles in the UN Charter, such
provisos are however subject to enforcement measures decided by the Security Council for the
maintenance of international peace and security under Chapter VII of the Charter. A final example:
under Article 103, "(i)n the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international agreement, their
obligation under the present charter shall prevail," thus unquestionably denying the Philippines — as a
member — the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both
bilateral and multilateral — that involve limitations on Philippine sovereignty. These are enumerated by
the Solicitor General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed,
among others, to exempt from tax, income received in the Philippines by, among others, the Federal
Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and personal services performed by
them as employees or officials of the United States are exempt from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation
with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.

(d) Bilateral convention with the French Republic for the avoidance of double taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare
parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the
same privileges as those granted to Japanese and Korean air carriers under separate air service
agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted
Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines
not exceeding 59 days.

(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special
Missions in the Philippines are inviolable and its agents can not enter said premises without consent of
the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and
related charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach "of international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the
same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the environment, the law
of the sea, or trade, constrain domestic political sovereignty through the assumption of external
obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we
accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any
loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-
defined substantive norms and objective dispute resolution procedures reduce the risks of larger
countries exploiting raw economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately
from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger
set of potential new trading relationship than in case of the larger country gaining enhanced success to
the smaller country's market. 48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . . cooperation
and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of
the Supreme Court to promulgate rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as
follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred
to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product,
the judicial authorities shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process. Therefore, Members shall provide, in
at least one of the following circumstances, that any identical product when produced without the
consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been
obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner
of the patent has been unable through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the
alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (not the words "in the
absence of proof to the contrary") presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is new, or (2) where there
is "substantial likelihood" that the identical product was made with the use of the said patented process
but the owner of the patent could not determine the exact process used in obtaining such identical
product. Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the
duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood,
actually refers to the "burden of evidence" (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the use of the patented
process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is "identical" to the genuine one produced by
the patented process and the fact of "newness" of the genuine product or the fact of "substantial
likelihood" that the identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law on
the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented
design or utility model. Identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been able
through reasonable effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue — derogation
of legislative power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause
more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of adversarial dispute
settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the
other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services — is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because
it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of
the President to the Senate 53 which enumerated what constitutes the Final Act should have been the
subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries
attending the conference." 54 It is not the treaty itself. It is rather a summary of the proceedings of a
protracted conference which may have taken place over several years. The text of the "Final Act
Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one
page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said
Final Act, Secretary Navarro as representative of the Republic of the Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required
from its signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives
of the members can meet "to give effect to those provisions of this Agreement which invoke joint
action, and generally with a view to facilitating the operation and furthering the objectives of this
Agreement." 56

The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to
the Philippines. It applies only to those 27 Members which "have indicated in their respective schedules
of commitments on standstill, elimination of monopoly, expansion of operation of existing financial
service suppliers, temporary entry of personnel, free transfer and processing of information, and
national treatment with respect to access to payment, clearing systems and refinancing available in the
normal course of business."57

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts, 58 as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional frame-work for the conduct of trade relations among
its Members in matters to the agreements and associated legal instruments included in the Annexes to
this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter
referred to as "Multilateral Agreements") are integral parts of this Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
"Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as
"GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the
members' deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11,
1994, 59 the senators

of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Tañada that what was
submitted to the Senate was not the agreement on establishing the World Trade Organization by the
final act of the Uruguay Round which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to
withdraw upon understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission
which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding,
it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones
that raised this question yesterday?

Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to
the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw
the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the
Final Act itself . The Constitution does not require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted to
with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO
Agreement for the consideration of the respective competent authorities with a view to seeking
approval of the Agreement in accordance with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification
or acceptance as whatever their constitutional procedures may provide but it is the World Trade
Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself .
Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterday's session and I don't see any need for repeating
the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have
no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Court's constitutionally imposed duty "to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate remedy in the ordinary course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 62 Failure on the
part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. 63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of
two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate, and thus its actions are presumed regular and done in
good faith. Unless convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted
definition of grave abuse of discretion and the presumption of regularity in the Senate's processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such principles
— while serving as judicial and legislative guides — are not in themselves sources of causes of action.
Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a "trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity" and the promotion of industries
"which are competitive in both domestic and foreign markets," thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is
balanced by the adoption of the generally accepted principles of international law as part of the law of
the land and the adherence of the Constitution to the policy of cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign
duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or
personal hostility" in such exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to
the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to
whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review.
That is a matter between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a matter that our people
should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance
65 where "the East will become the dominant region of the world economically, politically and culturally
in the next century." He refers to the "free market" espoused by WTO as the "catalyst" in this coming
Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly enriched with original membership, keenly aware of
the advantages and disadvantages of globalization with its on-line experience, and endowed with a
vision of the future, the Philippines now straddles the crossroads of an international strategy for
economic prosperity and stability in the new millennium. Let the people, through their duly authorized
elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

14. G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,
petitioners,

vs.

PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.

H.B. Basco & Associates for petitioners.

Valmonte Law Offices collaborating counsel for petitioners.

Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:

A TV ad proudly announces:

"The new PAGCOR — responding through responsible gaming."

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived
the Manila City government's right to impose taxes and license fees, which is recognized by law;

B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the
local government's right to impose local taxes and license fees. This, in contravention of the
constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR — conducted
gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking
and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony economy,
and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared
national policy of the "new restored democracy" and the people's will as expressed in the 1987
Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11,
12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p.
3, Second Amended Petition; p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.

The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A
dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to
establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of
the Philippines." Its operation was originally conducted in the well known floating casino "Philippine
Tourist." The operation was considered a success for it proved to be a potential source of revenue to
fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for
PAGCOR to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to
regulate and centralize all games of chance authorized by existing franchise or permitted by law, under
the following declared policy —

Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to centralize and
integrate all games of chance not heretofore authorized by existing franchises or permitted by law in
order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of chance into one
corporate entity to be controlled, administered and supervised by the Government.

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming
pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including
games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and
which will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects,
such as flood control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan
Centers, Nutritional Programs, Population Control and such other essential public services; (2) create
recreation and integrated facilities which will expand and improve the country's existing tourist
attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos without direct
government involvement. (Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent
therewith, are accordingly repealed, amended or modified.

It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's
income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other
socio-cultural and charitable projects on its own or in cooperation with various governmental agencies,
and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989,
PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.

But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward
"crony economy", and is violative of the equal protection clause and local autonomy as well as for
running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12
(Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest
and most delicate function which belongs to the judicial department of the government." (State v.
Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is
clear that the legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute (Lozano v. Martinez, supra).

In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the —

. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of
constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond
a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must
negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or
expediency of a statute and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v.
Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970];
Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220,
241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521, 540)

Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's
duty, under the 1987 Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163
SCRA 371)

With particular regard to the requirement of proper party as applied in the cases before us, We hold
that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if,
strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court
to waive the requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that "the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must
technicalities of procedure." We have since then applied the exception in many other cases. (Association
of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).

Having disposed of the procedural issue, We will now discuss the substantive issues raised.

Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
(Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as
the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978).
The police power of the State is a power co-extensive with self-protection and is most aptly termed the
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most
essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
force that enables the state to meet the agencies of the winds of change.

What was the reason behind the enactment of P.D. 1869?

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations
in one corporate entity — the PAGCOR, was beneficial not just to the Government but to society in
general. It is a reliable source of much needed revenue for the cash strapped Government. It provided
funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and
control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will be
minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes
and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy.
They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise
holder from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies
of whatever nature, whether National or Local."

(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or otherwise as
well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and
collected under this franchise from the Corporation; nor shall any form or tax or charge attach in any
way to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues
or earnings derived by the Corporation from its operations under this franchise. Such tax shall be due
and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or
assessments of any kind, nature or description, levied, established or collected by any municipal,
provincial or national government authority (Section 13 [2]).

Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard
v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of
Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or
the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore
must always yield to a legislative act which is superior having been passed upon by the state itself which
has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).

