Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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. 10Needless 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.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

EN BANC

G.R. No. 141284               August 15, 2000

INTEGRATED BAR OF THE PHILIPPINES, petitioner, 

vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of President
Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the "Marines")
to join the Philippine National Police (the "PNP") in visibility patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings
and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to
conduct joint visibility patrols for the purpose of crime prevention and suppression. The
Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the
"AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were
tasked to execute and implement the said order. In compliance with the presidential mandate,
the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of
Instruction 02/20001 (the "LOI") which detailed the manner by which the joint visibility patrols,
called Task Force Tulungan, would be conducted.2 Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.

Subsequently, the President confirmed his previous directive on the deployment of the Marines
in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the
PNP Chief.3 In the Memorandum, the President expressed his desire to improve the peace and
order situation in Metro Manila through a more effective crime prevention program including
increased police patrols.4 The President further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-
Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of
Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of
the Marines to assist the PNP in preventing or suppressing criminal or lawless violence. 6 Finally,
the President declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the situation shall
have improved.7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of
crime prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but
also by organized syndicates whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove well-above the present capability
of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in
the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially
those perpetrated by active or former police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to
minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized
crime syndicates whose members include those that are well-trained, disciplined and well-
armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police
Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the
internal security of the state against insurgents and other serious threat to national security,
although the primary responsibility over Internal Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile
crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept
requires the military and police to work cohesively and unify efforts to ensure a focused,
effective and holistic approach in addressing crime prevention. Along this line, the role of the
military and police aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force "TULUNGAN"
shall be organized to provide the mechanism, structure, and procedures for the integrated
planning, coordinating, monitoring and assessing the security situation.

xxx.8

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT
Stations and the NAIA and Domestic Airport.9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY

REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN

FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION
5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS

UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE
UNDER THE CONSTITUTION.10

Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, the IBP questions the validity of the deployment
and utilization of the Marines to assist the PNP in law enforcement.

Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the
Solicitor General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that
the question of deployment of the Marines is not proper for judicial scrutiny since the same
involves a political question; that the organization and conduct of police visibility patrols, which
feature the team-up of one police officer and one Philippine Marine soldier, does not violate
the civilian supremacy clause in the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the President’s factual determination of the necessity of calling the armed
forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to
assist the PNP in joint visibility patrols violates the constitutional provisions on civilian
supremacy over the military and the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to
raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian
supremacy clause of the Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

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

When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case.12

The IBP has not sufficiently complied with the requisites of standing in this case.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged.13 The term "interest" means a material interest, an
interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.14 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."15

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold
the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no
other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific
and substantial interest in the resolution of the case. Its fundamental purpose which, under
Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and
to improve the administration of justice is alien to, and cannot be affected by the deployment
of the Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to file
the present action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the
National President to file the petition, has not shown any specific injury which it has suffered or
may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of the operation of
the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that
their civil liberties have been violated by the deployment of the Marines. What the IBP projects
as injurious is the supposed "militarization" of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than good in the long run. Not
only is the presumed "injury" not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the questioned act, it
does not possess the personality to assail the validity of the deployment of the Marines. This
Court, however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy
this Court that it has sufficient stake to obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.16 In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental
significance to the people.17 Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure.18 In this case, a reading of the
petition shows that the IBP has advanced constitutional issues which deserve the attention of
this Court in view of their seriousness, novelty and weight as precedents. Moreover, because
peace and order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in
the petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather than
later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President
of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility
patrols. In this regard, the IBP admits that the deployment of the military personnel falls under
the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the
Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of
the Marines under the aforestated provision. According to the IBP, no emergency exists that
would justify the need for the calling of the military to assist the police force. It contends that
no lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the
IBP prays that this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question
and the resolution of factual issues which are beyond the review powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential powers and limits,
and the extent of judicial review. But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may warrant a creative approach
that goes beyond the narrow confines of the issues raised. Thus, while the parties are in
agreement that the power exercised by the President is the power to call out the armed forces,
the Court is of the view that the power involved may be no more than the maintenance of
peace and order and promotion of the general welfare.20 For one, the realities on the ground do
not show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the
full brunt of the military is not brought upon the citizenry, a point discussed in the latter part of
this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the President’s powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked with attending to
the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in
times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law,
in fulfilling presidential duties in times of peace is not in any way diminished by the relative
want of an emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to exclude
the President’s exercising as Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.

xxx21

Nonetheless, even if it is conceded that the power involved is the President’s power to call out
the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution
of the controversy will reach a similar result.

We now address the Solicitor General’s argument that the issue involved is not susceptible to
review by the judiciary because it involves a political question, and thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate

for court review.22 It pertains to issues which are inherently susceptible of being decided on
grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction
over actual constitutional cases brought before it even in instances that are ripe for resolution.
One class of cases wherein the Court hesitates to rule on are "political questions." The reason is
that political questions are concerned with issues dependent upon the wisdom, not the legality,
of a particular act or measure being assailed. Moreover, the political question being a function
of the separation of powers, the courts will not normally interfere with the workings of another
co-equal branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.

As Tañada v. Cuenco23 puts it, political questions refer "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 legislative or executive branch of
government." Thus, if an issue is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the people themselves then it is
held to be a political question. In the classic formulation of Justice Brennan in Baker v.
Carr,24 "[p]rominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or 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
nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question."

The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government."25 Under this definition, the Court
cannot agree with the Solicitor General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject
to limitations, the issue of whether the prescribed qualifications or conditions have been met or
the limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given to this
Court.27 When political questions are involved, the Constitution limits the determination as to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that
is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion or hostility. 29 Under this definition, a
court is without power to directly decide matters over which full discretionary authority has
been delegated. But while this Court has no power to substitute its judgment for that of
Congress or of the President, it may look into the question of whether such exercise has been
made in grave abuse of discretion.30A showing that plenary power is granted either department
of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy. 31

When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there exist
no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Court’s duty of "purposeful hesitation" 32 before declaring an act of another
branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President’s judgment. To doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the
exercise of such power. Section 18, Article VII of the Constitution, which embodies the powers
of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof under martial law.

xxx
The full discretionary power of the President to determine the factual basis for the exercise of
the calling out power is also implied and further reinforced in the rest of Section 18, Article VII
which reads, thus:

xxx

Within forty-eight hours from the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President’s action to call out
the armed forces. The distinction places the calling out power in a different category from the
power to declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped together the
three powers and provided for their revocation and review without any qualification. Expressio
unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not,
by interpretation or construction, be extended to other matters.33 That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary
to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus,
then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ
of habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises
this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be
handled by the first sentence: "The President may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter
can be handled by the First Sentence: "The President....may call out such Armed Forces to
prevent or suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for
handling imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.34

The reason for the difference in the treatment of the aforementioned powers highlights the
intent to grant the President the widest leeway and broadest discretion in using the power to
call out because it is considered as the lesser and more benign power compared to the power
to suspend the privilege of the writ of habeas corpus and the power to impose martial law,
both of which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions
must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must
require it. These conditions are not required in the case of the power to call out the armed
forces. The only criterion is that "whenever it becomes necessary," the President may call the
armed forces "to prevent or suppress lawless violence, invasion or rebellion." The implication is
that the President is given full discretion and wide latitude in the exercise of the power to call
as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information necessary
to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the courts. In many instances,
the evidence upon which the President might decide that there is a need to call out the armed
forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a
scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial scrutiny could be a
veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction
or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-
in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.
Unless the petitioner can show that the exercise of such discretion was gravely abused, the
President’s exercise of judgment deserves to be accorded respect from this Court.

The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila..." 35 We do
not doubt the veracity of the President’s assessment of the situation, especially in the light of
present developments. The Court takes judicial notice of the recent bombings perpetrated by
lawless elements in the shopping malls, public utilities, and other public places. These are
among the areas of deployment described in the LOI 2000. Considering all these facts, we hold
that the President has sufficient factual basis to call for military aid in law enforcement and in
the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law
enforcement is "militarized" in violation of Section 3, Article II 36 of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of joint
visibility patrols is appropriately circumscribed. The limited participation of the Marines is
evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of
the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the
visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.37 Under
the LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures.38 It is their responsibility to direct and manage the deployment of the Marines. 39 It
is, likewise, their duty to provide the necessary equipment to the Marines and render logistical
support to these soldiers.40 In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist
the PNP does not unmake the civilian character of the police force. Neither does it amount to
an "insidious incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.41

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post
in derogation of the aforecited provision. The real authority in these operations, as stated in the
LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such
being the case, it does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the same. Since none
of the Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint
visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no "insidious incursion" of the military
in civilian affairs nor can there be a violation of the civilian supremacy clause in the
Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally "civil"
functions. As correctly pointed out by the Solicitor General, some of the multifarious activities
wherein military aid has been rendered, exemplifying the activities that bring both the civilian
and the military together in a relationship of cooperation, are:

1. Elections;42

2. Administration of the Philippine National Red Cross;43

3. Relief and rescue operations during calamities and disasters; 44

4. Amateur sports promotion and development;45

5. Development of the culture and the arts;46

6. Conservation of natural resources;47

7. Implementation of the agrarian reform program; 48

8. Enforcement of customs laws;49

9. Composite civilian-military law enforcement activities; 50

10. Conduct of licensure examinations;51

11. Conduct of nationwide tests for elementary and high school students;52

12. Anti-drug enforcement activities;53

13. Sanitary inspections;54

14. Conduct of census work;55

15. Administration of the Civil Aeronautics Board; 56

16. Assistance in installation of weather forecasting devices; 57

17. Peace and order policy formulation in local government units.58

This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never
before questioned.59 What we have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted,60 and whose Constitution, unlike ours, does
not expressly provide for the power to call, the use of military personnel by civilian law
enforcement officers is allowed under circumstances similar to those surrounding the present
deployment of the Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain allowable
circumstances. A provision of the Act states:

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or
Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more
than two years, or both.62

To determine whether there is a violation of the Posse Comitatus Act in the use of military

personnel, the US courts63 apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded
Knee in such a manner that the military personnel subjected the citizens to the exercise of
military power which was regulatory, proscriptive, or compulsory64 George Washington Law
Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83
Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels
some conduct on the part of those claiming relief.1âwphi1 A mere threat of some future injury
would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is committed.
On this point, the Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,66 8(k)67 and 9(a)68of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d)69 of Annex A, all arrested persons are
brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c) 70 of Annex A,
are all low impact and defensive in character. The conclusion is that there being no exercise of
regulatory, proscriptive or compulsory military power, the deployment of a handful of
Philippine Marines constitutes no impermissible use of military power for civilian law
enforcement.71

It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such
apprehensions, however, are unfounded. The power to call the armed forces is just that -
calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in the
deployment of the Marines, the President has violated the fundamental law, exceeded his
authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule
the President’s determination of the factual basis for the calling of the Marines to prevent or
suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the
deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil
liberties of the people that the joint visibility patrol was conceived. Freedom and democracy
will be in full bloom only when people feel secure in their homes and in the streets, not when
the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

EN BANC

G.R. No. 148560               November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner, 

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the
rights of the individual from the vast powers of the State and the inroads of societal pressure.
But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with
very little regard to social interference - he veritably acknowledges that the exercise of rights
and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the
liberty of action of any of their number, is self-protection. The only purpose for which power can
be rightfully exercised over any member of a civilized community, against his will, is to prevent
harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation.
With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the
State to formulate a system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in
the social order, carrying with it a new formulation of fundamental rights and duties more
attuned to the imperatives of contemporary socio-political ideologies. In the process, the web
of rights and State impositions became tangled and obscured, enmeshed in threads of multiple
shades and colors, the skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It is when individual
rights are pitted against State authority that judicial conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080
(An Act Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to
impress upon us that the assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the
"reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens
rea in crimes already punishable under The Revised Penal Code, all of which are purportedly
clear violations of the fundamental rights of the accused to due process and to be informed of
the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or
material possession of any person within the purview of Section Two (2) hereof, acquired by
him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any
other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities, or government owned or
controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular persons or special
interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described in Section 1 (d) hereof,
in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person
who participated with the said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances as
provided by the Revised Penal Code shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment thereof forfeited in favor
of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by
RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par.
(a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c)
Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art.
183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA
No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the
Ombudsman for preliminary investigation with respect to specification "d" of the charges in the
Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses
under specifications "a," "b," and "c" to give the accused an opportunity to file counter-
affidavits and other documents necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of
offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the
charges and the vagueness of the law under which they are charged were never raised in
that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No.
26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance
of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the
ground that the facts alleged therein did not constitute an indictable offense since the law on
which it was based was unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the
issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is
unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the accused to due process;
and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is
predicated on the basic principle that a legislative measure is presumed to be in harmony with
the Constitution.3 Courts invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of constitutional
adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and powers of
another. Thus it has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must
assume that the legislature is ever conscious of the borders and edges of its plenary powers,
and has passed the law with full knowledge of the facts and for the purpose of promoting what
is right and advancing the welfare of the majority. Hence in determining whether the acts of the
legislature are in tune with the fundamental law, courts should proceed with judicial restraint
and act with caution and forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether an interpretation is
fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for
the decision of the court, the constitutionality of the challenged law will not be touched and the
case will be decided on other available grounds. Yet the force of the presumption is not
sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality.
Of course, where the law clearly and palpably transgresses the hallowed domain of the organic
law, it must be struck down on sight lest the positive commands of the fundamental law be
unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging
the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed
an infringement of the constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters
which would enable the accused to determine the nature of his violation. Section 2 is
sufficiently explicit in its description of the acts, conduct and conditions required or forbidden,
and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series

of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any government contract or project
or by reason of the office or position of the public officer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned or controlled corporations or
their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking; (e) by establishing agricultural,
industrial or commercial monopolies or other combinations and/or implementation of decrees
and orders intended to benefit particular persons or special interests; or (f) by taking advantage
of official position, authority, relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are
subject to it what conduct would render them liable to its penalties, its validity will be
sustained. It must sufficiently guide the judge in its application; the counsel, in defending one
charged with its violation; and more importantly, the accused, in identifying the realm of the
proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed
statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at
least ₱50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with
reasonable certainty the various elements of the offense which petitioner is alleged to have
committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy'
Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his
co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR Aseries of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE

AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS (₱200,000,000.00) tobacco excise tax share allocated for
the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-
accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE
OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE
HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS
AND FIFTY CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY
FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING,
DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,

KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none -
that will confuse petitioner in his defense. Although subject to proof, these factual assertions
clearly show that the elements of the crime are easily understood and provide adequate
contrast between the innocent and the prohibited acts. Upon such unequivocal assertions,
petitioner is completely informed of the accusations against him as to enable him to prepare
for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the
terms "combination" and "series" in the key phrase "a combination or series of overt or
criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These
omissions, according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be informed of the nature and
cause of the accusation against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and
void merely because general terms are used therein, or because of the employment of terms
without defining them;6 much less do we have to define every word we use. Besides, there is no
positive constitutional or statutory command requiring the legislature to define each and every
word in an enactment. Congress is not restricted in the form of expression of its will, and its
inability to so define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be
gathered from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be

interpreted in their natural, plain and ordinary acceptation and signification, 7 unless it is evident
that the legislature intended a technical or special legal meaning to those words. 8 The intention
of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use
statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted definition of the words "combination"
and "series:"

Combination - the result or product of combining; the act or process of combining.

To combine is to bring into such close relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and
temporal succession.

That Congress intended the words "combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative deliberations on the bill which
eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice
of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different
acts. It cannot be a repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series,
we seem to say that two or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a
very good suggestion because if it is only one act, it may fall under ordinary crime but we have
here a combination or series of overt or criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two"
acts may already result in such a big amount, on line 25, would the Sponsor consider deleting
the words "a series of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts
such as." Remove the idea of necessitating "a series." Anyway, the criminal acts are in the
plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in
this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.

SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime.
But when we say "acts of plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts
falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the
public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts
falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in specifically providing for it in the law.

As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is
sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt
or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of
the law, the pattern of overt or criminal acts is directed towards a common purpose or goal
which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And
thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general
plan of action or method' which the principal accused and public officer and others conniving
with him follow to achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple accused vary, the overt or
criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient
notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-
for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute establishing a criminal offense
must define the offense with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be invoked against that specie
of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a
saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.10 But the doctrine does not apply
as against legislations that are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first may be "saved" by proper construction,
while no challenge may be mounted as against the second whenever directed against such
activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when measured
by common understanding and practice.12It must be stressed, however, that the "vagueness"
doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially where, because of the nature of
the act, it would be impossible to provide all the details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza
during the deliberations of the Court that the allegations that the Plunder Law is vague and
overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due process of law."13 The
overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity." 15 The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad statutes.

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

The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it,
in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." 16 In Broadrick v. Oklahoma,17 the Court
ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held that "a
facial challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act would be
valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct
of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional."20 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant."21 Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected.22 It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," 25 and is generally
disfavored.26 In determining the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light of the conduct with which
the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder
Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real.
Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in the law. Every provision
of the law should be construed in relation and with reference to every other part. To be sure, it
will take more than nitpicking to overturn the well-entrenched presumption of constitutionality
and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must
be aware that the law was extensively deliberated upon by the Senate and its appropriate
committees by reason of which he even registered his affirmative vote with full knowledge of
its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and
emphasize the point that courts are loathed to declare a statute void for uncertainty unless the
law itself is so imperfect and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-
Graft and Corrupt Practices Actfor being vague. Petitioners posited, among others, that the
term "unwarranted" is highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e),
violates due process in that it does not give fair warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of
"unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits
through gross inexcusable negligence while in the discharge of their official function and that
their right to be informed of the nature and cause of the accusation against them was violated
because they were left to guess which of the three (3) offenses, if not all, they were being
charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness. The phrases
"manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute
may be committed, and the use of all these phrases in the same Information does not mean
that the indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support;
unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without
justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa.,
405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative
Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice
and make unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is
the act of a public officer, in the discharge of his official, administrative or judicial functions, in
giving any private party benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality, evident bad faith or gross
inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the
term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was
understood in its primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder
Law circumvents the immutable obligation of the prosecution to prove beyond reasonable
doubt the predicate acts constituting the crime of plunder when it requires only proof of a
pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal
prosecution for plunder, as in all other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused
is entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to
command the respect and confidence of the community in the application of criminal law. It is
critical that the moral force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also important in our free
society that every individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired
such exalted stature in the realm of constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction except upon proof beyond reasonable
doubt of every fact necessary to constitute the crime with which he is charged. 30 The following
exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in
the information must be proven beyond reasonable doubt. If we will prove only one act and find
him guilty of the other acts enumerated in the information, does that not work against the right
of the accused especially so if the amount committed, say, by falsification is less than ₱100
million, but the totality of the crime committed is ₱100 million since there is malversation,
bribery, falsification of public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of
the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was
charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt criminal acts has to be
taken singly. For instance, in the act of bribery, he was able to accumulate only ₱50,000 and in
the crime of extortion, he was only able to accumulate ₱1 million. Now, when we add the
totality of the other acts as required under this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one
essential element of the crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total amount would be ₱110 or
₱120 million, but there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the amount involved in
these transactions, proved beyond reasonable doubt, is ₱100 million, then there is a crime of
plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the
standard quantum of proof in the crime of plunder. The burden still remains with the
prosecution to prove beyond any iota of doubt every fact or element necessary to constitute
the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers
from a dismal misconception of the import of that provision. What the prosecution needs to
prove beyond reasonable doubt is only a number of acts sufficient to form a combination or
series which would constitute a pattern and involving an amount of at least ₱50,000,000.00.
There is no need to prove each and every other act alleged in the Information to have been
committed by the accused in furtherance of the overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is
charged in an Information for plunder with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by
pattern at least two (2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the
very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as
defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This
conclusion is consistent with reason and common sense. There would be no other explanation
for a combination or series of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it necessarily follows with the establishment
of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that
"pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two
pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that
without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of
the commission of the acts complained of?

ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised
Penal Code, but not plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond
reasonable doubt without applying Section 4, can you not have a conviction under the Plunder
Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of
the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence
and it contains a substantive element of the crime of plunder. So, there is no way by which we
can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of
the crime of plunder and that cannot be avoided by the prosecution. 32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can
be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and
"pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal
case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any
substantive right in favor of the accused but only operates in furtherance of a remedy. It is only
a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a
conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4
is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the
rest of the provisions without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any
person or circumstance is held invalid, the remaining provisions of this Act and the application
of such provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a
result of the nullity of some of its provisions, assuming that to be the case although it is not
really so, all the provisions thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in
se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be
proven in a prosecution for plunder. It is noteworthy that the amended information alleges that
the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is
the reason he claims the statute is void, petitioner cites the following remarks of Senator
Tañada made during the deliberation on S.B. No. 733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence sufficient to establish the
conspiracy or scheme to commit this crime of plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the
transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4,
Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster
process of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . .34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal act done to further the scheme or
conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal
acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the
pattern are concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the
court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of
plunder since the degree of responsibility of the offender is determined by his criminal intent. It
is true that §2 refers to "any person who participates with the said public officer in the
commission of an offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal in the crime. As Justice
Holmes said: "We agree to all the generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in construing laws as saying what they
obviously mean."35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have
been resolved in the affirmative by the decision of Congress in 1993 to include it among the
heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished
with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes,
this Court held in People v. Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal course of his or her growth as a
human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes; as well as
murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim
is detained for more than three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with homicide, rape or
intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant
of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death,
are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of
the subject criminal acts in the scheme of the larger socio-political and economic context in
which the state finds itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and syndicated
criminality that so deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very survival
of the people it governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug
offenses involving government officials, employees or officers, that their perpetrators must not
be allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is
a malum in se. For when the acts punished are inherently immoral or inherently wrong, they
are mala in se37 and it does not matter that such acts are punished in a special law, especially
since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be
absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to
the inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to
resurrect this long dead issue, the same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history. The declaration of this Court therein that
RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high
places which have shaken its very foundation. The anatomy of graft and corruption has become
more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and
more ingenious ways to bilk the coffers of the government. Drastic and radical measures are
imperative to fight the increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread
like a malignant tumor and ultimately consume the moral and institutional fiber of our nation.
The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately
eradicate this scourge and thus secure society against the avarice and other venalities in public
office.

These are times that try men's souls. In the checkered history of this nation, few issues of
national importance can equal the amount of interest and passion generated by petitioner's
ignominious fall from the highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among our people that may
linger for a long time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

EN BANC

G.R. No. 160261             November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, 

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE
SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE
GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners,

ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention, 
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR.,
IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, 
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES,
FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF
THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV,
HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ,
ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON,
JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU
YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-
DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON,
LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO,
HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS
NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO
BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO,
JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE
VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA,
JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV
BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY
ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, 
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS
SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO
NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA,
GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE
ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A.
AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER
CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA,
SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL
ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR.,
THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, 

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON.
SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF
THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A
TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE
HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner, 
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner, 
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ,
GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-
ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE
PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE
GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE
IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner, 

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.
x---------------------------------------------------------x

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner, 
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86
SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G.
DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES,
REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners, 

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.

DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner, 

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON.
JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT,
HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON,

PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER,
ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS
ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC],
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW],
REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA],
REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF
COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.],
MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE
SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one
year bar provided in the Constitution, and whether the resolution thereof is a political question
– has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon
by a political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of
the essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy in
the discharge by each of that part of the governmental power assigned to it by the sovereign
people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must
be given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases
of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once

within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the
Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of two-thirds of all the Members of the
Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

Section 2. Mode of Initiating
Impeachment. – Impeachment
shall be initiated only by a verified
complaint for impeachment filed
by any Member of the House of
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. – Impeachment
Proceedings Deemed Initiated. –
In cases where a Member of the
Representatives or by any citizen
upon a resolution of endorsement
by any Member thereof or by a
verified complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of
the House.
RULE V
House files a verified complaint
of impeachment or a citizen files
a verified complaint that is
endorsed by a Member of the
House through a resolution of
endorsement against an
impeachable officer,
impeachment proceedings
against such official are deemed
initiated on the day the
Committee on Justice finds that
the verified complaint and/or
resolution against such official, as
the case may be, is sufficient in
substance, or on the date the
House votes to overturn or affirm
the finding of the said Committee
that the verified complaint
and/or resolution, as the case
may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or
endorsed, as the case may be, by
at least one-third (1/3) of the
Members of the
House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
Section 17. Bar Against
 BAR AGAINST IMPEACHMENT Initiation Of Impeachment
Proceedings. – Within a period of
Section 14. Scope of Bar. – No
one (1) year from the date
impeachment proceedings shall be
impeachment proceedings are
initiated against the same official
deemed initiated as provided in
more than once within the period
Section 16 hereof, no
of one (1) year.
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice
on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for
being insufficient in substance.10 To date, the Committee Report to this effect has not yet been
sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged
results of the legislative inquiry initiated by above-mentioned House Resolution. This second
impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment"
signed by at least one-third (1/3) of all the Members of the House of Representatives. 13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition
and Mandamus are of transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint
against then Ombudsman Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and approved on November 28,
2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III,
Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of
mandamus directing respondents House of Representatives et. al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint
and/or strike it off the records of the House of Representatives, and to promulgate rules which
are consistent with the Constitution; and (3) this Court permanently enjoin respondent House
of Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary
to conduct the impeachment trial on the second impeachment complaint, pray for the issuance
of a writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez
v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that
the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the
second impeachment complaint, and respondents De Venecia and Nazareno from transmitting
the Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in
their petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its
prosecutors and agents to desist from conducting any proceedings or to act on the
impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the
filing of the second impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate
from conducting further proceedings on the second impeachment complaint and that this
Court declare as unconstitutional the second impeachment complaint and the acts of
respondent House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof,
prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance,
prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and
all proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate;
and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as
the resolution of endorsement and impeachment by the respondent House of Representatives
be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to
the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration
of the November 28, 2001 House Impeachment Rules as null and void for being
unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy
of the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion was
put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor General, to comment on the petitions
not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to maintain the status
quo, enjoining all the parties and others acting for and in their behalf to refrain from
committing acts that would render the petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C.
De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the
Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article
XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral
arguments on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and
Attorneys Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General
Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on
November 3, 2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on
what issues and at what time; and whether it should be exercised by this Court at this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the

Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those
arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the
exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet
remaining. These matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the
present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and among
the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but
as much as it was within the power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels,for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. In
the United States where no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.

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

scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass
upon questions of wisdom, justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments, not only because the legislature
is presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation
of powers" of the different branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts25 as a necessary consequence of the
judicial power itself, which is "the power of the court to settle actual controversies involving
rights which are legally demandable and enforceable." 26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law
of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well as other departments, are
bound by that instrument.28(Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It obtains

not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere. But it does not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the
government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them." 33 To him,
"[j]udicial review is the chief, indeed the only, medium of participation – or instrument of
intervention – of the judiciary in that balancing operation." 34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are
mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief
Justice Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or
instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial
law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the circumstance that in a number of
cases against the government, which then had no legal defense at all, the solicitor general set
up the defense of political questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus, that is, the authority of courts to
order the release of political detainees, and other matters related to the operation and effect of
martial law failed because the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of
the government as well as those of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are to
be given their ordinary meaning except where technical terms are employed in which case
the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus these are the cases where the need
for construction is reduced to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should
be interpreted in accordance with the intent of its framers. And so did this Court apply this
principle in Civil Liberties Union v. Executive Secretary 38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the provision

under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought
to be prevented or remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order to construe
the whole as to make the words consonant to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the framers and of the people
in the adoption of the Constitution. It may also be safely assumed that the people in ratifying
the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis
and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a provision of
our Constitution merely for the benefit of one person without considering that it could also
affect others.When they adopted subsection 2, they permitted, if not willed, that said
provision should function to the full extent of its substance and its terms, not by itself alone,
but in conjunction with all other provisions of that great document. 43 (Emphasis and
underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the

constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper interpretation therefore depends
more on how it was understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a

political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review. 47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the
system of checks and balances, under which impeachment is the only legislative check on the
judiciary; and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents
likewise point to deliberations on the US Constitution to show the intent to isolate judicial
power of review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American

Constitution and American authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec.
3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues
pertaining to impeachment to the legislature, to the total exclusion of the power of judicial
review to check and restrain any grave abuse of the impeachment process. Nor can it
reasonably support the interpretation that it necessarily confers upon the Senate the inherently
judicial power to determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of
the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to
the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme
Court and lower courts, as expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave
abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings.
While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases, 55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one
year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support

of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when 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. In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the nomination, and rescinding the
election, of a congressman as a member of the House Electoral Tribunal for being violative of
Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of
whether the House representation in the Commission on Appointments was based on
proportional representation of the political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House
of Representatives in removing the petitioner from the Commission on Appointments is subject
to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to
it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question 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.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do
not have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in
cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution and the
laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance
and the well-entrenched rule exception that, when the real party in interest is unable to
vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action, standing restrictions
require a partial consideration of the merits, as well as broader policy concerns relating to the
proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are brought not
by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.77 In fine, when the proceeding
involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the
requirement of personal interest.
In the case of a taxpayer, he is 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
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned
statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83

While an association has legal personality to represent its members, 84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests, 85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice
to clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned 87 to enable the
court to deal properly with all interests involved in the suit, 88 for a judgment in a class suit,
whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all
members of the class whether or not they were before the court. 89 Where it clearly appears
that not all interests can be sufficiently represented as shown by the divergent issues raised in
the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and taxpayers, however, their petition will
stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being raised.90 Applying these determinants,
this Court is satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public. 91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the
matter is totally eliminated. A party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he
failed to allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires
an intervenor to possess a legal interest in the matter in litigation, or in the success of either of
the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts when the
applicant shows facts which satisfy the requirements of the law authorizing intervention. 92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria,
et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court
to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to

join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the
Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator
Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress
against which the herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene was granted and he
was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protection against abuses of legislative power," or
that there is a misapplication of such funds by respondent COMELEC, or that public money is
being deflected to any improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or unconstitutional
law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected
to any improper purpose. Additionally, his mere interest as a member of the Bar does not
suffice to clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture." 96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged
in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been
filed with the House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional act should be
accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this
Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves
when the Articles of Impeachment are presented on a motion to transmit to the same to the
Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate,
the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to
dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings
or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power
to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it 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.99(Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or
reason, this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions conferred upon political
bodies.101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the
issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the
political question doctrine and took cognizance thereof. Ratification by the people of a
Constitution is a political question, it being a question decided by the people in their sovereign
capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which to
enforce its decisions or commands except the power of reason and appeal to conscience which,
after all, reflects the will of God, and is the most powerful of all other powers without
exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted
by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or
instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial
law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during
the deposed regime was marred considerably by the circumstance that in a number of cases
against the government, which then had no legal defense at all, the solicitor general set up
the defense of political questions and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the operation and effect of martial
law failed because the government set up the defense of political question. And the Supreme
Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on
the Judiciary feels that this was not a proper solution of the questions involved. It did not
merely request an encroachment upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of the Commission who are not
lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the
case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced
on September 22, although the proclamation was dated September 21. The obvious reason for
the delay in its publication was that the administration had apprehended and detained
prominent newsmen on September 21. So that when martial law was announced on September
22, the media hardly published anything about it. In fact, the media could not publish any story
not only because our main writers were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being the object of wrath of the
ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September
21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that
1971 Constitutional Convention, dozens of them, were picked up. One of them was our very
own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken
over by representatives of Malacañang. In 17 days, they finished what the delegates to the
1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft
of the 1973 Constitution was presented to the President around December 1, 1972, whereupon
the President issued a decree calling a plebiscite which suspended the operation of some
provisions in the martial law decree which prohibited discussions, much less public discussions
of certain matters of public concern. The purpose was presumably to allow a free discussion on
the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I
may use a word famous by our colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and criticized with such a telling effect that
Malacañang felt the danger of its approval. So, the President suspended indefinitely the holding
of the plebiscite and announced that he would consult the people in a referendum to be held
from January 10 to January 15. But the questions to be submitted in the referendum were not
announced until the eve of its scheduled beginning, under the supposed supervision not of the
Commission on Elections, but of what was then designated as "citizens assemblies or
barangays." Thus the barangays came into existence. The questions to be propounded were
released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite
because the answers given in the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of
the referendum be suspended. When the motion was being heard before the Supreme Court,
the Minister of Justice delivered to the Court a proclamation of the President declaring that the
new Constitution was already in force because the overwhelming majority of the votes cast in
the referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed the
Court and the parties the presidential proclamation declaring that the 1973 Constitution had
been ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and void. The
main defense put up by the government was that the issue was a political question and that the
court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum. None
of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the
Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference between a

referendum and a plebiscite. But another group of justices upheld the defense that the issue
was a political question. Whereupon, they dismissed the case. This is not the only major case
in which the plea of "political question" was set up. There have been a number of other cases
in the past.
x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital duty to her husband. There are some
rights guaranteed by law, but they are so personal that to enforce them by actual compulsion
would be highly derogatory to human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important function.
The powers of government are generally considered divided into three branches: the
Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and
independent of the others. Because of that supremacy power to determine whether a given
law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and offices of
the government as well as those of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any of its officials has acted
without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not
vested in the Supreme Court alone but also in other lower courts as may be created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions
with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a
question as to whether the government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not a political question.
Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack
of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the
political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power. But the
Gentleman will notice it says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are
beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by
the mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine
of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII
of the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the scope
of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases."108 (Emphasis and
underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

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 resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political question. 110 x x x
(Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or 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; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
questioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.112(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits
on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted
within such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.

The first issue goes into the merits of the second impeachment complaint over which this Court
has no jurisdiction. More importantly, any discussion of this issue would require this Court to
make a determination of what constitutes an impeachable offense. Such a determination is a
purely political question which the Constitution has left to the sound discretion of the
legislation. Such an intent is clear from the deliberations of the Constitutional Commission. 113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition.
In fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor. 114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional question and
decide a law to be unconstitutional or invalid, unless such question is raised by the parties and
that when it is raised, if the record also presents some other ground upon which the court
may rest its judgment, that course will be adopted and the constitutional question will be left
for consideration until a case arises in which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional question
only if it is shown that the essential requisites of a judicial inquiry into such a question are
first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest. In determining whether one, some
or all of the remaining substantial issues should be passed upon, this Court is guided by the
related cannon of adjudication that "the court should not form a rule of constitutional law
broader than is required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution 120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by the facts of these consolidated cases.
This opinion is further strengthened by the fact that said petitioners have raised other grounds
in support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct
inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore
absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due process
and the right not be compelled to testify against one's self. 123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since
the second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution
of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution of impeachment" was not
filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned

Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x" 124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order
for said second impeachment complaint to automatically become the Articles of Impeachment
and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not
merely endorsed, by at least one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the second impeachment complaint
should have been calendared and referred to the House Committee on Justice under Section
3(2), Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified
the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are,
constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V
of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for
violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result
thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the power
of review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125But this argument is very much like saying
the Legislature has a moral compulsion not to pass laws with penalty clauses because Members
of the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound
to take cognizance of the instant petitions.127 In the august words of amicus curiae Father
Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To
renounce it, even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it,
it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect
[him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral fiber strong enough to resist the
temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled
in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that
all of them were interested parties to said case as respondents therein. This would have
reduced the Tribunal's membership to only its three Justices-Members whose disqualification
was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in
the Tribunal by any of his other colleagues in the Senate without inviting the same objections to
the substitute's competence, the proposed mass disqualification, if sanctioned and ordered,
would leave the Tribunal no alternative but to abandon a duty that no other court or body can
perform, but which it cannot lawfully discharge if shorn of the participation of its entire
membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in the
highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or
mode for settling such unusual situations or for the substitution of Senators designated to the
Tribunal whose disqualification may be sought. Litigants in such situations must simply place
their trust and hopes of vindication in the fairness and sense of justice of the Members of the
Tribunal. Justices and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal
may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal.
Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the
resolution of a case where he sincerely feels that his personal interests or biases would stand in
the way of an objective and impartial judgment. What we are merely saying is that in the light
of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its
entire membership of Senators and that no amendment of its Rules can confer on the three
Justices-Members alone the power of valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. It affects the very heart of judicial
independence. The proposed mass disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort, and
as a necessity in the determination of real, earnest and vital controversy between individuals. It
never was the thought that, by means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of. This
rule has found most varied application. Thus, if a case can be decided on either of two grounds,
one involving a constitutional question, the other a question of statutory construction or
general law, the Court will decide only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal Constitution are frequently dismissed
because the judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show
that he is injured by its operation. Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in the performance of his official duty will
not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought
by a citizen who sought to have the Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained
although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has
availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided (citations
omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from

different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable official. 137 Intervenor
Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court
to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon
their constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or
the other, itself constitutes a decision for the respondent and validation, or at least quasi-
validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were
not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-
existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that
any of the branches of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then law
becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers] are
guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist
encroachments by governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16

and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that
Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has
the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean
"to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article
XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of
a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to
the Senate. The middle consists of those deliberative moments leading to the formulation of
the articles of impeachment. The beginning or the initiation is the filing of the complaint and its
referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in
favor of impeachment or when the House reverses a contrary vote of the Committee. Note that
the Rule does not say "impeachment proceedings" are initiated but rather are "deemed
initiated." The language is recognition that initiation happened earlier, but by legal fiction there
is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring
supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think, these
would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights and
Good Government which took charge of the last impeachment resolution filed before the First
Batasang Pambansa. For the information of the Committee, the resolution covers several
steps in the impeachment proceedings starting with initiation, action of the Speaker
committee action, calendaring of report, voting on the report, transmittal referral to the
Senate, trial and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval
of the amendment submitted by Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The
procedure, as I have pointed out earlier, was that the initiation starts with the filing of the
complaint. And what is actually done on the floor is that the committee resolution containing
the Articles of Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which initiates
it. It only approves or disapproves the resolution. So, on that score, probably the Committee
on Style could help in rearranging these words because we have to be very technical about this.
I have been bringing with me The Rules of the House of Representatives of the U.S. Congress.
The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I
have submitted my proposal, but the Committee has already decided. Nevertheless, I just want
to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States regarding
impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on page
2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase
WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word
"by" with OF, so that the whole section will now read: "A vote of at least one-third of all the
Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of
Impeachment OF the Committee or to override its contrary resolution. The vote of each
Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with it the Articles of Impeachment.
As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case
of the direct filing of a verified compliant of one-third of all the Members of the House. I will
mention again, Madam President, that my amendment will not vary the substance in any way.
It is only in keeping with the uniform procedure of the House of Representatives of the United
States Congress. Thank you, Madam President.143 (Italics in the original; emphasis and
udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of the
provision of Section 3 (3) was to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of the complaint, and the vote of
one-third of the House in a resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a verified complaint under Section 3,
paragraph (2), Article XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,

who was also a member of the 1986 Constitutional Commission, that the word "initiate" as
used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The
object in the first sentence is "impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term
"cases" must be distinguished from the term "proceedings." An impeachment case is the legal
controversy that must be decided by the Senate. Above-quoted first provision provides that the
House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that
sense that the House has "exclusive power" to initiate all cases of impeachment. No other body
can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding"
must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other hand, proceeding is a
progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but
in the House and consists of several steps: (1) there is the filing of a verified complaint either by
a Member of the House of Representatives or by a private citizen endorsed by a Member of the
House of the Representatives; (2) there is the processing of this complaint by the proper
Committee which may either reject the complaint or uphold it; (3) whether the resolution of
the Committee rejects or upholds the complaint, the resolution must be forwarded to the
House for further processing; and (4) there is the processing of the same complaint by the
House of Representatives which either affirms a favorable resolution of the Committee or
overrides a contrary resolution by a vote of one-third of all the members. If at least one third of
all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted
to the Senate. It is at this point that the House "initiates an impeachment case." It is at this
point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding
is initiated or begins, when a verified complaint is filed and referred to the Committee on
Justice for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of
the House shall be necessary… to initiate impeachment proceedings," this was met by a
proposal to delete the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted
and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for
action. By his explanation, this interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by
the people, both ordinary and sophisticated, as they understand it; and that ordinary people
read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they
understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is
contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing
of the impeachment complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the
same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning
because of the latter's balanced perspectives and disinterestedness. 148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission –
Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power
to promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within sixty session days
from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and
the result which is sought to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more
emphatic as he stressed that in the Philippine setting there is even more reason for courts to
inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable.
Nor do I agree that we will trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the principle of separation of power
is no longer an impregnable impediment against the interposition of judicial power on cases
involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries
of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the rules of its
proceedings." It appears that in pursuance of this authority the House had, prior to that day,
passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of members
sufficient to make a quorum in the hall of the House who do not vote shall be noted by the
clerk and recorded in the journal, and reported to the Speaker with the names of the members
voting, and be counted and announced in determining the presence of a quorum to do
business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the Speaker or clerk may of their own
volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or
folly, of such a rule present any matters for judicial consideration. With the courts the question
is only one of power. The Constitution empowers each house to determine its rules of
proceedings. It may not by its rules ignore constitutional restraints or violate fundamental
rights, and there should be a reasonable relation between the mode or method of
proceedings established by the rule and the result which is sought to be attained. But within
these limitations all matters of method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be better, more accurate, or even
more just. It is no objection to the validity of a rule that a different one has been prescribed and
in force for a length of time. The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be exercised by the House, and within
the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional
rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not
violate any fundamental right; and (3) its method had a reasonable relationship with the result
sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be
defeated by the mere invocation of the principle of separation of powers. 154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically reject

the political question defense when its interposition will cover up abuse of power. For section
1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x 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." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not
also xeroxed from the US Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our experience under martial law
where abusive exercises of state power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion,
the CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the
Executive and the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed
it as a duty of this Court to strike down any act of a branch or instrumentality of government
or any of its officials done with grave abuse of discretion amounting to lack or excess of
jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this
Court against the other branches of government despite their more democratic character, the
President and the legislators being elected by the people.156

xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . 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'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers
of this court vis-à-vis the other branches of government. This provision was dictated by our
experience under martial law which taught us that a stronger and more independent judiciary is
needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government committed
with grave abuse of discretion, the new Constitution transformed this Court from passivity to
activism. This transformation, dictated by our distinct experience as nation, is not merely
evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do; under the 1987
Constitution, there is a shift in stress – this Court is mandated to approach constitutional
violations not by finding out what it should not do but what it must do. The Court must
discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional
provision as the case at bar once more calls us to define the parameters of our power to review
violations of the rules of the House. We will not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power or if we wield it with timidity. To
be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision
stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at
bar, the lessons of our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated in the foregoing manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within
a one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith –
offered suggestions for a return to a state of normalcy in the official relations of the
governmental branches affected to obviate any perceived resulting instability upon areas of
national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of
a genuine constitutional material which only this Court can properly and competently address
and adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of
the judiciary is to complement the discharge by the executive and legislative of their own
powers to bring about ultimately the beneficent effects of having founded and ordered our
society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the
impeachment proceedings against the Chief Justice, the members of this Court have actually
closed ranks to protect a brethren. That the members' interests in ruling on said issue is as
much at stake as is that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the
personalities involved in the suits or actions. This Court has dispensed justice over the course of
time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered judgment according to
the law and the facts. Why can it not now be trusted to wield judicial power in these petitions
just because it is the highest ranking magistrate who is involved when it is an incontrovertible
fact that the fundamental issue is not him but the validity of a government branch's official act
as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of
any member of the judiciary from taking part in a case in specified instances. But to disqualify
this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable
of impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that
of its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted
to no other than the Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this
crucible of a democratic process, if only to discover that it can resolve differences without the
use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House of Representatives
on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.

Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.

EN BANC

G.R. No. 169777*             April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate

President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity
as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD
J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III,
RALPH G. RECTO, and MAR ROXAS, Petitioners, 
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

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

G.R. No. 169659             April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE
DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, 
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.

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

G.R. No. 169660             April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner, 
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.

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

G.R. No. 169667             April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, 

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

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

G.R. No. 169834             April 20, 2006

PDP- LABAN, Petitioner, 
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246             April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY
C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners, 
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION
CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early
history of republican thought, however, it has been recognized that the head of government
may keep certain information confidential in pursuit of the public interest. Explaining the
reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally
characterize the proceedings of one man, in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is increased, these
qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends
itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has
abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They
thus pray for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance
under review has come from a co-equal branch of government, which thus entitles it to a
strong presumption of constitutionality. Once the challenged order is found to be indeed
violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the
highest expression of the sovereign will of the Filipino people, must prevail over any issuance of
the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia,
the attendance of officials and employees of the executive department, bureaus, and offices
including those employed in Government Owned and Controlled Corporations, the Armed
Forces of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to
various officials of the Executive Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of the North Luzon Railways
Corporation with the China National Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations 2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the
Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga;
Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to
attend as resource persons in a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005
entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping
Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1,
2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria
Ana Consuelo Madrigal – Resolution Directing the Committee on National Defense and Security
to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon – Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the
Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of
Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal
attention" while "some of the invited AFP officers are currently attending to other urgent
operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and
opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are
unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of
the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the
NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on
the contract agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights
of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution,
and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The
salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article

VI, Section 22 of the Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the government, all heads of departments
of the Executive Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental
to the operation of government and rooted in the separation of powers under the Constitution
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the
Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public
Officials and Employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public to prejudice the
public interest.