(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that
"municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18,
1957) which has the power to "create and abolish municipal corporations" due to its "general legislative
powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has
the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if
Congress can grant the City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.

(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as
1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or
permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:

Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other
local governments to issue license, permit or other form of franchise to operate, maintain and establish
horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks,
jai-alai and other forms of gambling shall be issued by the national government upon proper application
and verification of the qualification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits" for the operation
of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.

(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it
also exercises regulatory powers thus:

Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the affiliated entities, and shall
exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliating entities mentioned under the preceding section, including, but not
limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliated entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original
incorporation.

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental,
which places it in the category of an agency or instrumentality of the Government. Being an
instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes.
Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local
government.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control
the operation of constitutional laws enacted by Congress to carry into execution the powers vested in
the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)

This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the
part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States
(Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate
a federal instrumentality in such a way as to prevent it from consummating its federal responsibilities, or
even to seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2,
p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).

The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has
the inherent power to wield it.

(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D.
1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:

Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy
taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide,
consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively
to the local government. (emphasis supplied)

The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or
revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative
but rather is consistent with the principle of local autonomy.

Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization"
(III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of
the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments
sovereign within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs. In a unitary system of government, such as the
government under the Philippine Constitution, local governments can only be an intra sovereign
subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a
system can only mean a measure of decentralization of the function of government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to local government
units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens
Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).

What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant
of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are
void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re
Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p.
548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because
"it legalized PAGCOR — conducted gambling, while most gambling are outlawed together with
prostitution, drug trafficking and other vices" (p. 82, Rollo).

We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-
accepted meaning of the clause "equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not
have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the
Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals
or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does
not require situations which are different in fact or opinion to be treated in law as though they were the
same (Gomez v. Palomar, 25 SCRA 827).

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is
not clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D
449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as
amended by B.P. 42) are legalized under certain conditions, while others are prohibited, does not render
the applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are
other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)

The equal protection clause of the 14th Amendment does not mean that all occupations called by the
same name must be treated the same way; the state may do what it can to prevent which is deemed as
evil and stop short of those cases in which harm to the few concerned is not less than the harm to the
public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v.
Arizona, 249 US 2651).

Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away
from monopolies and crony economy and toward free enterprise and privatization" suffice it to state
that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the
government's policies then it is for the Executive Department to recommend to Congress its repeal or
amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not what the
law should be.1âwphi1 Under our system of government, policy issues are within the domain of the
political branches of government and of the people themselves as the repository of all state power.
(Valmonte v. Belmonte, Jr., 170 SCRA 256).

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and
Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be regulated
or prohibited. Again, this is a matter of policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and the
legislature. If the executive and the legislature failed to heed the directives of the articles the available
remedy was not judicial or political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387;
Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287).
Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of
the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must
be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption.
The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well
as the state principles on social justice, role of youth and educational values" being raised, is up for
Congress to determine.

As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they
claim to have been violated by that statute. This Court, however, is not compelled to speculate and to
imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court
notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and
expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and
which this Court may not constitutionally pass upon. Those issues should be addressed rather to the
political departments of government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control,
physical health, or even their lives does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the
same consequences could have been preceded by an overdose of food, drink, exercise, work, and even
sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

15. G.R. No. 129093 August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON. CALIXTO CATAQUIZ,
petitioners,
vs.

HON. FRANCISCO DIZON PAÑO and TONY CALVENTO, respondents.

QUISUMBING, J.:

For our resolution is a petition for review on certiorari seeking the reversal of the decision 1 dated
February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93, enjoining petitioners
from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang Panlalawigan of
Laguna and its subsequent Order 2 dated April 21, 1997 denying petitioners' motion for reconsideration.