Executive privilege covers all confidential or classified information between the President and
the public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by
this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and

executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are
covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in
the judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such
other officers who in the judgment of the Chief of the PNP are covered by the executive
privilege;

Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the rights of
public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita
a copy of E.O. 464, and another letter8 informing him "that officials of the Executive
Department invited to appear at the meeting [regarding the NorthRail project] will not be able
to attend the same without the consent of the President, pursuant to [E.O. 464]" and that "said
officials have not secured the required consent from the President." On even date which was
also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to
Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him
"that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of
the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking
a written approval from the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through,
with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their
military posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary
Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro
Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II,
Monetary Board Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent
personal regrets likewise citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O.
464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members
Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino,
Courage, an organization of government employees, and Counsels for the Defense of Liberties
(CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all
claiming to have standing to file the suit because of the transcendental importance of the issues
they posed, pray, in their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional summons.
Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its
right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that
E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of laws; Courage
alleges that the tenure of its members in public office is predicated on, and threatened by, their
submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL
alleges that its members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a
citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his
petition that E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of
17 legal resource non-governmental organizations engaged in developmental lawyering and
work with the poor and marginalized sectors in different parts of the country, and as an
organization of citizens of the Philippines and a part of the general public, it has legal standing
to institute the petition to enforce its constitutional right to information on matters of public
concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared
null and void for being unconstitutional and that respondent Executive Secretary Ermita be
ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in
the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and
material injury, as it has already sustained the same with its continued enforcement since it
directly interferes with and impedes the valid exercise of the Senate’s powers and functions
and conceals information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared
unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into
the Philippine Senate and House of Representatives, filed a similar petition for certiorari and
prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464
because it hampers its legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be
resolved to avert a constitutional crisis between the executive and legislative branches of the
government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping
scheduled on February 10, 2005. Gen. Senga replied, however, by letter 15 dated February 8,
2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a
clearance from the President to allow [them] to appear before the public hearing" and that
"they will attend once [their] request is approved by the President." As none of those invited
appeared, the hearing on February 10, 2006 was cancelled. 16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food
and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund
under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and
December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA
Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana,17 and those from the Department of Budget and Management 18 having
invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and
Department of Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of appropriate clearance from the
President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional
right to be informed on matters of public interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents
from implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following
substantive issues were ventilated: (1) whether respondents committed grave abuse of
discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of
the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art.
VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an
actual case or controversy that calls for judicial review was not taken up; instead, the parties
were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its
face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four
instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract. 22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it
would no longer file its memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

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

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of
whether the requisites for a valid exercise of the Court’s power of judicial review are present is
in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have standing to challenge the validity of
the subject act or issuance; otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case. 39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall
be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659,
169660 and 169667 make it clear that they, adverting to the non-appearance of several officials
of the executive department in the investigations called by the different committees of the
Senate, were brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions.
They maintain that Representatives Ocampo et al. have not shown any specific prerogative,
power, and privilege of the House of Representatives which had been effectively impaired by
E.O. 464, there being no mention of any investigation called by the House of Representatives or
any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such
interest falls short of that required to confer standing on them as parties "injured-in-fact." 40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a
personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual
members are not the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin 42 and
Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464. 44

That the Senate of the Philippines has a fundamental right essential not only for intelligent
public decision-making in a democratic system, but more especially for sound legislation 45 is not
disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access
information that is crucial to law-making.46 Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the controversy and is the proper
party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain
inviolate the prerogative, powers and privileges vested by the Constitution in their office and
are allowed to sue to question the validity of any official action which they claim infringes their
prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino
(Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of
E.O. 464, the absence of any claim that an investigation called by the House of Representatives
or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it
being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it
obtained three seats in the House of Representatives in the 2004 elections and is, therefore,
entitled to participate in the legislative process consonant with the declared policy underlying
the party list system of affording citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined political constituencies to contribute to
the formulation and enactment of legislation that will benefit the nation. 48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions,
passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary. 49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of
citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its
lawyer members,50 invoke their constitutional right to information on matters of public concern,
asserting that the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights 51 and to the maintenance of the balance of
power among the three branches of the government through the principle of checks and
balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental
importance, however, it must establish (1) the character of the funds (that it is public) or other
assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government,
and (3) the lack of any party with a more direct and specific interest in raising the questions
being raised.54 The first and last determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in
the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition.
Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is
only a "generalized interest" which it shares with the rest of the political parties. Concrete
injury, whether actual or threatened, is that indispensable element of a dispute which serves in
part to cast it in a form traditionally capable of judicial resolution. 55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials
invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that
President Arroyo has actually withheld her consent or prohibited the appearance of the invited
officials.56 These officials, they claim, merely communicated to the Senate that they have not
yet secured the consent of the President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on
September 28, 2005, respondents claim that the instruction not to attend without the
President’s consent was based on its role as Commander-in-Chief of the Armed Forces, not on
E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that
the President will abuse its power of preventing the appearance of officials before Congress,
and that such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or
prohibited the appearance of the officials concerned immaterial in determining the existence of
an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require
either a deliberate withholding of consent or an express prohibition issuing from the President
in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials
invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait
for any further event before considering the present case ripe for adjudication. Indeed, it would
be sheer abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress,
deprives Congress of the information in the possession of these officials. To resolve the
question of whether such withholding of information violates the Constitution, consideration of
the general power of Congress to obtain information, otherwise known as the power of inquiry,
is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the

Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
(Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that,
in the latter, it vests the power of inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that
the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista
and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a
leading witness in the controversy, was called to testify thereon by the Senate. On account of
his refusal to answer the questions of the senators on an important point, he was, by resolution
of the Senate, detained for contempt. Upholding the Senate’s power to punish Arnault for
contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress
with power to make investigations and exact testimony to the end that it may exercise its
legislative functions advisedly and effectively, such power is so far incidental to the legislative
function as to be implied. In other words, the power of inquiry – with process to enforce it – is
an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative body does not itself
possess the requisite information – which is not infrequently true – recourse must be had to
others who do possess it. Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is not always accurate or
complete; so some means of compulsion is essential to obtain what is needed. 59 . . . (Emphasis
and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive
with the power to legislate.60 The matters which may be a proper subject of legislation and
those which may be a proper subject of investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in
Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure
of public funds of which Congress is the guardian, the transaction, the Court held, "also
involved government agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are
the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by
parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to
the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to
avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Given such statement in its invitations, along with the usual indication of
the subject of inquiry and the questions relative to and in furtherance thereof, there would be
less room for speculation on the part of the person invited on whether the inquiry is in aid of
legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power
of inquiry. The provision requires that the inquiry be done in accordance with the Senate or
House’s duly published rules of procedure, necessarily implying the constitutional infirmity of
an inquiry conducted without duly published rules of procedure. Section 21 also mandates that
the rights of persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of
abuse of the legislative power of inquiry might be established, resulting in palpable violations of
the rights guaranteed to members of the executive department under the Bill of Rights. In such
instances, depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the
power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this
term figures prominently in the challenged order, it being mentioned in its provisions, its
preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to
the promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims
of varying kinds.67Tribe, in fact, comments that while it is customary to employ the phrase
"executive privilege," it may be more accurate to speak of executive privileges "since
presidential refusals to furnish information may be actuated by any of at least three distinct
kinds of considerations, and may be asserted, with differing degrees of success, in the context
of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature
that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the
informer’s privilege, or the privilege of the Government not to disclose the identity of persons
who furnish information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to
resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might reveal military or state
secrets. The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the
executive from disclosure requirements applicable to the ordinary citizen or organization where
such exemption is necessary to the discharge of highly important executive responsibilities
involved in maintaining governmental operations, and extends not only to military and
diplomatic secrets but also to documents integral to an appropriate exercise of the executive’
domestic decisional and policy making functions, that is, those documents reflecting the frank
expression necessary in intra-governmental advisory and deliberative
communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that
it would be considered privileged in all instances. For in determining the validity of a claim of
privilege, the question that must be asked is not only whether the requested information falls
within one of the traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974.
In issue in that case was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents
relating to the Watergate investigations. The claim of privilege was based on the President’s
general interest in the confidentiality of his conversations and correspondence. The U.S. Court
held that while there is no explicit reference to a privilege of confidentiality in the U.S.
Constitution, it is constitutionally based to the extent that it relates to the effective discharge of
a President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling
that the privilege must be balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it was not there addressing the
issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washington’s refusal to turn over treaty negotiation records to the House of Representatives,
the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals
for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon,
recognized the President’s privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee. Ruling that the balance favored
the President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte
v. Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example, has all
the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even blunt
or harsh opinions in Presidential decision-making. A President and those who assist him must
be free to explore alternatives in the process of shaping policies and making decisions and to do
so in a way many would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The privilege is fundamental
to the operation of government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information
which the government may withhold from the public, thus acknowledging, in substance if not in
name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding
that there is a "governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters." 80 The same case held that
closed-door Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information
does not extend to matters recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused were exempted
from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a
claim thereof may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also
Section 3, the coverage of department heads under Section 1 is not made to depend on the
department heads’ possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no reference to
executive privilege at all. Rather, the required prior consent under Section 1 is grounded on
Article VI, Section 22 of the Constitution on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When the security of
the State or the public interest so requires and the President so states in writing, the
appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22
of Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis
Section 21 which provides for the power of either House of Congress to "conduct inquiries in
aid of legislation." As the following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two provisions involved distinct
functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear
before the House of Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular Batasang Pambansa – as
the Gentleman himself has experienced in the interim Batasang Pambansa – one of the most
competent inputs that we can put in our committee deliberations, either in aid of legislation or
in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them,
but if they do not come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact
that the Cabinet ministers may refuse to come to the House of Representatives or the Senate
[when requested under Section 22] does not mean that they need not come when they are
invited or subpoenaed by the committee of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm this, Madam
President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can
be held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries
in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads discretionary in
the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee
on Style, precisely in recognition of this distinction, later moved the provision on question hour
from its original position as Section 20 in the original draft down to Section 31, far from the
provision on inquiries in aid of legislation. This gave rise to the following exchange during the
deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go,
Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in
terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its
own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put
Question Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely
as a complement to or a supplement of the Legislative Inquiry. The appearance of the members
of Cabinet would be very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to conduct inquiries during the
question hour. Commissioner Davide’s only concern was that the two provisions on these
distinct powers be placed closely together, they being complementary to each other. Neither
Commissioner considered them as identical functions of Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee – the Committee on Style – shared the view
that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the
other hand, was speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite
meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and
the other ministers accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the question period. There was a
specific provision for a question hour in the 1973 Constitution86 which made the appearance of
ministers mandatory. The same perfectly conformed to the parliamentary system established
by that Constitution, where the ministers are also members of the legislature and are directly
accountable to it.

An essential feature of the parliamentary system of government is the immediate

accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be
responsible to the National Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in the presidential system where the tenure of office of all
elected officials cannot be terminated before their term expired, the Prime Minister and the
Cabinet remain in office only as long as they enjoy the confidence of the National Assembly.
The moment this confidence is lost the Prime Minister and the Cabinet may be changed. 87

The framers of the 1987 Constitution removed the mandatory nature of such appearance
during the question hour in the present Constitution so as to conform more fully to a system of
separation of powers.88 To that extent, the question hour, as it is presently understood in this
jurisdiction, departs from the question period of the parliamentary system. That department
heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in
light of the absence of a mandatory question period, the need to enforce Congress’ right to
executive information in the performance of its legislative function becomes more imperative.
As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is
that the Congress has the right to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by
the Congress upon its right to obtain information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain
executive information, its power of oversight of administration in a system such as ours
becomes a power devoid of most of its practical content, since it depends for its effectiveness
solely upon information parceled out ex gratia by the executive.89 (Emphasis and underscoring
supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should
not be considered as pertaining to the same power of Congress. One specifically relates to the
power to conduct inquiries in aid of legislation, the aim of which is to elicit information that
may be used for legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in keeping with the separation
of powers, states that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21,
the appearance is mandatory for the same reasons stated in Arnault. 90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under
Section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power —
the President on whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which is sanctioned
by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof
is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the
Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the
Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the
provision of said Section 22 of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as possible, in a way that will render
it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their
part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid

of legislation. Congress is not bound in such instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by
the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration
is broad. It covers all senior officials of executive departments, all officers of the AFP and the
PNP, and all senior national security officials who, in the judgment of the heads of offices
designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the
PNP, and the National Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President.
Given the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is
evident that under the rule of ejusdem generis, the determination by the President under this
provision is intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed
above, is properly invoked in relation to specific categories of information and not to categories
of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in possession of information which is, in
the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court
shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is
"covered by the executive privilege," such official is subjected to the requirement that he first
secure the consent of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means nothing more than that
the President may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then
becomes the basis for the official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of
office authorized by the President, has determined that the requested information is privileged,
and that the President has not reversed such determination. Such declaration, however, even
without mentioning the term "executive privilege," amounts to an implied claim that the
information is being withheld by the executive branch, by authority of the President, on the
basis of executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate
President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It
reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the
Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m.,
please be informed that officials of the Executive Department invited to appear at the meeting
will not be able to attend the same without the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from the President.
(Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these
officials are being requested to be resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor does it expressly state that in view of the lack of consent
from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter
assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been made, by the designated head of
office or the President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such determination has
been made, the same must be deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only means that the President has not
reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied
claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive
privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be claimed as privileged even against
Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information cannot be pried
open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied
claim of privilege, a defect that renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information
that are covered by the privilege under the challenged order, Congress is left to speculate as to
which among them is being referred to by the executive. The enumeration is not even intended
to be comprehensive, but a mere statement of what is included in the phrase "confidential or
classified information between the President and the public officers covered by this executive
order."

Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the President has not overturned that
determination. Such declaration leaves Congress in the dark on how the requested information
could be classified as privileged. That the message is couched in terms that, on first impression,
do not seem like a claim of privilege only makes it more pernicious. It threatens to make
Congress doubly blind to the question of why the executive branch is not providing it with the
information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information,

must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed
nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected. 93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and
nothing more, that the disclosures sought by claimant would inhibit the free expression of
opinion that non-disclosure is designed to protect. The government has not shown – nor even
alleged – that those who evaluated claimant’s product were involved in internal policymaking,
generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The
facts upon which the privilege is based must be established. To find these interrogatories
objectionable, this Court would have to assume that the evaluation and classification of
claimant’s products was a matter of internal policy formulation, an assumption in which this
Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
‘precise and certain’ reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description
of the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has
little more than its sua sponte speculation with which to weigh the applicability of the claim. An
improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds requires, the Court can not recognize the
claim in the instant case because it is legally insufficient to allow the Court to make a just and
reasonable determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from outside
scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had
legitimate reasons for failing to produce the records of the association, a decent respect for the
House of Representatives, by whose authority the subpoenas issued, would have required that
(he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would
have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the Committee the opportunity to consider
the objection or remedy is in itself a contempt of its authority and an obstruction of its
processes. His failure to make any such statement was "a patent evasion of the duty of one
summoned to produce papers before a congressional committee[, and] cannot be condoned."
(Emphasis and underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is
meant to protect.103 A useful analogy in determining the requisite degree of particularity would
be the privilege against self-incrimination. Thus, Hoffman v. U.S. 104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he
would incriminate himself – his say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to require him to answer if ‘it clearly
appears to the court that he is mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection which the
privilege is designed to guarantee. To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per
se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for
the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine whether the withholding
of information is justified under the circumstances of each case. It severely frustrates the power
of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding
only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege.
It does not purport to be conclusive on the other branches of government. It may thus be
construed as a mere expression of opinion by the President regarding the nature and scope of
executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the
President can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the President’s
authority and has the effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere
silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of
the executive branch,105 or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities. 106 The doctrine of executive
privilege is thus premised on the fact that certain informations must, as a matter of necessity,
be kept confidential in pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to Congress, the necessity
must be of such high degree as to outweigh the public interest in enforcing that obligation in a
particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to
the President the power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state
that the authority is "By order of the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be wielded only by the highest official
in the executive hierarchy. In other words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such authorization in the instant case
where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b),
is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in
his own judgment, might be covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the possible need for invoking the
privilege. This is necessary in order to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of executive privilege. If,
after the lapse of that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the official to appear
before Congress and may then opt to avail of the necessary legal means to compel his
appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent
of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by
Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights
of persons appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive
officials in the hearings conducted by it, and not with the demands of citizens for information
pursuant to their right to information on matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present controversy is not merely the legislative
power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of documents pursuant to his right
to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to exact testimony
from government officials. These powers belong only to Congress and not to an individual
citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

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

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

The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislature’s power
of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same
is exempt from the need for publication. On the need for publishing even those statutes that do
not directly apply to people in general, Tañada v. Tuvera states:

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot be said that such a
law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party, even in courts of
justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above, E.O.
464 has a direct effect on the right of the people to information on matters of public concern. It
is, therefore, a matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have been apprised of this
issuance before it was implemented.

Conclusion

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

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

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of
secrecy, based on the divine right of kings and nobles, and replace it with a presumption in
favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied) 109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power
of our legislature to inquire into the operations of government, but we shall have given up
something of much greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence
to the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.

SO ORDERED.

CONCHITA CARPIO MORALES 

Associate Justice

WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR.,
JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners, 
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, 

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO
C. LOMIBAO, Respondents.

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

G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO,
GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA
C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT
INCIONG, Petitioners, 
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO
LOMIBAO, CHIEF PNP, Respondents.

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

G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO
V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN
CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, 
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

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

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, 

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP), Petitioners, 
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, Respondents.

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

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner, 
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF;
ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL
POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength – the use of force – cannot make wrongs into rights. In this
regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In
cases involving liberty, the scales of justice should weigh heavily against government and in
favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against
their constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and
protected by the Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes
tyranny, with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:

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

She cited the following facts as bases:

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

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

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

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

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

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

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

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

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

effects constitute a clear and present danger to the safety and the integrity of the Philippine
State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief
of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24,
2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were
issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People’s Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo. 4 They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear and present
danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from
petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents’ task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation
of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.6 Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his
arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day would be on February
24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the
PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly
obeyed and issued a public statement: "All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino’s brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his group’s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go
for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of
soldiers would join the rallies to provide a critical mass and armed component to the Anti-
Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was
no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the
military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the field." He claimed
that with the forces of the national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in
Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017
and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.10

By midnight of February 23, 2006, the President convened her security advisers and several
cabinet members to assess the gravity of the fermenting peace and order situation. She
directed both the AFP and the PNP to account for all their men and ensure that the chain of
command remains solid and undivided. To protect the young students from any possible
trouble that might break loose on the streets, the President suspended classes in all levels in
the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the President’s mind were organized for purposes of
destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used against
the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street
and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally
held along Ayala Avenue and Paseo de Roxas Street in Makati City. 12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. 13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded
the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid
Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government during the state of
national emergency." Director General Lomibao stated that "if they do not follow the standards
– and the standards are - if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse
in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos
regime, had long been quashed. Beltran, however, is not a party in any of these petitions.

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

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

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael

Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the
"Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,

Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship"
or "prior restraint." They also claimed that the term "emergency" refers only to tsunami,
typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency" that
warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom
of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to
enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to redress their
grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and
G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections
1,16 2,17 and 418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming
that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to
an exercise by the President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No.
5 are "unconstitutional for being violative of the freedom of expression, including its cognate
rights such as freedom of the press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions

should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et

al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

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

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary
simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of
parties having adverse legal interest;" a real and substantial controversy admitting of specific
relief.25 The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered "moot and academic" by President
Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case 28 or dismiss it on ground of
mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital
issues that must be resolved in the present petitions. It must be stressed that "an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there
is a grave violation of the Constitution;31second, the exceptional character of the situation and
the paramount public interest is involved;32 third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;33and fourth, the case is capable of repetition yet evading review. 34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction
over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5
violates the Constitution. There is no question that the issues being raised affect the public’s
interest, involving as they do the people’s basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the extent of the
protection given by constitutional guarantees.35 And lastly, respondents’ contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they
failed to take into account the Chief Justice’s very statement that an otherwise "moot" case
may still be decided "provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present case falls right within
this exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.

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

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury
cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The
same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct injury
as a result of that action, and it is not sufficient that he has a general interest common to all
members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of
Public Works47 and Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted
the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein
had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has
been observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings. 51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

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

transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress’ taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,55that in cases of transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court

reiterated the "direct injury" test with respect to concerned citizens’ cases involving
constitutional issues. It held that "there must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong

Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members
of Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative
powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond
doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and
"unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor
General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest
of justice that those affected by PP 1017 can be represented by their Congressmen in bringing
to the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a
citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury
which the IBP as an institution or its members may suffer as a consequence of the issuance of
PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former
Senator is of no consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she
is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No.
5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase
Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine
that the President, during his tenure of office or actual incumbency,67 may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It
will degrade the dignity of the high office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to fully attend to
the performance of his official duties and functions. Unlike the legislative and judicial branch,
only one constitutes the executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains accountable to the
people68 but he may be removed from office only in the mode provided by law and that is by
impeachment.69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon
v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr.
v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government." 75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in
the conviction that the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost
evenly divided on the issue of whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in times of war
or national emergency, the President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it intoned, is answerable only to
his conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases
at bar -- echoed a principle similar to Lansang. While the Court considered the President’s
"calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Under the new definition of judicial power,
the courts are authorized not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government. 81 It
speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the
test that "judicial inquiry can go no further than to satisfy the Court not that the President’s
decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid
down is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court
further ruled that "it is incumbent upon the petitioner to show that the President’s decision is
totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing
PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance
of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving statements from the
communist leaders. There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the
Court is convinced that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply
fold her arms and do nothing to prevent or suppress what she believed was lawless violence,
invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists 
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive
law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness
of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the law
and sometimes even against it."84 But Locke recognized that this moral restraint might not
suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis,
the ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and
suspend for a moment the sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people’s first intention is that the State shall not perish. 86

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

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

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized
and attempted to bridge this chasm in democratic political theory, thus:

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

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if
the practice is once established for good objects, they will in a little while be disregarded under
that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it. 89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem
of combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as a
means for the defense of liberal institutions," provided it "serves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life."92 He recognized the two
(2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same
time "imposing limitation upon that power."93Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short…Dictatorship should always be strictly
legitimate in character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."

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

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in
Great Britain, France, Weimar, Germany and the United States, reverted to a description of a
scheme of "constitutional dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the
"constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated

unless it is necessary or even indispensable to the preservation of the State and its
constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…

4) …all uses of emergency powers and all readjustments in the organization of the government
should be effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered
any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never
be permanent in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which
it was instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring the
existence or termination of an emergency, and he places great faith in the effectiveness of
congressional investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience,

were one in saying that, "the suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave danger to the nation is not based upon
sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:

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

emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility. McIlwain clearly recognized the need
to repose adequate power in government. And in discussing the meaning of constitutionalism,
he insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of government but,
but rather in the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for which
all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete
political responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists –-
from Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and,
eventually, to McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice Jackson’s "balanced power
structure."102 Executive, legislative, and judicial powers are dispersed to the President, the
Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is given a role to serve
as limitation or check upon the other. This system does not weaken the President, it
just limits his power, using the language of McIlwain. In other words, in times of emergency,
our Constitution reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim
that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a "chilling effect" to the citizens.

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

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v.
Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on
its face and when ‘such summary action’ is inappropriate. But the plain import of our cases is,
at the very least, that facial overbreadth adjudication is an exception to our traditional rules
of practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their
terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that PP
1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle
that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.
The Court assumes that an overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the controversy, the impact on
the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of
case that is wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt to show whether this
situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt to show that
PP 1017 is vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well any act of insurrection or rebellion"
Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of
the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the

most to the least benign, these are: the calling-out power, the power to suspend the privilege
of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-
out power is that "whenever it becomes necessary," the President may call the armed forces
"to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she
is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter
2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-
owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial
Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that
what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called
upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which
will in any way render more difficult the restoration of order and the enforcement of law." 113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice
Vicente V. Mendoza,114an authority in constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot
be used to stifle or persecute critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people from harm and to restore order
so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than
a call by the President to the armed forces to prevent or suppress lawless violence. As such, it
cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its
use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of
the Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as
it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section
1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail
the clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it

was lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby
place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial
law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No.
292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the force
of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state
of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that
these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot
call the military to enforce or implement certain laws, such as customs laws, laws governing
family and property relations, laws on obligations and contracts and the like. She can only order
the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII
of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency
under PP 1017, can call the military not only to enforce obedience "to all the laws and to all
decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or business affected with public
interest.

What could be the reason of President Arroyo in invoking the above provision when she issued
PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public utility or business affected with
public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law"
thinking of the 1971 Constitutional Convention.122 In effect at the time of its approval was
President Marcos’ Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over "the management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government
of its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President
Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section
18, Article VII grants the President such power, hence, no legitimate constitutional objection
can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war
but also to "other national emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of national emergency"
pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the
declaration of the existence of a state of war), then the Framers could have provided so.
Clearly, they did not intend that Congress should first authorize the President before he can
declare a "state of national emergency." The logical conclusion then is that President Arroyo
could validly declare the existence of a state of national emergency even in the absence of a
Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility
or business affected with public interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution which
relate to the same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to determine the limitation
of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

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

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by

Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The
taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the
"the State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest," it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al.
v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from
the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system hold
that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from stopping production. This
is a job for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article
XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view
of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit
in this definitions are the elements of intensity, variety, and perception. 127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe
of nationwide proportions or effect.131 This is evident in the Records of the Constitutional
Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears
in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene
and, therefore, unable to delegate to the President the power to take over privately-owned
public utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which

extraordinary measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of powers
in one man or group of men. The Filipino people by adopting parliamentary government have
given notice that they share the faith of other democracy-loving peoples in this system, with all
its faults, as the ideal. The point is, under this framework of government, legislation is
preserved for Congress all the time, not excepting periods of crisis no matter how serious.
Never in the history of the United States, the basic features of whose Constitution have been
copied in ours, have specific functions of the legislative branch of enacting laws been
surrendered to another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union.
The truth is that under our concept of constitutional government, in times of extreme perils
more than in normal circumstances ‘the various branches, executive, legislative, and judicial,’
given the ability to act, are called upon ‘to perform the duties and discharge the responsibilities
committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or
business affected with public interest. The President cannot decide whether exceptional
circumstances exist warranting the take over of privately-owned public utility or business
affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over. In short, the President has
no absolute authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon.
Here, the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill
of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible "source of destabilization."
Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members
were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to
celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

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

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not
a mere incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed by policemen
in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders
are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines." They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.139 They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.140 For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the
phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.

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

confronts not only our country, but the international community as well. The following
observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force against
certain states and against groups operating internationally. Lists of states "sponsoring
terrorism" and of terrorist organizations are set up and constantly being updated according to
criteria that are not always known to the public, but are clearly determined by strategic
interests.

The basic problem underlying all these military actions – or threats of the use of force as the
most recent by the United States against Iraq – consists in the absence of an agreed definition
of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s
freedom fighter." The apparent contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or
Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those
who controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to
reach a consensus on the basic issue of definition. The organization has intensified its efforts
recently, but has been unable to bridge the gap between those who associate "terrorism" with
any violent act by non-state groups against civilians, state functionaries or infrastructure or
military installations, and those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic oppression of ethnic and/or
religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs
and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for
the United States, terrorists for the Socialist camp – or, most drastically, the Afghani
Mujahedeen (later to become the Taliban movement): during the Cold War period they were a
group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for
the Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way – because of opposing political interests
that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of
one and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is
in the position of an occupying power or in that of a rival, or adversary, of an occupying power
in a given territory, the definition of terrorism will "fluctuate" accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group outside its territory and
will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this
group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in
each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in
regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital
issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become
even more serious in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War era as well as
medium powers are increasingly being marginalized; and the problem has become even more
acute since the terrorist attacks of 11 September 2001 I the United States. 141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the
part of the police or military. An illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it
is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5.
These acts go far beyond the calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion
of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts
beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

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

The Constitution provides that "the right of the people to be secured in their persons, houses,
papers and effects against unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized."142 The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by
policemen who "held his head and tried to push him" inside an unmarked car; fifth, he was
charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he
was detained for seven (7) hours; and seventh,he was eventually released for insufficiency of
evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without
a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless
arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that
the arresting officers could invoke was their observation that some rallyists were wearing t-
shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that petitioner David
was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition. Further, he also stated that there is insufficient evidence
for the charge of violation of BP 880 as it was not even known whether petitioner David was
the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship.
It may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the assembly itself, may be validly
required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising
their right to peaceful assembly. They were not committing any crime, neither was there a
showing of a clear and present danger that warranted the limitation of that right. As can be
gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot
be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the auspices under which
the meeting was held but as to its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution
protects. If the persons assembling have committed crimes elsewhere, if they have formed or
are engaged in a conspiracy against the public peace and order, they may be prosecuted for
their conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done
merely on the basis of Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a
right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the citizens’ right
to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the
local government units. They have the power to issue permits and to revoke such permits after
due notice and hearing on the determination of the presence of clear and present danger.
Here, petitioners were not even notified and heard on the revocation of their permits. 150 The
first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a person’s right is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without
warrant;second, the police operatives seized several materials for publication; third, the search
was conducted at about 1:00 o’ clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’
to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." Director General Lomibao further stated that "if they do not follow
the standards –and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
– we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for the duration of
the state of national emergency. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage during times
when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion
residing in the same locality. And Section 9 states that the warrant must direct that it be served
in the daytime, unless the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or night. All
these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free
and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v.
Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail"
and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey.153Undoubtedly, the The Daily Tribune was
subjected to these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the most
defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments thereon. The motto should always
be obsta principiis.154

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

JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected
the Tribune for the purpose of gathering evidence and you admitted that the policemen were
able to get the clippings. Is that not in admission of the admissibility of these clippings that
were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get
those past issues. So why do you have to go there at 1 o’clock in the morning and without any
search warrant? Did they become suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not
based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says
that the police could go and inspect and gather clippings from Daily Tribune or any other
newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

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

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say
this, we do not condone this. If the people who have been injured by this would want to sue
them, they can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed
on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for,
as you said, a misapplication of the law. These are acts of the police officers, that is their
responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect
and "should result in no constitutional or statutory breaches if applied according to their
letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling
out by the President of the military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens’ rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would
have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1
rallies" become "unruly and violent." Consequently, the transcendental issues raised by the
parties should not be "evaded;" they must now be resolved to prevent future constitutional
aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017’s extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business
affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting
as Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid standard – that the military and the police should
take only the "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally
defined and made punishable by Congress and should thus be deemed deleted from the said
G.O. While "terrorism" has been denounced generally in media, no law has been enacted to
guide the military, and eventually the courts, to determine the limits of the AFP’s authority in
carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that
(1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of
the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other
materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the
valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary
due process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights
are ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance
of legal limits to arbitrary power, and political responsibility of the government to the
governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take over privately-owned public utility or
business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have
not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless
arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that
these petitioners were committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior restraint on the
press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.
EN BANC

[A.M. NO. 11-7-10-SC - July 31, 2012]

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by
the Retired Chief/Associate Justices of the Supreme Court.

RESOLUTION

PER CURIAM:
The present administrative matter stems from the two Memoranda, dated July 14, 2011 and
August 10, 2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief
Administrative Officer, Office of Administrative Services, to the Office of the Chief Justice. These

Memoranda essentially ask the Court to determine the proper formula to be used in computing
the appraisal value that a retired Chief Justice and several Associate Justices of the Supreme
Court have to pay to acquire the government properties they used during their tenure.

THE FACTUAL ANTECEDENTS

This issue has its roots in the June 8, 2010 Opinion1 issued by the Legal Services Sector, Office of
the General Counsel of the Commission on Audit (COA), which found that an underpayment
amounting to P221,021.50 resulted when five (5) retired Supreme Court justices purchased
from the Supreme Court the personal properties assigned to them during their incumbency in
the Court, to wit:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Valuation under
Valuation under  COA
Difference
Name of Justice Items Purchased CFAG Memorandum
(in pesos)
(in pesos) No. 98-569A
(in pesos)

Artemio Panganiban Toyota Camry, 341,241.10 365,000.00 23,758.90

(Chief Justice) 2003 model

Toyota Grandia, 136,500.00 151,000.00 14,500.00

2002 model

Toyota Camry, 115,800.00 156,000.00 40,200.00

2001 model

Ruben T. Reyes Toyota Camry, 579,532.50 580,600.00 1,067.50

(Associate Justice) 2005 model

Toyota Grandia, 117,300.00 181,200.00 63,900.00

2003 model

Angelina S. Gutierrez Toyota Grandia, 115,800.00 150,600.00 34,800.00

(Associate Justice) 2002 model
Adolfo S. Azcuna Toyota Camry, 536,105.00 543,300.00 9,195.00
(Associate Justice) 2005 model

Toyota Grandia, 117,300.00 145,000.00 27,700.00

2002 model

Sony TV Set 2,399.90 2,500.00 100.10

Ma. Alicia 5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme
Court of the wrong formula in computing the appraisal value of the purchased vehicles.
According to the COA, the Property Division erroneously appraised the subject motor vehicles
by applying Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April
23, 1997 and its guidelines, in compliance with the Resolution of the Court En Banc dated
March 23, 2004 in A.M. No. 03-12-01,3 when it should have applied the formula found in COA
Memorandum No. 98-569-A4 dated August 5, 1998.

Recommendations of the Office of Administrative Services In her Memorandum dated August

10, 2010, Atty. Candelaria recommended that the Court advise the COA to respect the in-house
computation based on the CFAG formula, noting that this was the first time that the COA
questioned the authority of the Court in using CFAG Joint Resolution No. 35 and its guidelines in
the appraisal and disposal of government property since these were issued in 1997. As a matter
of fact, in two previous instances involving two (2) retired Court of Appeals Associate
Justices,5 the COA upheld the in-house appraisal of government property using the formula
found in the CFAG guidelines. More importantly, the Constitution itself grants the Judiciary
fiscal autonomy in the handling of its budget and resources. Full autonomy, among
others,6 contemplates the guarantee of full flexibility in the allocation and utilization of the
Judiciary s resources, based on its own determination of what it needs. The Court thus has the
recognized authority to allocate and disburse such sums as may be provided or required by law
in the course of the discharge of its functions.7 To allow the COA to substitute the Court s policy
in the disposal of its property would be tantamount to an encroachment into this judicial
prerogative.

OUR RULING

We find Atty. Candelaria s recommendation to be well-taken.

The COA s authority to conduct post-audit examinations on constitutional bodies granted fiscal
autonomy is provided under Section 2(1), Article IX-D of the 1987 Constitution, which
states:ςrαlαω

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any
of its subdivisions, agencies, or instrumentalities, including government-owned or controlled
corporations with original charters, and on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted fiscal autonomy under this Constitution.
emphasis ours

This authority, however, must be read not only in light of the Court s fiscal autonomy, but also
in relation with the constitutional provisions on judicial independence and the existing
jurisprudence and Court rulings on these matters.

Separation of Powers and Judicial Independence

In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as

follows:ςrαlαω

The separation of powers is a fundamental principle in our system of government. It obtains

not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere. But it does not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the
government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the Constitution. 9ςrνll

The concept of the independence of the three branches of government, on the other hand,
extends 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. 10 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.11ςrνll
Under the Judiciary s unique circumstances, independence encompasses the idea that
individual judges can freely exercise their mandate to resolve justiciable disputes, while the
judicial branch, as a whole, should work in the discharge of its constitutional functions free of
restraints and influence from the other branches, save only for those imposed by the
Constitution itself.12 Thus, judicial independence can be "broken down into two distinct
concepts: decisional independence and institutional independence."13Decisional independence
"refers to a judge s ability to render decisions free from political or popular influence based
solely on the individual facts and applicable law." 14 On the other hand, institutional
independence "describes the separation of the judicial branch from the executive and
legislative branches of government."15 Simply put, institutional independence refers to the
"collective independence of the judiciary as a body." 16ςrνll

In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P.
Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, 17 the Court delineated
the distinctions between the two concepts of judicial independence in the following
manner:ςrαlαω

One concept is individual judicial independence, which focuses on each particular judge and
seeks to insure his or her ability to decide cases with autonomy within the constraints of the
law. A judge has this kind of independence when he can do his job without having to hear or at
least without having to take it seriously if he does hear criticisms of his personal morality and
fitness for judicial office. The second concept is institutional judicial independence. It focuses on
the independence of the judiciary as a branch of government and protects judges as a class.

A truly independent judiciary is possible only when both concepts of independence are
preserved - wherein public confidence in the competence and integrity of the judiciary is
maintained, and the public accepts the legitimacy of judicial authority. An erosion of this
confidence threatens the maintenance of an independent Third Estate. italics and emphases
ours Recognizing the vital role that the Judiciary plays in our system of government as the sole
repository of judicial power, with the power to determine whether any act of any branch or
instrumentality of the government is attended with grave abuse of discretion, 18no less than the
Constitution provides a number of safeguards to ensure that judicial independence is protected
and maintained.

The Constitution expressly prohibits Congress from depriving the Supreme Court of its
jurisdiction, as enumerated in Section 5, Article VII of the Constitution, or from passing a law
that undermines the security of tenure of the members of the judiciary. 19 The Constitution also
mandates that the judiciary shall enjoy fiscal autonomy, 20 and grants the Supreme Court
administrative supervision over all courts and judicial personnel. Jurisprudence21 has
characterized administrative supervision as exclusive, noting that only the Supreme Court can
oversee the judges and court personnel's compliance with all laws, rules and regulations. No
other branch of government may intrude into this power, without running afoul of the doctrine
of separation of powers.22ςrνll

The Constitution protects as well the salaries of the Justices and judges by prohibiting any
decrease in their salary during their continuance in office,23 and ensures their security of tenure
by providing that "Members of the Supreme Court and judges of lower courts shall hold office
during good behavior until they reach the age of seventy years or become incapacitated to
discharge the duties of their office."24With these guarantees, justices and judges can administer
justice undeterred by any fear of reprisals brought on by their judicial action. They can act
inspired solely by their knowledge of the law and by the dictates of their conscience, free from
the corrupting influence of base or unworthy motives.25ςrνll

All of these constitutional provisions were put in place to strengthen judicial independence, not
only by clearly stating the Court s powers, but also by providing express limits on the power of
the two other branches of government to interfere with the Court s affairs.

Fiscal Autonomy

One of the most important aspects of judicial independence is the constitutional grant of fiscal
autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial
duty (for example, by physically preventing a court from holding its hearings) and just as the
Legislature may not enact laws removing all jurisdiction from courts, 26 the courts may not be
obstructed from their freedom to use or dispose of their funds for purposes germane to judicial
functions. While, as a general proposition, the authority of legislatures to control the purse in
the first instance is unquestioned, any form of interference by the Legislative or the Executive
on the Judiciary s fiscal autonomy amounts to an improper check on a co-equal branch of
government. If the judicial branch is to perform its primary function of adjudication, it must be
able to command adequate resources for that purpose. This authority to exercise (or to compel
the exercise of) legislative power over the national purse (which at first blush appears to be a
violation of concepts of separateness and an invasion of legislative autonomy) is necessary to
maintain judicial independence27 and is expressly provided for by the Constitution through the
grant of fiscal autonomy under Section 3, Article VIII. This provision states:ςrαlαω

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released.

In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal
autonomy in the following manner:ςrαlαω
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources
with the wisdom and dispatch that their needs require. It recognizes the power and authority to
levy, assess and collect fees, fix rates of compensation not exceeding the highest rates
authorized by law for compensation and pay plans of the government and allocate and disburse
such sums as may be provided by law or prescribed by them in the course of the discharge of
their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to
Congress without even informing us, the autonomy given by the Constitution becomes an
empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based. In the interest of comity and cooperation, the Supreme
Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to
constant reminders. We now agree with the petitioners that this grant of autonomy should
cease to be a meaningless provision.29 (emphases ours)

In this cited case, the Court set aside President Corazon Aquino s veto of particular provisions of
the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted
pensions of retired justices of the Supreme Court and the Court of Appeals, on the basis of the
Judiciary s constitutionally guaranteed independence and fiscal autonomy. The Court
ruled:ςrαlαω

In the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly
repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the
utilization of the funds appropriated from the expenditures of the judiciary, including the use of
any savings from any particular item to cover deficits or shortages in other items of the
Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom
in the disposition of the funds allocated to it in the appropriations law. It knows its priorities
just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to
augment appropriations where augmentation is needed.30ςrνll
The Court s declarations in Bengzon make it clear that the grant of fiscal autonomy to the
Judiciary is more extensive than the mere automatic and regular release of its approved annual
appropriations;31real fiscal autonomy covers the grant to the Judiciary of the authority to use
and dispose of its funds and properties at will, free from any outside control or interference.

Application to the Present Case

The Judiciary s fiscal autonomy is realized through the actions of the Chief Justice, as its head,
and of the Supreme Court En Banc, in the exercise of administrative control and supervision of
the courts and its personnel. As the Court En Banc s Resolution (dated March 23, 2004) in A.M.
No. 03-12-01 reflects, the fiscal autonomy of the Judiciary serves as the basis in allowing the
sale of the Judiciary s properties to retiring Justices of the Supreme Court and the appellate
courts:ςrαlαω

WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon

(G.R. No. 103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate
and utilize (its) resources with the wisdom and dispatch that (its) needs require";

WHEREAS, the long-established tradition and practice of Justices or Members of appellate

courts of purchasing for sentimental reasons at retirement government properties they used
during their tenure has been recognized as a privilege enjoyed only by such government
officials; andcralawlibrary

WHEREAS, the exercise of such privilege needs regulation to the end that respect for
sentiments that a retiring Justice attaches to properties he or she officially used during his or
her tenure should be in consonance with the need for restraint in the utilization and disposition
of government resources.

By way of a long standing tradition, partly based on the intention to reward long and faithful
service, the sale to the retired Justices of specifically designated properties that they used
during their incumbency has been recognized both as a privilege and a benefit. This has become
an established practice within the Judiciary that even the COA has previously recognized. 32 The
En Banc Resolution also deems the grant of the privilege as a form of additional retirement
benefit that the Court can grant its officials and employees in the exercise of its power of
administrative supervision. Under this administrative authority, the Court has the power to
administer the Judiciary s internal affairs, and this includes the authority to handle and manage
the retirement applications and entitlements of its personnel as provided by law and by its own
grants.33ςrνll

Thus, under the guarantees of the Judiciary s fiscal autonomy and its independence, the Chief
Justice and the Court En Banc determine and decide the who, what, where, when and how of
the privileges and benefits they extend to justices, judges, court officials and court personnel
within the parameters of the Court s granted power; they determine the terms, conditions and
restrictions of the grant as grantor.

In the context of the grant now in issue, the use of the formula provided in CFAG Joint
Resolution No. 35 is a part of the Court s exercise of its discretionary authority to determine the
manner the granted retirement privileges and benefits can be availed of. Any kind of
interference on how these retirement privileges and benefits are exercised and availed of, not
only violates the fiscal autonomy and independence of the Judiciary, but also encroaches upon
the constitutional duty and privilege of the Chief Justice and the Supreme Court En Banc to
manage the Judiciary s own affairs.

As a final point, we add that this view finds full support in the Government Accounting and
Auditing Manual (GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which
states:ςrαlαω

Section 501. Authority or responsibility for property disposal/divestment. The full and sole
authority and responsibility for the divestment and disposal of property and other assets
owned by the national government agencies or instrumentalities, local government units and
government-owned and/or controlled corporations and their subsidiaries shall be lodged in the
heads of the departments, bureaus, and offices of the national government, the local
government units and the governing bodies or managing heads of government-owned or
controlled corporations and their subsidiaries conformably to their respective corporate
charters or articles of incorporation, who shall constitute the appropriate committee or body to
undertake the same. italics supplied; emphases ours

This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses
the full and sole authority and responsibility to divest and dispose of the properties and assets
of the Judiciary; as Head of Office, he determines the manner and the conditions of disposition,
which in this case relate to a benefit. As the usual practice of the Court, this authority is
exercised by the Chief Justice in consultation with the Court En Banc. However, whether
exercised by the Chief Justice or by the Supreme Court En Banc, the grant of such authority and
discretion is unequivocal and leaves no room for interpretations and insertions.

ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by
the Property Division, Office of `Administrative Services, of the properties purchased by the
retired Chief Justice and Associate Justices of the Supreme Court, based on CFAG Joint
Resolution No. 35 dated April 23, 1997, as directed under the Court Resolution dated March 23,
2004 in A.M. No. 03-12-01, is CONFIRMED to be legal and valid. Let the Commission on Audit be
accordingly advised of this Resolution for its guidance.
SO ORDERED.