On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine Charity
Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He asked Mayor Calixto
Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open the lotto outlet. This was denied by
Mayor Cataquiz in a letter dated February 19, 1996. The ground for said denial was an ordinance passed
by the Sangguniang Panlalawigan of Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on
September 18, 1995. The ordinance reads:

ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG LOTTO SA
LALAWIGAN NG LAGUNA

SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;

SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa mga kabataan;

KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd. Gat-Ala A. Alatiit,
pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat ng dumalo
sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng sugal dito sa
lalawigan ng Laguna lalo't higit ang Lotto;

IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng Philippine National
Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal
sa buong lalawigan ng Laguna lalo na ang "Jueteng".3

As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory relief with
prayer for preliminary injunction and temporary restraining order. In the said complaint, respondent
Calvento asked the Regional Trial Court of San Pedro Laguna, Branch 93, for the following reliefs: (1) a
preliminary injunction or temporary restraining order, ordering the defendants to refrain from
implementing or enforcing Kapasiyahan Blg. 508, T. 1995; (2) an order requiring Hon. Municipal Mayor
Calixto R Cataquiz to issue a business permit for the operation of a lotto outlet; and (3) an order
annulling or declaring as invalid Kapasiyahan Blg. 508, T. 1995.

On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his decision enjoining
the petitioners from implementing or enforcing resolution or Kapasiyahan Blg. 508, T. 1995. The
dispositive portion of said decision reads:

WHEREFORE, premises considered, defendants, their agents and representatives are hereby enjoined
from implementing or enforcing resolution or kapasiyahan blg. 508, T. 1995 of the Sangguniang
Panlalawigan ng Laguna prohibiting the operation of the lotto in the province of Laguna.

SO ORDERED.4

Petitioners filed a motion for reconsideration which was subsequently denied in an Order dated April 21,
1997, which reads:

Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the Sangguniang
Panlalawigan of Laguna, thru counsel, with the opposition filed by plaintiff's counsel and the comment
thereto filed by counsel for the defendants which were duly noted, the Court hereby denies the motion
for lack of merit.
SO ORDERED.5

On May 23, 1997, petitioners filed this petition alleging that the following errors were committed by the
respondent trial court:

THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING KAPASIYAHAN BLG.
508, T. 1995 OF THE SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE
LOTTO IN THE PROVINCE OF LAGUNA.

II

THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE PETITIONERS THAT BEFORE
ANY GOVERNMENT PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR
OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND
OTHER CONCERNED SECTORS IS REQUIRED.

Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of gambling. It is
likewise a valid exercise of the provincial government's police power under the General Welfare Clause
of Republic Act 7160, otherwise known as the Local Government Code of 1991.6 They also maintain that
respondent's lotto operation is illegal because no prior consultations and approval by the local
government were sought before it was implemented contrary to the express provisions of Sections 2 (c)
and 27 of R.A. 7160.7

For his part, respondent Calvento argues that the questioned resolution is, in effect, a curtailment of the
power of the state since in this case the national legislature itself had already declared lotto as legal and
permitted its operations around the country.8 As for the allegation that no prior consultations and
approval were sought from the sangguniang panlalawigan of Laguna, respondent Calvento contends this
is not mandatory since such a requirement is merely stated as a declaration of policy and not a self-
executing provision of the Local Government Code of 1991.9 He also states that his operation of the
lotto system is legal because of the authority given to him by the PCSO, which in turn had been granted
a franchise to operate the lotto by Congress.10

The Office of the Solicitor General (OSG), for the State, contends that the Provincial Government of
Laguna has no power to prohibit a form of gambling which has been authorized by the national
government.11 He argues that this is based on the principle that ordinances should not contravene
statutes as municipal governments are merely agents of the national government. The local councils
exercise only delegated legislative powers which have been conferred on them by Congress. This being
the case, these councils, as delegates, cannot be superior to the principal or exercise powers higher than
those of the latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress has allowed the
PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative grant of
authority, the province's Sangguniang Panlalawigan cannot nullify the exercise of said authority by
preventing something already allowed by Congress.

The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995 of the
Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based thereon are valid; and (2)
whether prior consultations and approval by the concerned Sanggunian are needed before a lotto
system can be operated in a given local government unit.