.R. No. 179267               June 25, 2013

JESUS C. GARCIA, Petitioner, 
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely:
JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church
and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence
against Filipino women. The National Commission on the Role of Filipino Women (NCRFW)
reported that, for the years 2000-2003, "female violence comprised more than 90o/o of all
forms of abuse and violence and more than 90% of these reported cases were committed by
the women's intimate partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and
Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor,
and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women
and their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former
husband; or any person who has or had a sexual or dating relationship, or with whom the
woman has a common child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social
workers, health care providers, and other local government officials in responding to
complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative
of the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of
her minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against her
husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of
physical abuse; emotional, psychological, and economic violence as a result of marital infidelity
on the part of petitioner, with threats of deprivation of custody of her children and of financial
support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was
eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old,
who is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J.
Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around
her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and children. He forbade private
respondent to pray, and deliberately isolated her from her friends. When she took up law, and
even when she was already working part time at a law office, petitioner trivialized her
ambitions and prevailed upon her to just stay at home. He was often jealous of the fact that his
attractive wife still catches the eye of some men, at one point threatening that he would have
any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of
Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted
to the affair when private respondent confronted him about it in 2004. He even boasted to the
household help about his sexual relations with said bank manager. Petitioner told private
respondent, though, that he was just using the woman because of their accounts with the
bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both
arms and shook her with such force that caused bruises and hematoma. At another time,
petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he sent to
his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the chest and
slapped her many times. When private respondent decided to leave petitioner, Jo-Ann begged
her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small
boys are aware of private respondent's sufferings. Their 6-year-old son said that when he grows
up, he would beat up his father because of his cruelty to private respondent. 11

All the emotional and psychological turmoil drove private respondent to the brink of despair.
On December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was
found by her son bleeding on the floor. Petitioner simply fled the house instead of taking her to
the hospital. Private respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost every week and is taking anti-depressant
medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's
job. He then packed his things and told private respondent that he was leaving her for good. He
even told private respondent's mother, who lives with them in the family home, that private
respondent should just accept his extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would
take her children from her and deprive her of financial support. Petitioner had previously
warned her that if she goes on a legal battle with him, she would not get a single centavo. 14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is
the President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation,
and J-Bros Trading Corporation – of which he and private respondent are both stockholders. In
contrast to the absolute control of petitioner over said corporations, private respondent merely
draws a monthly salary of ₱20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less than ₱200,000.00 a month are paid for
by private respondent through the use of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands
of pesos from the corporations.16 After private respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos. 17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24,
2006 effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act No.
9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will attempt to take her children from her when he
arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation rights
to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial Director
of the PNP to cancel all the Respondent's firearm licenses. He should also be ordered to
surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from
all the corporations from 1 January 2006 up to 31 March 2006, which himself and as President
of the corporations and his Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court by the Comptroller,
copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect Contempt
of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner sues
she will not get a single centavo, the Respondent is ordered to put up a BOND TO KEEP THE
PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol
and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds
that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing. He
further asked that the TPO be modified by (1) removing one vehicle used by private respondent
and returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling
or reducing the amount of the bond from ₱5,000,000.00 to a more manageable level at
₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow
him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
following modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in Indirect
Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners
have left, so that the petitioner Rosalie and her representatives can remove things from the
conjugal home and make an inventory of the household furniture, equipment and other things
in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court
within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation
of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully
comply with the TPO; and committed new acts of harassment against her and their children,
private respondent filed another application24 for the issuance of a TPO ex parte. She alleged
inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the
latter was purportedly no longer president, with the end in view of recovering the Nissan Patrol
and Starex Van used by private respondent and the children. A writ of replevin was served upon
private respondent by a group of six or seven policemen with long firearms that scared the two
small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted
to kidnap him, which incident traumatized the boy resulting in his refusal to go back to school.
On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and
threatened her.26 The incident was reported to the police, and Jo-Ann subsequently filed a
criminal complaint against her father for violation of R.A. 7610, also known as the "Special
Protection of Children Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working
at the conjugal home of a complaint for kidnapping and illegal detention against private
respondent. This came about after private respondent, armed with a TPO, went to said home to
get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl
Jamola) bag in the maids' room, private respondent filed a case for qualified theft against
Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as
follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of
violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in

any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her
mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the petitioner's other household
helpers from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioners are temporarily residing, as well as from the schools of the three children;
Furthermore, that respondent shall not contact the schools of the children directly or indirectly
in any manner including, ostensibly to pay for their tuition or other fees directly, otherwise he
will have access to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for
rental for the period from August 6 to September 6, 2006; and support in arrears from March
2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex
van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent
is ordered to provide the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of Jesus Chua Garcia only and those in which the
conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod
City, and other properties which are conjugal assets or those in which the conjugal partnership
of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in
Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy
of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale,
encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that her
signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for
another ten (10) days, and gave petitioner a period of five (5) days within which to show cause
why the TPO should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its Order 31 dated October 6, 2006 that
petitioner be furnished a copy of said motion. Nonetheless, an Order 32 dated a day earlier,
October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent
portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30)
days and continuously extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the
required comment to private respondent's motion for renewal of the TPO arguing that it would
only be an "exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the
civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 36 (TRO)
against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for
failure of petitioner to raise the constitutional issue in his pleadings before the trial court in the
civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the
validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by
the trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE
OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE
PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A.
9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY
OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO
THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of
R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of the
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so
that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in
the trial court, it will not be considered on appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod
City, petitioner argues that the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of constitutionality." 41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997,"
family courts have exclusive original jurisdiction to hear and decide cases of domestic violence
against women and children.42 In accordance with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least one Family Court in each of several key
cities identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now
provides that Regional Trial Courts designated as Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In
the absence of such court in the place where the offense was committed, the case shall be filed
in the Regional Trial Court where the crime or any of its elements was committed at the option
of the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
authority as a court of general original jurisdiction to pass upon all kinds of cases whether civil,
criminal, special proceedings, land registration, guardianship, naturalization, admiralty or
insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law."46The Constitution vests the power of judicial review or the power to declare
the constitutionality or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all
RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution contemplates
that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty
or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:
SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could
have been raised at the earliest opportunity in his Opposition to the petition for protection
order before the RTC of Bacolod City, which had jurisdiction to determine the same, subject to
the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children,
lays down a new kind of procedure requiring the respondent to file an opposition to the
petition and not an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition
which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a
separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-
claim and third-party complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim for
money or other relief which a defending party may have against an opposing party. 50 A cross-
claim, on the other hand, is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein.51Finally, a third-party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.52As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that
could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is
not prohibited from being raised in the opposition in view of the familiar maxim expressio unius
est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because
the right of private respondent to a protection order is founded solely on the very statute the
validity of which is being attacked53 by petitioner who has sustained, or will sustain, direct injury
as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality
of a statute is one of law which does not need to be supported by evidence. 54 Be that as it may,
Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine
legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing,
it may issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to
the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty
(30) days each time until final judgment is rendered. It may likewise modify the extended or
renewed temporary protection order as may be necessary to meet the needs of the parties.
With the private respondent given ample protection, petitioner could proceed to litigate the
constitutional issues, without necessarily running afoul of the very purpose for the adoption of
the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition
with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698).
Petitioner may have proceeded upon an honest belief that if he finds succor in a superior court,
he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC
expressly disallows the filing of a petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the appellate
court in this case against the enforcement of the TPO, the amended TPOs and other orders
pursuant thereto was improper, and it effectively hindered the case from taking its normal
course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle
a litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the
United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to
their separate and distinct prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution
even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as
to protect women and their children from acts of violence. To issue an injunction against such
orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine
novel issues, or issues of first impression, with far-reaching implications. We have, time and
again, discharged our solemn duty as final arbiter of constitutional issues, and with more
reason now, in view of private respondent's plea in her Comment 59 to the instant Petition that
we should put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is
not enough basis to deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure" 62 – an amalgamation
of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 – providing protection to "all family members, leaving no one in
isolation" but at the same time giving special attention to women as the "usual victims" of
violence and abuse,64 nonetheless, it was eventually agreed that men be denied protection
under the same measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups
have expressed concerns and relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of the household, including
children or the husband, they fear that this would weaken the efforts to address domestic
violence of which the main victims or the bulk of the victims really are the wives, the spouses or
the female partners in a relationship. We would like to place that on record. How does the good
Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence.
But plenty of men are also being abused by women. I am playing safe so I placed here members
of the family, prescribing penalties therefor and providing protective measures for victims. This
includes the men, children, live-in, common-law wives, and those related with the family. 65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to
women and not to families which was the issue of the AWIR group. The understanding that I
have is that we would be having a broader scope rather than just women, if I remember
correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me
wrong. However, I believe that there is a need to protect women's rights especially in the
domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the
opportunity to file a case against their spouses, their live-in partners after years, if not decade,
of battery and abuse. If we broaden the scope to include even the men, assuming they can at all
be abused by the women or their spouses, then it would not equalize the already difficult
situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am
sure that the men in this Chamber who love their women in their lives so dearly will agree with
this representation. Whether we like it or not, it is an unequal world. Whether we like it or not,
no matter how empowered the women are, we are not given equal opportunities especially in
the domestic environment where the macho Filipino man would always feel that he is stronger,
more superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill
because the family members have been included in this proposed measure since the other
members of the family other than women are also possible victims of violence. While women
are most likely the intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand to be victimized and
that children are almost always the helpless victims of violence. I am worried that there may
not be enough protection extended to other family members particularly children who are
excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special
needs of abused children. The same law is inadequate. Protection orders for one are not
available in said law.

I am aware that some groups are apprehensive about granting the same protection to men,
fearing that they may use this law to justify their abusive behavior against women. However,
we should also recognize that there are established procedures and standards in our courts
which give credence to evidentiary support and cannot just arbitrarily and whimsically entertain
baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family
as the basic social institution. Though I recognize the unequal power relations between men
and women in our society, I believe we have an obligation to uphold inherent rights and dignity
of both husband and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would
be removing the "men and children" in this particular bill and focus specifically on women
alone. That will be the net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now
whether she is inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I
will propose an amendment to the amendment rather than object to the amendment, Mr.
President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular
measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact,
it is not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen
14, 15-year-old children being abused by their fathers, even by their mothers. And it breaks my
heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update
that. It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill
but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding.
Congress has made its choice and it is not our prerogative to supplant this judgment. The choice
may be perceived as erroneous but even then, the remedy against it is to seek its amendment
or repeal by the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law. 68 We only step in
when there is a violation of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in
the early case of Victoriano v. Elizalde Rope Workers' Union 69 is instructive:

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

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

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a
valid classification as shall hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of violence and abuse to whom the
State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely
than men to be victims of violence; and the widespread gender bias and prejudice against
women all make for real differences justifying the classification under the law. As Justice
McIntyre succinctly states, "the accommodation of differences ... is the essence of true
equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be closely
linked with the unequal power relationship between women and men otherwise known as
"gender-based violence". Societal norms and traditions dictate people to think men are the
leaders, pursuers, providers, and take on dominant roles in society while women are nurturers,
men's companions and supporters, and take on subordinate roles in society. This perception
leads to men gaining more power over women. With power comes the need to control to retain
that power. And VAW is a form of men's expression of controlling women to retain power. 71

The United Nations, which has long recognized VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on December
20, 1993 stating that "violence against women is a manifestation of historically unequal power
relations between men and women, which have led to domination over and discrimination
against women by men and to the prevention of the full advancement of women, and that
violence against women is one of the crucial social mechanisms by which women are forced
into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch
of a family was accorded the right to use force on members of the family under his control. I
quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule
of men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were
under the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent
Blackstone has been quoted in his commentaries as saying husband and wife were one and that
one was the husband. However, in the late 1500s and through the entire 1600s, English
common law began to limit the right of husbands to chastise their wives. Thus, common law
developed the rule of thumb, which allowed husbands to beat their wives with a rod or stick no
thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more
importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to strike
down the common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke
her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that
the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered the evils of
alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed saloons,
bars and their husbands' other watering holes. Soon, however, their crusade was joined by
suffragette movements, expanding the liberation movement's agenda. They fought for
women's right to vote, to own property, and more. Since then, the feminist movement was on
the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into an important public concern. No less than
the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the
victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly
one of every eight husbands had assaulted their wives during the past year. The [American
Medical Association] views these figures as "marked underestimates," because the nature of
these incidents discourages women from reporting them, and because surveys typically exclude
the very poor, those who do not speak English well, and women who are homeless or in
institutions or hospitals when the survey is conducted. According to the AMA, "researchers on
family violence agree that the true incidence of partner violence is probably double the above
estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the
United States, nearly 11,000 women are severely assaulted by their male partners. Many of
these incidents involve sexual assault... In families where wife beating takes place, moreover,
child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible
form of abuse. Psychological abuse, particularly forced social and economic isolation of women,
is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive
no superior alternative...Many abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source of income... Returning to one's
abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8
percent of all homicide victims in the United States are killed by their spouses...Thirty percent
of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all
human beings. In 1979, the UN General Assembly adopted the landmark Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General
Assembly also adopted the Declaration on the Elimination of Violence Against Women. World
conferences on the role and rights of women have been regularly held in Mexico City,
Copenhagen, Nairobi and Beijing. The UN itself established a Commission on the Status of
Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before
the law of women and men. Our Senate has ratified the CEDAW as well as the Convention on
the Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties therefor and for other
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against
women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of
total cases reported (9,903). And for the first semester of 2003, there were 2,381 reported
cases out of 4,354 cases which represent 54.31%. xxx (T)he total number of women in
especially difficult circumstances served by the Department of Social Welfare and Development
(DSWD) for the year 2002, there are 1,417 physically abused/maltreated cases out of the total
of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the
first semester of 2003. Female violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under
R.A. 9262 ranking first among the different VAW categories since its implementation in
2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

1,04
Rape 997 927 659 837 811 770 832
2

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousn 580 536 382 358 445 485 745 625
ess

Physical 3,55 2,33 1,89 1,50 1,30 1,49 2,01

1,588
Injuries 3 5 2 5 7 8 8
 Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28 9,97

RA 9262 218 924 9,021
9 7 9 5 4

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinag
121 102 93 109 109 99 158 128
e

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnappin 16 34 23 28 18 25 22
g 29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,1 12,94

Total
1 4 1 9 5 5 04 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence
against men in the Philippines because incidents thereof are relatively low and, perhaps,
because many men will not even attempt to report the situation. In the United Kingdom, 32% of
women who had ever experienced domestic violence did so four or five (or more) times,
compared with 11% of the smaller number of men who had ever experienced domestic
violence; and women constituted 89% of all those who had experienced 4 or more incidents of
domestic violence.75Statistics in Canada show that spousal violence by a woman against a man
is less likely to cause injury than the other way around (18 percent versus 44 percent). Men,
who experience violence from their spouses are much less likely to live in fear of violence at the
hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of
physical violence by a woman against a spouse are in self-defense or the result of many years of
physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in
the Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by their
vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance
was challenged as violative of the guaranty of equal protection of laws as its application is
limited to owners and drivers of vehicle-drawing animals and not to those animals, although
not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible
and their appearance therein merely occasional, compared to the rig-drawing ones, as not to
constitute a menace to the health of the community." 77 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to equal protection, for
every classification of persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against
women are often treated differently and less seriously than other crimes. This was argued by
then United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the
Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of
the U.S. Congress' authority under the Commerce and Equal Protection Clauses. He stressed
that the widespread gender bias in the U.S. has institutionalized historic prejudices against
victims of rape or domestic violence, subjecting them to "double victimization" – first at the
hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the
prosecutor, the latter is hesitant to file the complaint for fear that it might later be withdrawn.
This lack of response or reluctance to be involved by the police and prosecution reinforces the
escalating, recurring and often serious nature of domestic violence." 80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in
partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and accused her of being motivated
by "insatiable greed" and of absconding with the contested property. 81 Such remarks betrayed
Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific
measures focused on women does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-
bashing," and "hate-men" law deserves scant consideration. As a State Party to the CEDAW, the
Philippines bound itself to take all appropriate measures "to modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women." 84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the character of domestic violence
from a private affair to a public offense will require the development of a distinct mindset on
the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of
Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women
and children and guarantees full respect for human rights. The State also recognizes the need
to protect the family and its members particularly women and children, from violence and
threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women
and children in keeping with the fundamental freedoms guaranteed under the Constitution and
the provisions of the Universal Declaration of Human Rights, the Convention on the Elimination
of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on
August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.86 This Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations on the
basis of equality of men and women.88 The Philippines likewise ratified the Convention on the
Rights of the Child and its two protocols.89 It is, thus, bound by said Conventions and their
respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not
limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or
her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object,
making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force,
threat of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or

emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity.
It includes causing or allowing the victim to witness the physical, sexual or psychological abuse
of a member of the family to which the victim belongs, or to witness pornography in any form
or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse/partner
objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and
enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or
properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women. 90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse
petitioner in his defense. The acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited acts. They are worded with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is
prohibited, and need not guess at its meaning nor differ in its application. 91 Yet, petitioner
insists92that phrases like "depriving or threatening to deprive the woman or her child of a legal
right," "solely controlling the conjugal or common money or properties," "marital infidelity,"
and "causing mental or emotional anguish" are so vague that they make every quarrel a case of
spousal abuse. However, we have stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld – not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly delineated.
An act will not be held invalid merely because it might have been more explicit in its wordings
or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as
the culprit. As defined above, VAWC may likewise be committed "against a woman with whom
the person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral
word "person" who has or had a sexual or dating relationship with the woman encompasses
even lesbian relationships. Moreover, while the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does
not preclude the application of the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
victim, were held to be proper respondents in the case filed by the latter upon the allegation
that they and their son (Go-Tan's husband) had community of design and purpose in
tormenting her by giving her insufficient financial support; harassing and pressuring her to be
ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally
and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all
protections afforded by the due process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to respond, the husband is stripped
of family, property, guns, money, children, job, future employment and reputation, all in a
matter of seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in
their daily life and facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended
party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of violence; to accord the victim and any
designated family or household member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment and support of the victim. It
also enables the court to award temporary custody of minor children to protect the children
from violence, to prevent their abduction by the perpetrator and to ensure their financial
support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein.
Since "time is of the essence in cases of VAWC if further violence is to be prevented," 99 the
court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the
life, limb or property of the victim is in jeopardy and there is reasonable ground to believe that
the order is necessary to protect the victim from the immediate and imminent danger of VAWC
or to prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order.
The victim is required not only to verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and hearing
because the time in which the hearing will take could be enough to enable the defendant to
abscond or dispose of his property,102 in the same way, the victim of VAWC may already have
suffered harrowing experiences in the hands of her tormentor, and possibly even death, if
notice and hearing were required before such acts could be prevented. It is a constitutional
commonplace that the ordinary requirements of procedural due process must yield to the
necessities of protecting vital public interests,103among which is protection of women and
children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order
that notice be immediately given to the respondent directing him to file an opposition within
five (5) days from service. Moreover, the court shall order that notice, copies of the petition
and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially
effective for thirty (30) days from service on the respondent. 104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition
within five (5) days from service. The date of the preliminary conference and hearing on the
merits shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify, must be accompanied
by the affidavits of witnesses and shall show cause why a temporary or permanent protection
order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should
be apprised of the charges imputed to him and afforded an opportunity to present his side.
Thus, the fear of petitioner of being "stripped of family, property, guns, money, children, job,
future employment and reputation, all in a matter of seconds, without an inkling of what
happened" is a mere product of an overactive imagination. The essence of due process is to be
found in the reasonable opportunity to be heard and submit any evidence one may have in
support of one's defense. "To be heard" does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006.
Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow
him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not be renewed or
extended. Yet, he chose not to file the required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the renewal of the questioned TPO was only
for a limited period (30 days) each time, and that he could prevent the continued renewal of
said order if he can show sufficient cause therefor. Having failed to do so, petitioner may not
now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case
from the residence of the victim, regardless of ownership of the residence, is virtually a "blank
check" issued to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest
that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some
or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of protecting the
offended party, or permanently where no property rights are violated. If the respondent must
remove personal effects from the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the respondent has gathered
his things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal
and exclusion may be permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself, as petitioner seems to
suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging

mediation and counseling, the law has done violence to the avowed policy of the State to
"protect and strengthen the family as a basic autonomous social institution." 109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue
thereof to a mediator. The reason behind this provision is well-explained by the Commentary
on Section 311 of the Model Code on Domestic and Family Violence as follows: 110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for
an order for protection. Mediation is a process by which parties in equivalent bargaining
positions voluntarily reach consensual agreement about the issue at hand. Violence, however,
is not a subject for compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because the petitioner is frequently unable
to participate equally with the person against whom the protection order has been sought.
(Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under
the Constitution, is placed upon the "Supreme Court and such other lower courts as may be
established by law" and, thus, protests the delegation of power to barangay officials to issue
protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the
perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act.1âwphi1 A
Punong Barangay who receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the application. If the
Punong Barangay is unavailable to act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad,
the order must be accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for
fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the
Punong Barangay.

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.112 On the other hand, executive power "is
generally defined as the power to enforce and administer the laws. It is the power of carrying
the laws into practical operation and enforcing their due observance." 113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or,
in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to
desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause
the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature, in pursuance of his duty under the Local Government Code to "enforce all
laws and ordinances," and to "maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the
existence of certain facts and to apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect private rights do not constitute an
exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to believe that an offense has been committed
and the accused is probably guilty thereof," the Punong Barangay must determine reasonable
ground to believe that an imminent danger of violence against the woman and her children
exists or is about to recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an executive, not a judicial, function.
The same holds true with the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay officials and other
law enforcement agencies are required to extend assistance to victims of violence and abuse, it
would be very unlikely that they would remain objective and impartial, and that the chances of
acquittal are nil. As already stated, assistance by barangay officials and other law enforcement
agencies is consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a
clear conflict with the Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of the Court. In other words,
the grounds for nullity must be beyond reasonable doubt.116 In the instant case, however, no
concrete evidence and convincing arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262, which is an act of Congress and signed into
law by the highest officer of the co-equal executive department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and
edges of its plenary powers, and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement
against domestic violence shows that one of its most difficult struggles was the fight against the
violence of law itself. If we keep that in mind, law will not again be a hindrance to the struggle
of women for equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A.
9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

G.R. No. 180016               April 29, 2014

LITO CORPUZ, Petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside
the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of
Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the
Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private complainant was then engaged in the business of
lending money to casino players and, upon hearing that the former had some pieces of jewelry
for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the
said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence,
he turned over to petitioner the following items: an 18k diamond ring for men; a woman's
bracelet; one (1) men's necklace and another men's bracelet, with an aggregate value of
₱98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall remit
the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days.
The period expired without petitioner remitting the proceeds of the sale or returning the pieces
of jewelry. When private complainant was able to meet petitioner, the latter promised the
former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, after having received from
one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht
men's bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine
currency, under expressed obligation on the part of said accused to remit the proceeds of the
sale of the said items or to return the same, if not sold, said accused, once in possession of the
said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far
from complying with his aforestated obligation, did then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the
accused failed and refused to return the said items or to remit the amount of Ninety- Eight
Thousand Pesos (₱98,000.00), Philippine currency, to the damage and prejudice of said Danilo
Tangcoy in the aforementioned amount.

CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo
Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can
be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged
in the financing business of extending loans to Base employees. For every collection made, they
earn a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was
made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and
used as evidence against him for the supposed agreement to sell the subject pieces of jewelry,
which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty
consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND
TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN
(14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of ₱98,000.00 as
actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and
affirmed the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4
years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years. The rest of the
decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS,
WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE
SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE
IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05

JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL,

CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the
following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are
totally devoid of support in the records, or that they are so glaringly erroneous as to constitute
grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual
findings of the trial court. He now comes to this Court raising both procedural and substantive
issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in
evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the
same was merely a photocopy, thus, violating the best evidence rule. However, the records
show that petitioner never objected to the admissibility of the said evidence at the time it was
identified, marked and testified upon in court by private complainant. The CA also correctly
pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's
formal offer of evidence and even admitted having signed the said receipt. The established
doctrine is that when a party failed to interpose a timely objection to evidence at the time they
were offered in evidence, such objection shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information
filed against him. He contends that the Information does not contain the period when the
pieces of jewelry were supposed to be returned and that the date when the crime occurred was
different from the one testified to by private complainant. This argument is untenable. The CA
did not err in finding that the Information was substantially complete and in reiterating that
objections as to the matters of form and substance in the Information cannot be made for the
first time on appeal. It is true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or
property received to the prejudice of the owner6 and that the time of occurrence is not a
material ingredient of the crime, hence, the exclusion of the period and the wrong date of the
occurrence of the crime, as reflected in the Information, do not make the latter fatally
defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory designation of
the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules
of Court provides that a complaint or information is sufficient if it states the name of the
accused;

the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of the
commission of the offense, and the place wherein the offense was committed. In the case at
bar, a reading of the subject Information shows compliance with the foregoing rule. That the
time of the commission of the offense was stated as " on or about the fifth (5th) day of July,
1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same
Rule requires a statement of the precise time only when the same is a material ingredient of
the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the
Revised Penal Code (RPC) is the appropriation or conversion of money or property received to
the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof
is not an essential element of the crime herein charged, the failure of the prosecution to specify
the exact date does not render the Information ipso facto defective. Moreover, the said date is
also near the due date within which accused-appellant should have delivered the proceeds or
returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient
compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that
he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration,
or under any other obligation involving the duty to make delivery of, or to return the same; (b)
that there be misappropriation or conversion of such money or property by the offender or
denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to
the prejudice of another; and (d) that there is a demand made by the offended party on the
offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party
on the offender, was not proved. This Court disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner after almost two (2) months from the time he
gave the pieces of jewelry and asked petitioner about the same items with the latter promising
to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are
and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand. 10 Demand need not even
be formal; it may be verbal.11 The specific word "demand" need not even be used to show that
it has indeed been made upon the person charged, since even a mere query as to the
whereabouts of the money [in this case, property], would be tantamount to a demand.12 As
expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of
estafa need not be formal or written. The appellate court observed that the law is silent with
regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary,
the law would have stated so. Otherwise, the word "demand" should be interpreted in its
general meaning as to include both written and oral demand. Thus, the failure of the
prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted
to the accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the
crime of embezzlement. It so happens only that failure to account, upon demand for funds or
property held in trust, is circumstantial evidence of misappropriation. The same way, however,
be established by other proof, such as that introduced in the case at bar. 14

In view of the foregoing and based on the records, the prosecution was able to prove the
existence of all the elements of the crime. Private complainant gave petitioner the pieces of
jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty (60) days, if unsold. There was
misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold,
or if no sale took place, failed to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the
same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this
Court gives great respect to the evaluation of the trial court for it had the unique opportunity to
observe the demeanor of witnesses and their deportment on the witness stand, an opportunity
denied the appellate courts, which merely rely on the records of the case.15 The assessment by
the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of
some fact or circumstance of weight and influence, especially when such finding is affirmed by
the CA.16 Truth is established not by the number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility of evidence, the witnesses are to be
weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the
question of the continued validity of imposing on persons convicted of crimes involving
property came up. The legislature apparently pegged these penalties to the value of the money
and property in 1930 when it enacted the Revised Penal Code. Since the members of the
division reached no unanimity on this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and resolution. Thus, several
amici curiae were invited at the behest of the Court to give their academic opinions on the
matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey
M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House
of Representatives. The parties were later heard on oral arguments before the Court en banc,
with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of
damage measured by the value of money eighty years ago in 1932. However, this Court cannot
modify the said range of penalties because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for in the said crimes cannot
be remedied through this Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the whole situation without
any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC)
had anticipated this matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of
any act which it may deem proper to repress and which is not punishable by law, it shall render
the proper decision, and shall report to the Chief Executive, through the Department of Justice,
the reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the degree of malice and the
injury caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which
is not punishable by law and the court finds it proper to repress, the remedy is to render the
proper decision and thereafter, report to the Chief Executive, through the Department of
Justice, the reasons why the same act should be the subject of penal legislation. The premise
here is that a deplorable act is present but is not the subject of any penal legislation, thus, the
court is tasked to inform the Chief Executive of the need to make that act punishable by law
through legislation. The second paragraph is similar to the first except for the situation wherein
the act is already punishable by law but the corresponding penalty is deemed by the court as
excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the
sentence but to submit to the Chief Executive the reasons why the court considers the said
penalty to be non-commensurate with the act committed. Again, the court is tasked to inform
the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in
Article 5, the duty of the court is merely to report to the Chief Executive, with a
recommendation for an amendment or modification of the legal provisions which it believes to
be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is,
that there can exist no punishable act except those previously and specifically provided for by
penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to
prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to
punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on
the ground that the strict enforcement of the provisions of this Code would cause excessive or
harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief
Executive with a recommendation for an amendment or modification of the legal provisions
which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C.
Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must
be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness
of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction
of violations of particular statutes are too severe or are not severe enough, are questions as to
which commentators on the law may fairly differ; but it is the duty of the courts to enforce the
will of the legislator in all cases unless it clearly appears that a given penalty falls within the
prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency
should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the
current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be
dangerous as this would result in uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy fluctuates and if the proposed imposition
of the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so,
it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It
is also improper to presume why the present legislature has not made any moves to amend the
subject penalties in order to conform with the present times. For all we know, the legislature
intends to retain the same penalties in order to deter the further commission of those
punishable acts which have increased tremendously through the years. In fact, in recent moves
of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal
laws. In the crime of Plunder, from its original minimum amount of ₱100,000,000.00 plundered,
the legislature lowered it to ₱50,000,000.00. In the same way, the legislature lowered the
threshold amount upon which the Anti-Money Laundering Act may apply, from ₱1,000,000.00
to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem
to be excessive compared to the proposed imposition of their corresponding penalties. In Theft,
the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total
of the penalty which may be imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value
of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of
the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the
thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger,
poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4
years and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the
penalty is imprisonment of arresto mayor in its medium period to prision correccional minimum
period (2 months and 1 day to 2 years and 4 months). It would seem that under the present
law, the penalty imposed is almost the same as the penalty proposed. In fact, after the
application of the Indeterminate Sentence Law under the existing law, the minimum penalty is
still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium period
to maximum period (2 months and 1 day to 6 months), making the offender qualified for
pardon or parole after serving the said minimum period and may even apply for probation.
Moreover, under the proposal, the minimum penalty after applying the Indeterminate
Sentence Law is arresto menor in its maximum period to arresto mayor in its minimum period
(21 days to 2 months) is not too far from the minimum period under the existing law. Thus, it
would seem that the present penalty imposed under the law is not at all excessive. The same is
also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the
crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis of determining the proper penalty to be
imposed, would be too wide and the penalty imposable would no longer be commensurate to
the act committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the
penalties are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by prision

mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision

correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6
years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor

medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month
and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by

prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8
years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by prision
correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto

mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4
months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and 1
day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that
the incremental penalty provided under Article 315 of the RPC violates the Equal Protection
Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving
higher amounts would receive heavier penalties; however, this is no longer achieved, because a
person who steals ₱142,000.00 would receive the same penalty as someone who steals
hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions at the time the law was promulgated,
conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is
the penalty that should be applied in case the amount of the thing subject matter of the crime
exceeds ₱22,000.00? It seems that the proposition poses more questions than answers, which
leads us even more to conclude that the appropriate remedy is to refer these matters to
Congress for them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the
remedy is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-
Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you
right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...
DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix
the amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:
... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting
cruel and unusual punishment, to the duration of the penalty, and not just its form. The court
therein ruled that three things must be done to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the same penalty or to less serious penalties; and
(3) Compare the sentences imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem
what respondent therein deemed cruel was the penalty imposed by the state court of South
Dakota after it took into account the latter’s recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the maximum punishment for the crime would have
been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to
life imprisonment without the possibility of parole under South Dakota’s recidivist statute
because of his six prior felony convictions. Surely, the factual antecedents of Solem are
different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for
the offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a
domestic servant is the fact that in the commission of the crime, the helper will essentially
gravely abuse the trust and confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting upon such person the
protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal
of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the
subject matter of the crime and which, by adopting the proposal, may create serious
implications. For example, in the crime of Malversation, the penalty imposed depends on the
amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public
officer who, by reason of the duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve thousand
pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total
value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence
that he has put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the
acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically Section 3, 31 wherein the injury caused to the
government is not generally defined by any monetary amount, the penalty (6 years and 1
month to 15 years)32 under the Anti-Graft Law will now become higher. This should not be the
case, because in the crime of malversation, the public official takes advantage of his public
position to embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are
the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the
thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be
the value of the thing unlawfully taken and no longer the element of force employed in
entering the premises. It may likewise cause an inequity between the crime of Qualified
Trespass to Dwelling under Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum periods (2 years, 4 months and
1 day to 6 years) and a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100)
where entrance to the premises is with violence or intimidation, which is the main justification
of the penalty. Whereas in the crime of Robbery with force upon things, it is punished with a
penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the
penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6
months) if the value of the damage caused exceeds ₱1,000.00, but under the proposal, the
value of the damage will now become ₱100,000.00 (1:100), and still punishable by arresto
mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the damage
caused and not more than ₱200.00, if the amount involved does not exceed ₱200.00 or cannot
be estimated. Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means
that the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount of
Fine under this situation will now become excessive and afflictive in nature despite the fact that
the offense is categorized as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the
penalty of Fine, but changing the same through Court decision, either expressly or impliedly,
may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by
the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the
value of the damage caused, to wit: Article 311 (Theft of the property of the National Library
and National Museum), Article 312 (Occupation of real property or usurpation of real rights in
property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases
of malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213
(Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of
accountable officer to render accounts), Article 219 (Failure of a responsible public officer to
render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes
which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of
Presidential Decree No. 705, as amended.34The law treats cutting, gathering, collecting and
possessing timber or other forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means
that the penalty imposable for the offense is, again, based on the value of the timber or forest
products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will
this particular crime of Illegal Logging be amended also in so far as the penalty is concerned
because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the
negative because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and Special
Laws, and other related provisions of these laws affected by the proposal, a thorough study is
needed to determine its effectivity and necessity. There may be some provisions of the law that
should be amended; nevertheless, this Court is in no position to conclude as to the intentions of
the framers of the Revised Penal Code by merely making a study of the applicability of the
penalties imposable in the present times. Such is not within the competence of the Court but of
the Legislature which is empowered to conduct public hearings on the matter, consult legal
luminaries and who, after due proceedings, can decide whether or not to amend or to revise
the questioned law or other laws, or even create a new legislation which will adopt to the
times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six
(56) bills are now pending in the Senate seeking to amend the Revised Penal Code, 37 each one
proposing much needed change and updates to archaic laws that were promulgated decades
ago when the political, socio-economic, and cultural settings were far different from today’s
conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not
usurp legislative powers by judicial legislation and that in the course of such application or
construction, it should not make or supervise legislation, or under the guise of interpretation,
modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction
which is repugnant to its terms.38 The Court should apply the law in a manner that would give
effect to their letter and spirit, especially when the law is clear as to its intent and purpose.
Succinctly put, the Court should shy away from encroaching upon the primary function of a co-
equal branch of the Government; otherwise, this would lead to an inexcusable breach of the
doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it
can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed
and awarded by the court, unless the deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary
restitution or compensation to the victim for the damage or infraction that was done to the
latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly,
this award of civil indemnity due to the death of the victim could not be contemplated as akin
to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper
penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded
in some offense cannot be the same reasoning that would sustain the adoption of the
suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum
amount for awards of civil indemnity, which is ₱3,000.00. The law did not provide for a ceiling.
Thus, although the minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the present
circumstance warrants it. Corollarily, moral damages under Article 2220 39 of the Civil Code also
does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of
moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the
award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as
tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in
nature. Whether or not they are excessive or amount to cruel punishment is a matter that
should be left to lawmakers. It is the prerogative of the courts to apply the law, especially when
they are clear and not subject to any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should
only impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual
amount involved exceeds ₱22,000.00. As suggested, however, from now until the law is
properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when
every accused convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the application of the law has no
legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal
justice by the Ramos Administration by virtue of Republic Act No. 7659 40 in December 1993. The
said law has been questioned before this Court. There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the death penalty was re-imposed until its lifting in
June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death
penalty on the ground that it is a "cruel punishment" within the purview of Section 19
(1),42 Article III of the Constitution. Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition and not via the intervention of
the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the
provision of the law from which the proper penalty emanates unconstitutional in the present
action. Not only is it violative of due process, considering that the State and the concerned
parties were not given the opportunity to comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked collaterally because constitutionality issues
must be pleaded directly and not collaterally,43 more so in the present controversy wherein the
issues never touched upon the constitutionality of any of the provisions of the Revised Penal
Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is
generally aimed at the form or character of the punishment rather than its severity in respect of
duration or amount, and applies to punishments which public sentiment has regarded as cruel
or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to
be obnoxious to the Constitution. The fact that the punishment authorized by the statute is
severe does not make it cruel and unusual. Expressed in other terms, it has been held that to
come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to
our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There
are other factors and variables that need to be taken into consideration, researched, and
deliberated upon before the said values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio-economic impact, and the likes must be
painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us
believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no
resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and
surveys to validly effect these changes in our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you
have to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined utilizing all
of those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to
One Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the
adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that
the role of the Court is not merely to dispense justice, but also the active duty to prevent
injustice. Thus, in order to prevent injustice in the present controversy, the Court should not
impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of
1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in
crimes against persons, which the Court had previously adjusted in light of current times, like in
the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption
that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being
repetitious and as extensively discussed above, it is truly beyond the powers of the Court to
legislate laws, such immense power belongs to Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly
based on the value of money. The same cannot be said on penalties because, as earlier stated,
penalties are not only based on the value of money, but on several other factors. Further, since
the law is silent as to the maximum amount that can be awarded and only pegged the
minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can
be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the
RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal in its minimum period, as maximum. However, the CA imposed the
indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional
₱10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People 48 is
highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. In such case, and in connection with the
accessory penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which
case, Article 65 of the same Code requires the division of the time included in the penalty into
three equal portions of time included in the penalty prescribed, forming one period of each of
the three portions. Applying the latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to
prisión mayor minimum should be divided into three equal portions of time each of which
portion shall be deemed to form one period in accordance with Article 65 50 of the RPC.51 In the
present case, the amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the
maximum penalty imposable should be within the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added
to the penalty for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no
case shall the total penalty which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set
by law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor minimum would be increased by 7 years.
Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the
maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa
charge against petitioner is prision correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months
and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of
lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of making
and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is
a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution
dated September 5, 2007 of the Court of Appeals, which affirmed with modification the
Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph
(1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION
that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN
(15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

EN BANC
[ G.R. No. 180771, April 21, 2015 ]
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE
TANON STRAIT, E.G., TOOTHED WHALES, DOLPHINS,
PORPOISES, AND OTHER CETACEAN SPECIES, JOINED IN
AND REPRESENTED HEREIN BY HUMAN BEINGS GLORIA
ESTENZO RAMOS AND ROSE-LIZA EISMA-OSORIO, IN THEIR
CAPACITY AS LEGAL GUARDIANS OF THE LESSER LIFE-
FORMS AND AS RESPONSIBLE STEWARDS OF GOD'S
CREATIONS, PETITIONERS, VS. SECRETARY ANGELO REYES,
IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
ENERGY (DOE), SECRETARY JOSE L. ATIENZA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES (DENR),
LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTOR-
REGION VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE
TANON STRAIT PROTECTED SEASCAPE MANAGEMENT
BOARD, BUREAU OF FISHERIES AND AQUATIC RESOURCES
(BFAR), DIRECTOR MALCOLM I. SARMIENTO, JR., BFAR
REGIONAL DIRECTOR FOR REGION VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS
REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD
SERVICES, INC. RESPONDENTS.

[G.R. No. 181527]

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER

(FIDEC), CERILO D. ENGARCIAL, RAMON YANONG,
FRANCISCO LABID, IN THEIR PERSONAL CAPACITY AND AS
REPRESENTATIVES OF THE SUBSISTENCE FISHERFOLKS OF
THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE
PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE
RIGHTS ARE SIMILARLY AFFECTED, PETITIONERS, VS.
SECRETARY ANGELO REYES, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), JOSE L.
ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), LEONARDO R. SIBBALUCA, IN HIS CAPACITY AS
DENR REGIONAL DIRECTOR-REGION VII AND AS
CHAIRPERSON OF THE TAÑON STRAIT PROTECTED SEASCAPE
MANAGEMENT BOARD, ALAN ARRANGUEZ, IN HIS CAPACITY
AS DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAU-
REGION VII, DOE REGIONAL DIRECTOR FOR REGION
VIII[1] ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION
 CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE
AGENT, SUPPLY OILFIELD SERVICES, INC., RESPONDENTS.

DECISION

LEONARDO-DE CASTRO, J.: 

Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of
Court, concerning Service Contract No. 46 (SC-46), which allowed the
exploration, development, and exploitation of petroleum resources within Tañon
Strait, a narrow passage of water situated between the islands of Negros and Cebu.
[2]

The Petition docketed as G.R. No. 180771 is an original Petition

for Certiorari, Mandamus, and Injunction, which seeks to enjoin respondents from
implementing SC-46 and to have it nullified for willful and gross violation of the
1987 Constitution and certain international and municipal laws.[3]

Likewise, the Petition docketed as G.R. No. 181527 is an original Petition

for Certiorari, Prohibition, and Mandamus, which seeks to nullify the Environmental
Compliance Certificate (ECC) issued by the Environmental Management Bureau
(EMB) of the Department of Environment and Natural Resources (DENR), Region
VII in connection with SC-46; to prohibit respondents from implementing SC-46;
and to compel public respondents to provide petitioners access to the pertinent
documents involving the Tañon Strait Oil Exploration Project.[4]

ANTECEDENT FACTS AND PROCEEDINGS

Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine

Mammals" in the petition, are the toothed whales, dolphins, porpoises, and other
cetacean species, which inhabit the waters in and around the Tañon Strait. They are
joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-
Osorio) as their legal guardians and as friends (to be collectively known as "the
Stewards") who allegedly empathize with, and seek the protection of, the
aforementioned marine species. Also impleaded as an unwilling co-petitioner is
former President Gloria Macapagal-Arroyo, for her express declaration and
undertaking in the ASEAN Charter to protect the Tañon Strait, among others.[5]

Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development
Center (FIDEC), a non-stock, non-profit, non-governmental organization,
established for the welfare of the marginal fisherfolk in Region VII; and Cerilo D.
Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco Labid (Labid), in their
personal capacities and as representatives of the subsistence fisherfolk of the
municipalities of Aloguinsan and Pinamungajan, Cebu.

Named as respondents in both petitions are the late Angelo T. Reyes, as then
Secretary of the Department of Energy (DOE); Jose L. Atienza, as then Secretary of
the DENR; Leonardo R. Sibbaluca, as then DENR-Regional Director for Region VII
and Chairman of the Tañon Strait Protected Seascape Management Board; Japan
Petroleum Exploration Co., Ltd. (JAPEX), a company organized and existing under
the laws of Japan with a Philippine branch office; and Supply Oilfield Services, Inc.
(SOS), as the alleged Philippine agent of JAPEX.

In G.R. No. 181527, the following were impleaded as additional public respondents:
Alan C. Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as
then Director of the EMB, Region VII and then Regional Director of the DOE, Region
VII, respectively.[6]

On June 13, 2002, the Government of the Philippines, acting through the DOE,
entered into a Geophysical Survey and Exploration Contract-102 (GSEC-102) with
JAPEX. This contract involved geological and geophysical studies of the Tañon
Strait. The studies included surface geology, sample analysis, and reprocessing of
seismic and magnetic data. JAPEX, assisted by DOE, also conducted geophysical
and satellite surveys, as well as oil and gas sampling in Tañon Strait.[7]

On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46
for the exploration, development, and production of petroleum resources in a block
covering approximately 2,850 square kilometers offshore the Tañon Strait.[8]

From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon
Strait. A multi-channel sub-bottom profiling covering approximately 751 kilometers
was also done to determine the area's underwater composition.[9]

JAPEX committed to drill one exploration well during the second sub-phase of the
project. Since the well was to be drilled in the marine waters of Aloguinsan and
Pinamungajan, where the Tañon Strait was declared a protected seascape in 1988,
[10]
 JAPEX agreed to comply with the Environmental Impact Assessment
requirements pursuant to Presidential Decree No. 1586, entitled "Establishing An
Environmental Impact Statement System, Including Other Environmental
Management Related Measures And For Other Purposes."[11]

On January 31, 2007, the Protected Area Management Board[12] of the Tañon Strait
(PAMB-Tañon Strait) issued Resolution No. 2007-001,[13] wherein it adopted the
Initial Environmental Examination (IEE) commissioned by JAPEX, and favorably
recommended the approval of JAPEX's application for an ECC.

On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and
JAPEX for the offshore oil and gas exploration project in Tañon Strait.[14] Months
later, on November 16, 2007, JAPEX began to drill an exploratory well, with a depth
of 3,150 meters, near Pinamungajan town in the western Cebu Province.[15] This
drilling lasted until February 8, 2008.[16]

It was in view of the foregoing state of affairs that petitioners applied to this Court
for redress, via two separate original petitions both dated December 17, 2007,
wherein they commonly seek that respondents be enjoined from implementing SC-
46 for, among others, violation of the 1987 Constitution.

On March 31, 2008, SOS filed a Motion to Strike[17] its name as a respondent on the
ground that it is not the Philippine agent of JAPEX. In support of its motion, it
submitted the branch office application of JAPEX,[18] wherein the latter's resident
agent was clearly identified. SOS claimed that it had acted as a mere logistics
contractor for JAPEX in its oil and gas exploration activities in the Philippines.

Petitioners Resident Marine Mammals and Stewards opposed SOS's motion on the
ground that it was premature, it was pro-forma, and it was patently dilatory. They
claimed that SOS admitted that "it is in law a (sic) privy to JAPEX" since it did the
drilling and other exploration activities in Tañon Strait under the instructions of its
principal, JAPEX. They argued that it would be premature to drop SOS as a party as
JAPEX had not yet been joined in the case; and that it was "convenient" for SOS to
ask the Court to simply drop its name from the parties when what it should have
done was to either notify or ask JAPEX to join it in its motion to enable proper
substitution. At this juncture, petitioners Resident Marine Mammals and Stewards
also asked the Court to implead JAPEX Philippines as a corespondent or as a
substitute for its parent company, JAPEX.[19]

On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No.

181527.

On May 26, 2008, the FIDEC manifested[20] that they were adopting in toto the
Opposition to Strike with Motion to Implead filed by petitioners Resident Marine
Mammals and Stewards in G.R. No. 180771.

On June 19, 2008, public respondents filed their Manifestation[21] that they were not
objecting to SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX
during all this time, did not file any comment at all.

Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties
were given ample chance and opportunity to answer the issues herein, issued a
Resolution directing the Court's process servicing unit to again serve the parties
with a copy of the September 23, 2008 Resolution of the Court, which gave due
course to the petitions in G.R. Nos. 180771 and 181527, and which required the
parties to submit their respective memoranda. The February 7, 2012
Resolution[22] reads as follows:
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Tañon
Strait, e.g., Toothed Whales, Dolphins, Porpoises and Other Cetacean Species, et
al. vs. Hon. Angelo Reyes, in his capacity as Secretary of the Department of
Energy, et al.) and G.R. No. 181527 (Central Visayas Fisherfolk Development
Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the
Process Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the
following parties and counsel, together with this resolution:
Atty. Aristeo O.
20th Floor Pearlbank Centre
Cariño
Counsel for
Respondent 146 Valero Street
Supply
Oilfield Services,
Salcedo Village, Makati City
Inc.
   
JAPEX
20th Floor Pearlbank Centre
Philippines Ltd.
  146 Valero Street
  Salcedo Village, Makati City
   
JAPEX
19th Floor Pearlbank Centre
Philippines Ltd.
c/o Atty. Maria
146 Valero Street
Farah Z.G.
Nicolas-Suchianco Salcedo Village, Makati City
   
Atty. Maria
Suite 2404 Discovery Centre
Farah Z.G.
Nicolas-
25 ADB Avenue
Suchianco
Resident Agent of
Ortigas Center, Pasig City
JAPEX
Philippines Ltd.  
This Resolution was personally served to the above parties, at the above addresses
on February 23, 2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by
way of special appearance, filed a Motion to Admit[23] its Motion for Clarification,
[24]
 wherein JAPEX PH requested to be clarified as to whether or not it should deem
the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as
it has not been impleaded. It also alleged that JAPEX PH had already stopped
exploration activities in the Tañon Strait way back in 2008, rendering this case
moot.

On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for
Extension of Time[25] to file its Memorandum. It stated that since it received the
February 7, 2012 Resolution on February 23, 2012, it had until March 22, 2012 to
file its Memorandum. JAPEX PH then asked for an additional thirty days, supposedly
to give this Court some time to consider its Motion for Clarification.

On April 24, 2012, this Court issued a Resolution[26] granting JAPEX PH's Motion to
Admit its Motion for Clarification. This Court, addressing JAPEX PH's Motion for
Clarification, held:
With regard to its Motion for Clarification (By Special Appearance) dated March 19,
2012, this Court considers JAPEX Philippines. Ltd. as a real party-in-interest in
these cases. Under Section 2, Rule 3 of the 1997 Rules of Court, a real party-in-
interest is the party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit. Contrary to JAPEX Philippines,
Ltd.'s allegation that it is a completely distinct corporation, which should not be
confused with JAPEX Company, Ltd., JAPEX Philippines, Ltd. is a mere branch office,
established by JAPEX Company, Ltd. for the purpose of carrying out the latter's
business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no
separate personality from its mother foreign corporation, the party impleaded in
this case.

Moreover, Section 128 of the Corporation Code provides for the responsibilities and
duties of a resident agent of a foreign corporation:
SECTION 128. Resident agent; service of process. — The Securities and Exchange
Commission shall require as a condition precedent to the issuance of the license to
transact business in the Philippines by any foreign corporation that such corporation
file with the Securities and Exchange Commission a written power of attorney
designating some person who must be a resident of the Philippines, on whom any
summons and other legal processes may be served in all actions or other legal
proceedings against such corporation, and consenting that service upon such
resident agent shall be admitted and held as valid as if served upon the duly
authorized officers of the foreign corporation at its home office. Any such foreign
corporation shall likewise execute and file with the Securities and Exchange
Commission an agreement or stipulation, executed by the proper authorities of said
corporation, in form and substance as follows:

"The (name of foreign corporation) does hereby stipulate and agree, in

consideration of its being granted by the Securities and Exchange Commission a
license to transact business in the Philippines, that if at any time said corporation
shall cease to transact business in the Philippines, or shall be without any resident
agent in the Philippines on whom any summons or other legal processes may be
served, then in any action or proceeding arising out of any business or transaction
which occurred in the Philippines, service of any summons or other legal process
may be made upon the Securities and Exchange Commission and that such service
shall have the same force and effect as if made upon the duly-authorized officers of
the corporation at its home office."

Whenever such service of summons or other process shall be made upon the
Securities and Exchange Commission, the Commission shall, within ten (10) days
thereafter, transmit by mail a copy of such summons or other legal process to the
corporation at its home or principal office. The sending of such copy by the
Commission shall be a necessary part of and shall complete such service. All
expenses incurred by the Commission for such service shall be paid in advance by
the party at whose instance the service is made.

In case of a change of address of the resident agent, it shall be his or its duty to
immediately notify in writing the Securities and Exchange Commission of the new
address.
It is clear from the foregoing provision that the function of a resident agent is to
receive summons or legal processes that may be served in all actions or other legal
proceedings against the foreign corporation. These cases have been prosecuted in
the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its branch office
and resident agent, had been receiving the various resolutions from this Court, as
evidenced by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for
extension of time to file its memorandum, and was given until April 21, 2012, as
prayed for, within which to comply with the submission.[27]

Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking
this Court for an additional thirty days to file its Memorandum, to be counted from
May 8, 2012. It justified its request by claiming that this Court's April 24, 2012
Resolution was issued past its requested deadline for filing, which was on April 21,
2012.[28]

On June 19, 2012, this Court denied JAPEX PH's second request for additional time
to file its Memorandum and dispensed with such filing.

Since petitioners had already filed their respective memoranda,[29] and public

respondents had earlier filed a Manifestation[30] that they were adopting their
Comment dated March 31, 2008 as their memorandum, this Court submitted the
case for decision.

Petitioners' Allegations

Protesting the adverse ecological impact of JAPEX's oil exploration activities in the
Tañon Strait, petitioners Resident Marine Mammals and Stewards aver that a study
made after the seismic survey showed that the fish catch was reduced drastically
by 50 to 70 percent. They claim that before the seismic survey, the average
harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk
could only catch an average of 1 to 2 kilos a day. They attribute this "reduced fish
catch" to the destruction of the "payao" also known as the "fish aggregating device"
or "artificial reef."[31] Petitioners Resident Marine Mammals and Stewards also
impute the incidences of "fish kill"[32]observed by some of the local fisherfolk to the
seismic survey. And they further allege that the ECC obtained by private
respondent JAPEX is invalid because public consultations and discussions with the
affected stakeholders, a pre-requisite to the issuance of the ECC, were not held
prior to the ECC's issuance.

In its separate petition, petitioner FIDEC confirms petitioners Resident Marine

Mammals and Stewards' allegations of reduced fish catch and lack of public
consultations or discussions with the fisherfolk and other stakeholders prior to the
issuance of the ECC. Moreover, it alleges that during the seismic surveys and
drilling, it was barred from entering and fishing within a 7-kilometer radius from the
point where the oilrig was located, an area greater than the 1.5-kilometer radius
"exclusion zone" stated in the IEE.[33] It also agrees in the allegation that public
respondents DENR and EMB abused their discretion when they issued an ECC to
public respondent DOE and private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive requirements under the
Environmental Impact Assessment system, the Fisheries Code, and their
implementing rules and regulations.[34] It further claims that despite several
requests for copies of all the documents pertaining to the project in Taflon Strait,
only copies of the PAMB-Tañon Strait Resolution and the ECC were given to the
fisherfolk.[35]

Public Respondents' Counter-Allegations

Public respondents, through the Solicitor General, contend that petitioners Resident
Marine Mammals and Stewards have no legal standing to file the present petition;
that SC-46 does not violate the 1987 Constitution and the various laws cited in the
petitions; that the ECC was issued in accordance with existing laws and regulations;
that public respondents may not be compelled by mandamus to furnish petitioners
copies of all documents relating to SC-46; and that all the petitioners failed to show
that they are entitled to injunctive relief. They further contend that the issues
raised in these petitions have been rendered moot and academic by the fact that
SC-46 had been mutually terminated by the parties thereto effective June 21,
2008.[36]

ISSUES

The following are the issues posited by petitioners Resident Marine Mammals and
Stewards in G.R. No. 180771:

I. WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE

INSTANT PETITION;

II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987

PHILIPPINE CONSTITUTION AND STATUTES;

III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED

EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH
THE MARINE WATERS OF THE TANON STRAIT PROTECTED SEASCAPE IS
INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL
ENVIRONMENTAL LAWS AND INSTRUMENTS; AND

IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS
OF MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER.[37]

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for
our consideration:

I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN

RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR
BEING IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE 1987
PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;

II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED

UNDER SERVICE CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A
LAW BEING DULY PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE
TANON STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL
PROTECTION GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND
APPLICABLE LAWS.

IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT
INSIDE AN ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TANON STRAIT
PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND
REGULATIONS ON THE MATTER.

V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS

TO FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING
TO THE TANON STRAIT OIL EXPLORATION PROJECT.[38]

In these consolidated petitions, this Court has determined that the various issues
raised by the petitioners may be condensed into two primary issues:

I. Procedural Issue: Locus Standi of the Resident Marine Mammals and

Stewards, petitioners in G.R. No. 180771; and

II. Main Issue: Legality of Sendee Contract No. 46.

DISCUSSION

At the outset, this Court makes clear that the '"moot and academic principle' is not
a magical formula that can automatically dissuade the courts in resolving a case."
Courts have decided cases otherwise moot and academic under the following
exceptions:

1) There is a grave violation of the Constitution;

2) The exceptional character of the situation and the paramount public interest is
involved;

3) The constitutional issue raised requires formulation of controlling principles to

guide the bench, the bar, and the public; and

4) The case is capable of repetition yet evading review.[39]

In this case, despite the termination of SC-46, this Court deems it necessary to
resolve these consolidated petitions as almost all of the foregoing exceptions are
present in this case. Both petitioners allege that SC-46 is violative of the
Constitution, the environmental and livelihood issues raised undoubtedly affect the
public's interest, and the respondents' contested actions are capable of repetition.
 Procedural Issues

Locus Standi of Petitioners Resident Marine Mammals and Stewards

The Resident Marine Mammals, through the Stewards, "claim" that they have the
legal standing to file this action since they stand to be benefited or injured by the
judgment in this suit.[40] Citing Oposa v. Factoran, Jr.,[41] they also assert their right
to sue for the faithful performance of international and municipal environmental
laws created in their favor and for their benefit. In this regard, they propound that
they have the right to demand that they be accorded the benefits granted to them
in multilateral international instruments that the Philippine Government had signed,
under the concept of stipulation pour autrui.[42]

For their part, the Stewards contend that there should be no question of their right
to represent the Resident Marine Mammals as they have stakes in the case as
forerunners of a campaign to build awareness among the affected residents of
Tañon Strait and as stewards of the environment since the primary steward, the
Government, had failed in its duty to protect the environment pursuant to the
public trust doctrine.[43]

Petitioners Resident Marine Mammals and Stewards also aver that this Court may
lower the benchmark in locus standi as an exercise of epistolary jurisdiction.[44]

In opposition, public respondents argue that the Resident Marine Mammals have no
standing because Section 1, Rule 3 of the Rules of Court requires parties to an
action to be either natural or juridical persons, viz.:
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
persons, or entities authorized by law may be parties in a civil action. The term
"plaintiff may refer to the claiming party, the counter-claimant, the cross-claimant,
or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the
original defending party, the defendant in a counterclaim, the cross-defendant, or
the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the
petitioners therein were all natural persons, albeit some of them were still unborn.
[45]

As regards the Stewards, the public respondents likewise challenge their claim of
legal standing on the ground that they are representing animals, which cannot be
parties to an action. Moreover, the public respondents argue that the Stewards are
not the real parties-in-interest for their failure to show how they stand to be
benefited or injured by the decision in this case.[46]

Invoking the alter ego principle in political law, the public respondents claim that
absent any proof that former President Arroyo had disapproved of their acts in
entering into and implementing SC-46, such acts remain to be her own.[47]

The public respondents contend that since petitioners Resident Marine Mammals
and Stewards' petition was not brought in the name of a real party-in-interest, it
should be dismissed for failure to state a cause of action.[48]

The issue of whether or not animals or even inanimate objects should be given legal
standing in actions before courts of law is not new in the field of animal rights and
environmental law. Petitioners Resident Marine Mammals and Stewards cited the
1972 United States case Sierra Club v. Rogers C.B. Morton,[49] wherein Justice
William O. Douglas, dissenting to the conventional thought on legal standing,
opined:
The critical question of "standing" would be simplified and also put neatly in focus if
we fashioned a federal rule that allowed environmental issues to be litigated before
federal agencies or federal courts in the name of the inanimate object about to be
despoiled, defaced, or invaded by roads and bulldozers and where injury is the
subject of public outrage, x x x.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality,
a fiction found useful for maritime purposes. The corporation sole - a creature of
ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases.
The ordinary corporation is a "person" for purposes of the adjudicatory processes,
whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries,

beaches, ridges, groves of trees, swampland, or even air that feels the destructive
pressures of modern technology and modem life. The river, for example, is the
living symbol of all the life it sustains or nourishes—fish, aquatic insects, water
ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are
dependent on it or who enjoy it for its sight, its sound, or its life. The river as
plaintiff speaks for the ecological unit of life that is part of it. Those people who
have a meaningful relation to that body of water—whether it be a fisherman, a
canoeist, a zoologist, or a logger—must be able to speak for the values which the
river represents and which are threatened with destruction.[50] (Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to give
animals and inanimate objects standing is due to the need to comply with the strict
requirements in bringing a suit to court. Our own 1997 Rules of Court demand that
parties to a suit be either natural or juridical persons, or entities authorized by law.
It further necessitates the action to be brought in the name of the real party-in-
interest, even if filed by a representative, viz.:
Rule 3 
Parties to Civil Actions

Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
persons, or entities authorized by law may be parties in a civil action. The term
"plaintiff " may refer to the claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer
to the original defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party defendant.

Sec. 2. Parties in interest. - A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.

Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted

or defended by a representative or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case and shall be deemed to be the
real party in interest. A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of an undisclosed principal may
sue or be sued without joining the principal except when the contract involves
things belonging to the principal.
It had been suggested by animal rights advocates and environmentalists that not
only natural and juridical persons should be given legal standing because of the
difficulty for persons, who cannot show that they by themselves are real parties-in-
interests, to bring actions in representation of these animals or inanimate objects.
For this reason, many environmental cases have been dismissed for failure of the
petitioner to show that he/she would be directly injured or affected by the outcome
of the case. However, in our jurisdiction, locus standi in environmental cases has
been given a more liberalized approach. While developments in Philippine legal
theory and jurisprudence have not progressed as far as Justice Douglas's paradigm
of legal standing for inanimate objects, the current trend moves towards
simplification of procedures and facilitating court access in environmental cases.

Recently, the Court passed the landmark Rules of Procedure for Environmental

Cases,[51] which allow for a "citizen suit," and permit any Filipino citizen to file an
action before our courts for violations of our environmental laws:
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others,
including minors or generations yet unborn, may file an action to enforce
rights or obligations under environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice
thereof. The plaintiff may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays copies of said order.

Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their
respective provisions.[52] (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of
Procedure for Environmental Cases, commented:
Citizen suit. To further encourage the protection of the environment, the Rules
enable litigants enforcing environmental rights to file their cases as citizen suits.
This provision liberalizes standing for all cases filed enforcing environmental laws
and collapses the traditional rule on personal and direct interest, on the principle
that humans are stewards of nature. The terminology of the text reflects the
doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and
generations yet unborn.[53](Emphasis supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity of the Rules of
Procedure for Environmental Cases, it has been consistently held that rules of
procedure "may be retroactively applied to actions pending and undetermined at
the time of their passage and will not violate any right of a person who may feel
that he is adversely affected, inasmuch as there is no vested rights in rules of
procedure."[54]

Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National

Labor Relations Commission[55] held that:
Remedial statutes or statutes relating to remedies or modes of procedure, which do
not create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of rights already existing, do not come within the legal
conception of a retroactive law, or the general rule against retroactive operation of
statutes. Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their passage.
Procedural laws are retroactive in that sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental Cases became
effective, this Court had already taken a permissive position on the issue of locus
standi in environmental cases. In Oposa, we allowed the suit to be brought in the
name of generations yet unborn "based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is
concerned."[56]Furthermore, we said that the right to a balanced and healthful
ecology, a right that does not even need to be stated in our Constitution as it is
assumed to exist from the inception of humankind, carries with it the correlative
duty to refrain from impairing the environment.[57]

In light of the foregoing, the need to give the Resident Marine Mammals legal
standing has been eliminated by our Rules, which allow any Filipino citizen, as a
steward of nature, to bring a suit to enforce our environmental laws. It is worth
noting here that the Stewards are joined as real parties in the Petition and not just
in representation of the named cetacean species. The Stewards, Ramos and Eisma-
Osorio, having shown in their petition that there may be possible violations of laws
concerning the habitat of the Resident Marine Mammals, are therefore declared to
possess the legal standing to file this petition.

Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-

Petitioner

Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner

former President Gloria Macapagal-Arroyo for the following reasons, which we
quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident
of Malacañang Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo
happens to be the incumbent President of the Philippine Islands. She is personally
impleaded in this suit as an unwilling co-petitioner by reason of her express
declaration and undertaking under the recently signed ASEAN Charter to protect
Your Petitioners' habitat, among others. She is meantime dominated as an unwilling
co-petitioner due to lack of material time in seeking her signature and imprimatur
hereof and due to possible legal complications that may hereafter arise by reason of
her official relations with public respondents under the alter ego principle in political
law.[58]
This is incorrect.

Section 10, Rule 3 of the Rules of Court provides:

Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a defendant and the reason therefor
shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a
plaintiff cannot be obtained, he or she may be made a party defendant to the case.
This will put the unwilling party under the jurisdiction of the Court, which can
properly implead him or her through its processes. The unwilling party's name
cannot be simply included in a petition, without his or her knowledge and consent,
as such would be a denial of due process.

Moreover, the reason cited by the petitioners Stewards for including former
President Macapagal-Arroyo in their petition, is not sufficient to implead her as an
unwilling co-petitioner. Impleading the former President as an unwilling co-
petitioner, for an act she made in the performance of the functions of her office, is
contrary to the public policy against embroiling the President in suits, "to assure the
exercise of Presidential duties and functions free from any hindrance or distraction,
considering that being the Chief Executive of the Government is a job that, aside
from requiring all of the office holder's time, also demands undivided attention."[59]

Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the

petitioners in this suit. Thus, her name is stricken off the title of this case.

Main Issue: 
Legality of Service Contract No. 46

Service Contract No. 46 vis-a-vis

Section 2, Article XII of the
1987 Constitution

Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or

paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX is 100%
Japanese-owned.[60] Furthermore, the FIDEC asserts that SC-46 cannot be
considered as a technical and financial assistance agreement validly executed under
paragraph 4 of the same provision.[61] The petitioners claim that La Bugal-B'laan
Tribal Association, Inc. v. Ramos[62] laid down the guidelines for a valid service
contract, one of which is that there must exist a general law for oil exploration
before a service contract may be entered into by the Government. The petitioners
posit that the service contract in La Bugal is presumed to have complied with the
requisites of (a) legislative enactment of a general law after the effectivity of the
1987 Constitution (such as Republic Act No. 7942, or the Philippine Mining Law of
1995, governing mining contracts) and (b) presidential notification. The petitioners
thus allege that the ruling in La Bugal, which involved mining contracts under
Republic Act No. 7942, does not apply in this case.[63] The petitioners also argue
that Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972
cannot legally justify SC-46 as it is deemed to have been repealed by the 1987
Constitution and subsequent laws, which enunciate new policies concerning the
environment.[64] In addition, petitioners in G.R. No. 180771 claim that paragraphs 2
and 3 of Section 2, Article XII of the 1987 Constitution mandate the exclusive use
and enjoyment by the Filipinos of our natural resources,[65] and paragraph 4 does
not speak of service contracts but of FTAAs or Financial Technical Assistance
Agreements.[66]

The public respondents again controvert the petitioners' claims and asseverate that
SC-46 does not violate Section 2, Article XII of the 1987 Constitution. They hold
that SC-46 does not fall under the coverage of paragraph 1 but instead, under
paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs. They also
insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to
Filipinos, are not applicable to SC-46 as the contract does not grant exclusive
fishing rights to JAPEX nor does it otherwise impinge on the FIDEC's right to
preferential use of communal marine and fishing resources.[67]

Ruling of the Court

On the legality of Service Contract No. 46 
vis-a-vis  Section 2, Article XII of the 1987 Constitution

The petitioners insist that SC-46 is null and void for having violated Section 2,
Article XII of the 1987 Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall
be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations
at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial use may be
the measure and limit of the grant.