The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's permit for the
operation of a lotto outlet in favor of private respondent. According to the mayor, he based his decision
on an existing ordinance prohibiting the operation of lotto in the province of Laguna. The ordinance,
however, merely states the "objection" of the council to the said game. It is but a mere policy statement
on the part of the local council, which is not self-executing. Nor could it serve as a valid ground to
prohibit the operation of the lotto system in the province of Laguna. Even petitioners admit as much
when they stated in their petition that:

5.7. The terms of the Resolution and the validity thereof are express and clear. The Resolution is a policy
declaration of the Provincial Government of Laguna of its vehement opposition and/or objection to the
operation of and/or all forms of gambling including the Lotto operation in the Province of Laguna.12

As a policy statement expressing the local government's objection to the lotto, such resolution is valid.
This is part of the local government's autonomy to air its views which may be contrary to that of the
national government's. However, this freedom to exercise contrary views does not mean that local
governments may actually enact ordinances that go against laws duly enacted by Congress. Given this
premise, the assailed resolution in this case could not and should not be interpreted as a measure or
ordinance prohibiting the operation of lotto.

The game of lotto is a game of chance duly authorized by the national government through an Act of
Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law which grants a franchise
to the PCSO and allows it to operate the lotteries. The pertinent provision reads:

SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity Sweepstakes Office,
hereinafter designated the Office, shall be the principal government agency for raising and providing for
funds for health programs, medical assistance and services and charities of national character, and as
such shall have the general powers conferred in section thirteen of Act Numbered One thousand four
hundred fifty-nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries, and other similar activities, in such
frequency and manner, as shall be determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.

This statute remains valid today. While lotto is clearly a game of chance, the national government deems
it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of Laguna, a local government
unit, cannot issue a resolution or an ordinance that would seek to prohibit permits. Stated otherwise,
what the national legislature expressly allows by law, such as lotto, a provincial board may not disallow
by ordinance or resolution.

In our system of government, the power of local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress. As held in Tatel vs. Virac,13 ordinances
should not contravene an existing statute enacted by Congress. The reasons for this is obvious, as
elucidated in Magtajas v. Pryce Properties Corp.14

Municipal governments are only agents of the national government. Local councils exercise only
delegated legislative powers conferred upon them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of Congress, from which they have
derived their power in the first place, and negate by mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly from the
legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the municipal corporations in the state, and the
corporation could not prevent it. We know of no limitation on the right so far as the corporation
themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature (citing
Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa 455).

Nothing in the present constitutional provision enhancing local autonomy dictates a different
conclusion.

The basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without
meaning to detract from that policy, we here confirm that Congress retains control of the local
government units although in significantly reduced degree now than under our previous Constitutions.
The power to create still includes the power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax (citing Art. X, Sec. 5, Constitution), which
cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it.15

Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted
to local governments will necessarily be limited and confined within the extent allowed by the central
authority. Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization". It does not make local governments sovereign within the state or an "imperium in
imperio".16

To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of
Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to prohibit lotto in
his municipality. For said resolution is nothing but an expression of the local legislative unit concerned.
The Board's enactment, like spring water, could not rise above its source of power, the national
legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27 of Republic
Act 7160, otherwise known as the Local Government Code of 1991, apply mandatorily in the setting up
of lotto outlets around the country. These provisions state:

SECTION 2. Declaration of Policy. — . . .

(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, non-governmental and people's organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions.

SECTION 27. Prior Consultations Required. — No project or program shall be implemented by

government authorities unless the consultations mentioned in Section 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained; Provided, that occupants in areas
where such projects are to be implemented shall not be evicted unless, appropriate relocation sites
have been provided, in accordance with the provisions of the Constitution.

From a careful reading of said provisions, we find that these apply only to national programs and/or
projects which are to be implemented in a particular local community. Lotto is neither a program nor a
project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the
national government, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c)
and 27 of the Local Government Code.

Section 27 of the Code should be read in conjunction with Section 26 thereof.17 Section 26 reads:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall
be the duty of every national agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, range-land, or forest cover,
and extinction of animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable
resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain
animal or plant species from the face of the planet; and (6) other projects or programs that may call for
the eviction of a particular group of people residing in the locality where these will be implemented.
Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna.

Moreover, the argument regarding lack of consultation raised by petitioners is clearly an afterthought
on their part. There is no indication in the letter of Mayor Cataquiz that this was one of the reasons for
his refusal to issue a permit. That refusal was predicated solely but erroneously on the provisions of
Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang Panlalawigan of Laguna.

In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from enforcing or
implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang Panlalawigan of Laguna. That
resolution expresses merely a policy statement of the Laguna provincial board. It possesses no binding
legal force nor requires any act of implementation. It provides no sufficient legal basis for respondent
mayor's refusal to issue the permit sought by private respondent in connection with a legitimate
business activity authorized by a law passed by Congress.

WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court of San Pedro,
Laguna enjoining the petitioners from implementing or enforcing Resolution or Kapasiyahan Blg. 508, T.
1995, of the Provincial Board of Laguna is hereby AFFIRMED. No costs.

SO ORDERED.

 
16. G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.

COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioner’s
Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was
not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include
petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion
for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion
for Reconsideration and on similar motions filed by other aspirants for national elective positions,
denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The
COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported by a registered
political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By
then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section 26,
Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying
him since he is the most qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is capable of waging a national
campaign since he has numerous national organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other countries, and he has a platform of
government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared
by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for
determining the qualifications of candidates since it does not ask for the candidate’s bio-data and his
program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a
privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows
such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain
language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice)
Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the
phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his
proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be
equal access to the opportunity. If you broaden, it would necessarily mean that the government would
be mandated to create as many offices as are possible to accommodate as many people as are also
possible. That is the meaning of broadening opportunities to public service. So, in order that we should
not mandate the State to make the government the number one employer and to limit offices only to
what may be necessary and expedient yet offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide amendment"
indicates the design of the framers to cast the provision as simply enunciatory of a desired policy
objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to their
inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an
operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio
refuse to give due course to or cancel a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access
clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are
meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is
no showing that any person is exempt from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed
validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the
Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates
who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling
interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for logistical confusion, not to mention the
increased allocation of time and resources in preparation for the election. These practical difficulties
should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency,
but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant
modicum of support before printing the name of a political organization and its candidates on the ballot
– the interest, if no other, in avoiding confusion, deception and even frustration of the democratic
[process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558
on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As
observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national
positions because the election process becomes a mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the
government. For the official ballots in automated counting and canvassing of votes, an additional page
would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent
campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even
the receipt of electoral contributions.15 Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling.
The organization of an election with bona fide candidates standing is onerous enough. To add into the
mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair
the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer
wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State
interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover,
the Constitution guarantees that only bona fide candidates for public office shall be free from any form
of harassment and discrimination.18 The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this
instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since
such a review would necessarily take into account the matters which the COMELEC considered in
arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his
credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not
properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of
the factual determination is not before this Court. Thus, the remand of this case for the reception of
further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements of
due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that
the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically
enumerates what a certificate of candidacy should contain, with the required information tending to
show that the candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the
COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly
Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election
Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this
Court with deliberate dispatch.
SO ORDERED.

17. 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.7 Some 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,"44 and 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 Congress61 anent 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
investigation99 covering 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 important119 and, 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,139 applies 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,164 belongs 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.1âwphi1 In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
(Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF
Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to
allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after
the GAA is passed."179 They state that the findings and recommendations in the CoA Report provide
"an illustration of how absolute and definitive the power of legislators wield over project
implementation in complete violation of the constitutional principle of separation of powers."180
Further, they point out that the Court in the Philconsa case only allowed the CDF to exist on the
condition that individual legislators limited their role to recommending projects and not if they actually
dictate their implementation.181
For their part, respondents counter that the separations of powers principle has not been violated since
the President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains
the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa,
"upheld the constitutionality of the power of members of Congress to propose and identify projects so
long as such proposal and identification are recommendatory."183 As such, they claim that "everything
in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel
would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187
– have been consistently accorded 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,197 or 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).199 The 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.

SO ORDERED.