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

The Congress may, by law, allow small-scale utilization of natural resources by

Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum, and other
mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the development and
use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its
execution. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still
allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the
words "service contracts" in the 1987 Constitution did not amount to a ban on
them per se. In fact, in that decision, we quoted in length, portions of the
deliberations of the members of the Constitutional Commission (ConCom) to show
that in deliberating on paragraph 4, Section 2, Article XII, they were actually
referring to service contracts as understood in the 1973 Constitution, albeit with
safety measures to eliminate or minimize the abuses prevalent during the martial
law regime, to wit:
Summation of the ConCom Deliberations

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

In their deliberations on what was to become paragraph 4, the framers used the
term service contracts in referring to agreements x x x involving either technical or
financial assistance.

They spoke of service contracts as the concept was understood in the 1973
Constitution.

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

Instead, they were plainly crafting provisions to put in place safeguards that would
eliminate or minimize the abuses prevalent during the marital law regime. In brief,
they were going to permit service contracts with foreign corporations as
contractors, but with safety measures to prevent abuses, as an exception to the
general norm established in the first paragraph of Section 2 of Article XII. This
provision reserves or limits to Filipino citizens and corporations at least 60 percent
of which is owned by such citizens — the exploration, development and utilization
of natural resources.

This provision was prompted by the perceived insufficiency of Filipino capital and
the felt need for foreign investments in the EDU of minerals and petroleum
resources.

The framers for the most part debated about the sort of safeguards that would be
considered adequate and reasonable. But some of them, having more "radical"
leanings, wanted to ban service contracts altogether; for them, the provision would
permit aliens to exploit and benefit from the nation's natural resources, which they
felt should be reserved only for Filipinos.

In the explanation of their votes, the individual commissioners were heard by the
entire body. They sounded off their individual opinions, openly enunciated their
philosophies, and supported or attacked the provisions with fervor. Everyone's
viewpoint was heard.

In the final voting, the Article on the National Economy and Patrimony — including
paragraph 4 allowing service contracts with foreign corporations as an exception to
the general norm in paragraph 1 of Section 2 of the same article — was
resoundingly approved by a vote of 32 to 7, with 2 abstentions.

Agreements Involving Technical Or Financial Assistance Are Service

Contracts with Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements

involving either technical or financial assistance, referred to in paragraph 4, are in
fact service contracts. But unlike those of the 1973 variety, the new ones are
between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or "owner" of the works. In the new service
contracts, the foreign contractors provide capital, technology and technical know-
how, and managerial expertise in the creation and operation of large-scale
mining/extractive enterprises; and the government, through its agencies (DENR,
MGB), actively exercises control and supervision over the entire operation.[68]
In summarizing the matters discussed in the ConCom, we established that
paragraph 4, with the safeguards in place, is the exception to paragraph 1,
Section 2 of Article XII. The following are the safeguards this Court enumerated
in La Bugal:
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards, among which are these requirements:

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

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

(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.[69]
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed
null and void for noncompliance with the requirements of the 1987 Constitution.

1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of

indigenous petroleum in the Philippines are governed by Presidential Decree No. 87
or the Oil Exploration and Development Act of 1972. This was enacted by then
President Ferdinand Marcos to promote the discovery and production of indigenous
petroleum through the utilization of government and/or local or foreign private
resources to yield the maximum benefit to the Filipino people and the revenues to
the Philippine Government.[70]

Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted
in 1972, before the adoption of the 1987 Constitution, remains to be a valid law
unless otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS

Section 3. All existing laws, decrees, executive orders, proclamations, letters of

instructions, and other executive issuances not inconsistent with this Constitution
shall remain operative until amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been
done expressly by Congress. For instance, Republic Act No. 7160, more popularly
known as the Local Government Code of 1991, expressly repealed a number of
laws, including a specific provision in Presidential Decree No. 87, viz.:
SECTION 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known
as the "Local Government Code," Executive Order No. 112 (1987), and Executive
Order No. 319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.

(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and
rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-
funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16 and 29 of Presidential
Decree No. 704; Section 12 of Presidential Decree No. 87, as amended;
Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No.
463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and

(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not
yet been expressly repealed, it had been impliedly repealed. As we held in Villareña
v. The Commission on Audit,[71] "[i]mplied repeals are not lightly presumed." It is a
settled rule that when laws are in conflict with one another, every effort must be
exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining
Corporation,[72] we said:
The two laws must be absolutely incompatible, and a clear finding thereof must
surface, before the inference of implied repeal may be drawn. The rule is expressed
in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e.,
every statute must be so interpreted and brought into accord with other laws as to
form a uniform system of jurisprudence. The fundament is that the legislature
should be presumed to have known the existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied
repeal, and all efforts should be exerted in order to harmonize and give effect to all
laws on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution,
but a construction that it is in harmony with the Constitution is also possible, that
construction should be preferred.[73] This Court, in Pangandaman v. Commission on
Elections[74]expounding on this point, pronounced:
It is a basic precept in statutory construction that a statute should be interpreted in
harmony with the Constitution and that the spirit, rather than the letter of the law
determines its construction; for that reason, a statute must be read according to its
spirit and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited
on the ground that there is no general law prescribing the standard or uniform
terms, conditions, and requirements for service contracts involving oil exploration
and extraction.

But note must be made at this point that while Presidential Decree No. 87 may
serve as the general law upon which a service contract for petroleum exploration
and extraction may be authorized, as will be discussed below, the exploitation and
utilization of this energy resource in the present case may be allowed only through
a law passed by Congress, since the Tañon Strait is a NIPAS[75] area.

2. President was not the signatory to SC-46 and the same was not
submitted to Congress

While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the
requirement of a general law, the absence of the two other conditions, that the
President be a signatory to SC-46, and that Congress be notified of such contract,
renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the
provisions of Presidential Decree No. 87, but also to those of the 1987 Constitution.
The Civil Code provides:
ARTICLE 1306. The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not contrary
to law, morals, good customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,[76] this Court held that:
It is basic that the law is deemed written into every contract. Although a contract is
the law between the parties, the provisions of positive law which regulate contracts
are deemed written therein and shall limit and govern the relations between the
parties, x x x. (Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the
President himself enter into any service contract for the exploration of petroleum.
SC-46 appeared to have been entered into and signed only by the DOE through its
then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of such contract.

Public respondents' implied argument that based on the "alter ego principle," their
acts are also that of then President Macapagal-Arroyo's, cannot apply in this case.
In Joson v. Torres,[77] we explained the concept of the alter ego principle or the
doctrine of qualified political agency and its limit in this wise:
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the exigencies of
the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the
Chief Executive. (Emphasis ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of
Article XII of the 1987 Constitution seem like mere formalities, they, in reality, take
on a much bigger role. As we have explained in La Bugal, they are the safeguards
put in place by the framers of the Constitution to "eliminate or minimize the abuses
prevalent during the martial law regime."[78] Thus, they are not just mere
formalities, which will only render a contract unenforceable but not void, if not
complied with. They are requirements placed, not just in an ordinary statute, but in
the fundamental law, the non-observance of which will nullify the contract.
Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,[79] held:
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. Under the
doctrine of constitutional supremacy, if a law or contract violates any norm
of the constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by private persons
for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President
himself be the signatory of service agreements with foreign-owned corporations
involving the exploration, development, and utilization of our minerals, petroleum,
and other mineral oils. This power cannot be taken lightly.

In this case, the public respondents have failed to show that the President had any
participation in SC-46. Their argument that their acts are actually the acts of then
President Macapagal-Arroyo, absent proof of her disapproval, must fail as the
requirement that the President herself enter into these kinds of contracts is
embodied not just in any ordinary statute, but in the Constitution itself. These
service contracts involving the exploitation, development, and utilization of our
natural resources are of paramount interest to the present and future generations.
Hence, safeguards were put in place to insure that the guidelines set by law are
meticulously observed and likewise to eradicate the corruption that may easily
penetrate departments and agencies by ensuring that the President has authorized
or approved of these service contracts herself.

Even under the provisions of Presidential Decree No. 87, it is required that the
Petroleum Board, now the DOE, obtain the President's approval for the execution of
any contract under said statute, as shown in the following provision:
SECTION 5. Execution of contract authorized in this Act. - Every contract herein
authorized shall, subject to the approval of the President, be executed by the
Petroleum Board created in this Act, after due public notice pre-qualification and
public bidding or concluded through negotiations. In case bids are requested or if
requested no bid is submitted or the bids submitted are rejected by the Petroleum
Board for being disadvantageous to the Government, the contract may be
concluded through negotiation.

In opening contract areas and in selecting the best offer for petroleum operations,
any of the following alternative procedures may be resorted to by the Petroleum
Board, subject to prior approval of the President[.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the
1987 Constitution with the aforementioned provision of Presidential Decree No. 87,
it must be shown that the government agency or subordinate official has been
authorized by the President to enter into such service contract for the government.
Otherwise, it should be at least shown that the President subsequently approved of
such contract explicitly. None of these circumstances is evident in the case at bar.
 Service Contract No. 46 vis-a-vis Other Laws

Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act.

No. 9147 or the Wildlife Resources Conservation and Protection Act, which bans all
marine exploration and exploitation of oil and gas deposits. They also aver that
Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for
the purpose of information-gathering, has been repealed by Section 27 of Republic
Act No. 9147. The said petitioners further claim that SC-46 is anathema to Republic
Act No. 8550 or the Philippine Fisheries Code of 1998, which protects the rights of
the fisherfolk in the preferential use of municipal waters, with the exception being
limited only to research and survey activities.[80]

The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of
the NIPAS Act, the gathering of information must be in accordance with a DENR-
approved program, and the exploitation and utilization of energy resources must be
pursuant to a general law passed by Congress expressly for that purpose. Since
there is neither a DENR-approved program nor a general law passed by Congress,
the seismic surveys and oil drilling operations were all done illegally.[81] The FIDEC
likewise contends that SC-46 infringes on its right to the preferential use of the
communal fishing waters as it is denied free access within the prohibited zone, in
violation not only of the Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social justice.[82] Furthermore, the FIDEC
believes that the provisions in Presidential Decree No. 87, which allow offshore
drilling even in municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic Act No. 7160,
which reiterate the social justice provisions of the Constitution.[83]

The public respondents invoke the rules on statutory construction and argue that
Section 14 of the NIPAS Act is a more particular provision and cannot be deemed to
have been repealed by the more general prohibition in Section 27 of Republic Act
No. 9147. They aver that Section 14, under which SC-46 falls, should instead be
regarded as an exemption to Section 27.[84]

Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of

Section 27 of Republic Act No. 9147, the public respondents assert that what the
section prohibits is the exploration of minerals, which as defined in the Philippine
Mining Act of 1995, exclude energy materials such as coal, petroleum, natural gas,
radioactive materials and geothermal energy. Thus, since SC-46 involves oil and
gas exploration, Section 27 does not apply.[85]

The public respondents defend the validity of SC-46 and insist that it does not grant
exclusive fishing rights to JAPEX; hence, it does not violate the rule on preferential
use of municipal waters. Moreover, they allege that JAPEX has not banned fishing in
the project area, contrary to the FIDEC's claim. The public respondents also contest
the attribution of the declining fish catch to the seismic surveys and aver that the
allegation is unfounded. They claim that according to the Bureau of Fisheries and
Aquatic Resources' fish catch data, the reduced fish catch started in the 1970s due
to destructive fishing practices.[86]

Ruling of the Court

On the legality of Service Contract No. 46 vis-a-vis Other Laws

Although we have already established above that SC-46 is null and void for being
violative of the 1987 Constitution, it is our duty to still rule on the legality of SC-
46 vis-a-vis other pertinent laws, to serve as a guide for the Government when
executing service contracts involving not only the Tañon Strait, but also other
similar areas. While the petitioners allege that SC-46 is in violation of several laws,
including international ones, their arguments focus primarily on the protected
status of the Tañon Strait, thus this Court will concentrate on those laws that
pertain particularly to the Tañon Strait as a protected seascape.

The Tañon Strait is a narrow passage of water bounded by the islands of Cebu in
the East and Negros in the West. It harbors a rich biodiversity of marine life,
including endangered species of dolphins and whales. For this reason, former
President Fidel V. Ramos declared the Tañon Strait as a protected seascape in 1998
by virtue of Proclamation No. 1234 - Declaring the Tañon Strait situated in the
Provinces of Cebu, Negros Occidental and Negros Oriental as a Protected Area
pursuant to the NIP AS Act and shall be known as Tañon Strait Protected Seascape.
During former President Joseph E. Estrada's time, he also constituted the Tañon
Strait Commission via Executive Order No. 76 to ensure the optimum and sustained
use of the resources in that area without threatening its marine life. He followed
this with Executive Order No. 177,[87] wherein he included the mayor of Negros
Occidental Municipality/City as a member of the Tañon Strait Commission, to
represent the LGUs concerned. This Commission, however, was subsequently
abolished in 2002 by then President Gloria Macapagal-Arroyo, via Executive Order
No. 72.[88]

True to the constitutional policy 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,"[89] Congress enacted the NIPAS Act to secure the perpetual
existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas. These areas possess common
ecological values that were incorporated into a holistic plan representative of our
natural heritage. The system encompasses outstandingly remarkable areas and
biologically important public lands that are habitats of rare and endangered species
of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland, or marine.[90] It classifies and administers all the designated
protected areas to maintain essential ecological processes and life-support systems,
to preserve genetic diversity, to ensure sustainable use of resources found therein,
and to maintain their natural conditions to the greatest extent possible.[91] The
following categories of protected areas were established under the NIPAS Act:

a. Strict nature reserve;

 b. Natural park;

c. Natural monument;

d. Wildlife sanctuary;

e. Protected landscapes and seascapes;

f. Resource reserve;

g. Natural biotic areas; and

h. Other categories established by law, conventions or international agreements

which the Philippine Government is a signatory.[92]

Under Section 4 of the NIPAS Act, a protected area refers to portions of land and
water, set aside due to their unique physical and biological significance, managed to
enhance biological diversity and protected against human exploitation.

The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a
protected area under the category of Protected Seascape. The NIPAS Act defines a
Protected Seascape to be an area of national significance characterized by the
harmonious interaction of man and land while providing opportunities for public
enjoyment through recreation and tourism within the normal lifestyle and economic
activity of this areas;[93] thus a management plan for each area must be designed to
protect and enhance the permanent preservation of its natural conditions.
[94]
 Consistent with this endeavor is the requirement that an Environmental Impact
Assessment (EIA) be made prior to undertaking any activity outside the scope of
the management plan. Unless an ECC under the EIA system is obtained, no activity
inconsistent with the goals of the NIPAS Act shall be implemented.[95]

The Environmental Impact Statement System (EISS) was established in 1978 under
Presidential Decree No. 1586. It prohibits any person, partnership or corporation
from undertaking or operating any declared environmentally critical project or areas
without first securing an ECC issued by the President or his duly authorized
representative.[96] Pursuant to the EISS, which called for the proper management of
environmentally critical areas,[97] Proclamation No. 2146[98] was enacted, identifying
the areas and types of projects to be considered as environmentally critical and
within the scope of the EISS, while DENR Administrative Order No. 2003-30
provided for its Implementing Rules and Regulations (IRR).

DENR Administrative Order No. 2003-30 defines an environmentally critical area as

"an area delineated as environmentally sensitive such that significant
environmental impacts are expected if certain types of proposed projects or
programs are located, developed, or implemented in it";[99] thus, before a project,
which is "any activity, regardless of scale or magnitude, which may have significant
impact on the environment,"[100] is undertaken in it, such project must undergo an
EIA to evaluate and predict the likely impacts of all its stages on the environment.
[101]
 An EIA is described in detail as follows:
h. Environmental Impact Assessment (EIA) - process that involves evaluating and predicting
the likely impacts of a project (including cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the community's welfare. The process is
undertaken by, among others, the project proponent and/or EIA Consultant, EMB, a Review
Committee, affected communities and other stakeholders.[102]
Under Proclamation No. 2146, the Tañon Strait is an environmentally
critical area, having been declared as a protected area in 1998; therefore,
any activity outside the scope of its management plan may only be
implemented pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological system.

The public respondents argue that they had complied with the procedures in
obtaining an ECC[103] and that SC-46 falls under the exceptions in Section 14 of the
NIPAS Act, due to the following reasons:

1) The Tañon Strait is not a strict nature reserve or natural park;

2) Exploration is only for the purpose of gathering information on possible energy

resources; and

3) Measures are undertaken to ensure that the exploration is being done with the
least damage to surrounding areas.[104]

We do not agree with the arguments raised by the public respondents.

Sections 12 and 14 of the NIPAS Act read:

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

No actual implementation of such activities shall be allowed without the required

Environmental Compliance Certificate (ECC) under the Philippine Environmental
Impact Assessment (EIA) system. In instances where such activities are allowed to
be undertaken, the proponent shall plan and carry them out in such manner as will
minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.

SECTION 14. Survey for Energy Resources. - Consistent with the policies declared
in Section 2 hereof, protected areas, except strict nature reserves and natural
parks, may be subjected to exploration only for the purpose of gathering
information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance
with a program approved by the DENR, and the result of such surveys shall be
made available to the public and submitted to the President for recommendation to
Congress. Any exploitation and utilization of energy resources found within NIPAS
areas shall be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not without
exceptions. However, while an exploration done for the purpose of surveying
for energy resources is allowed under Section 14 of the NIPAS Act, this
does not mean that it is exempt from the requirement to undergo an EIA
under Section 12. In Sotto v. Sotto,[105] this Court explained why a statute should
be construed as a whole:
A statute is passed as a whole and not in parts or sections and is animated by one
general purpose and intent. Consequently each part or section should be construed
in connection with every other part or section and so as to produce a harmonious
whole. It is not proper to confine the attention to the one section to be construed.
It is always an unsafe way of construing a statute or contract to divide it by a
process of etymological dissection, into separate words, and then apply to each,
thus separated from its context, some particular definition given by lexicographers,
and then reconstruct the instrument upon the basis of these definitions. An
instrument must always be construed as a whole, and the particular meaning to be
attached to any word or phrase is usually to be ascertained from the context, the
nature of the subject treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or framed the statute or
constitution, x x x.
Surveying for energy resources under Section 14 is not an exemption from
complying with the EIA requirement in Section 12; instead, Section 14
provides for additional requisites before any exploration for energy
resources may be done in protected areas.

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

It is hereby recognized that these areas, although distinct in features, possess

common ecological values that may be incorporated into a holistic plan
representative of our natural heritage; that effective administration of this area is
possible only through cooperation among national government, local government
and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and
sustainable development.
To this end, there is hereby established a National Integrated Protected Areas
System (NIPAS), which shall encompass outstandingly remarkable areas and
biologically important public lands that are habitats of rare and endangered species
of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to secure an
ECC prior to the second sub-phase of SC-46, which required the drilling of an oil
exploration well. This means that when the seismic surveys were done in the Tañon
Strait, no such environmental impact evaluation was done. Unless seismic surveys
are part of the management plan of the Tañon Strait, such surveys were dona in
violation of Section 12 of the NIPAS Act and Section 4 of Presidential Decree No.
1586, which provides:
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects.
- The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by proclamation
declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such
declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized
representative. For the proper management of said critical project or area, the
President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of
government personnel, and their specific functions and responsibilities.

For the same purpose as above, the Ministry of Human Settlements shall: (a)
prepare the proper land or water use pattern for said critical project(s) or area(s);
(b) establish ambient environmental quality standards; (c) develop a program of
environmental enhancement or protective measures against calamitous factors such
as earthquakes, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of
SC-46 cannot and will not cure this violation. The following penalties are provided
for under Presidential Decree No. 1586 and the NIPAS Act.

Section 9 of Presidential Decree No. 1586 provides for the penalty involving
violations of the ECC requirement:
Section 9. Penalty for Violation. - Any person, corporation or partnership found
violating Section 4 of this Decree, or the terms and conditions in the issuance of the
Environmental Compliance Certificate, or of the standards, rules and regulations
issued by the National Environmental Protection Council pursuant to this Decree
shall be punished by the suspension or cancellation of his/its certificates
and/or a fine in an amount not to exceed Fifty Thousand Pesos
(P50,000.00) for every violation thereof, at the discretion of the National
Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under
Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations
issued by the Department pursuant to this Act or whoever is found guilty by a
competent court of justice of any of the offenses in the preceding section shall
be fined in the amount of not less than Five thousand pesos (P5,000) nor
more than Five hundred thousand pesos (P500,000), exclusive of the value
of the thing damaged or imprisonment for not less than one (1) year but
not more than six (6) years, or both, as determined by the court: Provided,
that, if the area requires rehabilitation or restoration as determined by the
court, the offender shall be required to restore or compensate for the
restoration to the damages:Provided, further, that court shall order the eviction
of the offender from the land and the forfeiture in favor of the Government
of all minerals, timber or any species collected or removed including all
equipment, devices and firearms used in connection therewith, and any
construction or improvement made thereon by the offender. If the offender
is an association or corporation, the president or manager shall be directly
responsible for the act of his employees and laborers: Provided, finally, that the
DENR may impose administrative fines and penalties consistent with this
Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering information
on the possible energy resources in the Tañon Strait as it also provides for the
parties' rights and obligations relating to extraction and petroleum production
should oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law upon which a
service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in the
present case may be allowed only through a law passed by Congress, since
the Tañon Strait is a NIPAS area.[106] Since there is no such law specifically
allowing oil exploration and/or extraction in the Tañon Strait, no energy
resource exploitation and utilization may be done in said protected
seascape.

In view of the foregoing premises and conclusions, it is no longer necessary to

discuss the other issues raised in these consolidated petitions.

WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED,

Service Contract No. 46 is hereby declared NULL AND VOIDfor violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1586.

SO ORDERED.

Sereno, C. J., Carpio, Velasco, Jr., Brion, Peralta, Bersamin, Del Castillo, Villarama,
Jr., Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Leonen, J., see concurring opinion.
Jardeleza, J., no part prior OSG action
SECOND DIVISION

A.M. No. SCC-13-18-J (Formerly A.M. OCA IPI No. 11-36-SCC), July 01, 2015

BAGUAN M. MAMISCAL, Complainant, v. CLERK OF COURT MACALINOG S. ABDULLAH,

SHARI'A CIRCUIT COURT, MARAWI CITY, Respondent.

DECISION

MENDOZA, J.:

This resolves the complaint1 of Baguan M. Mamiscal (Mamiscal) against respondent Macalinog
S. Abdullah (Abdullah), Clerk of Court, Shari'a Circuit Court, Marawi City, for partiality, violation
of due process, dishonesty, and conduct unbecoming of a court employee. Originally, the
complaint also charged Judge Aboali J. Cali (Judge Cali), Presiding Judge, Shari'a Circuit Court,
Marawi City, for his participation in the subject controversy. On January 9, 2013, the Court
resolved to dismiss the charges against Judge Cali for lack of merit. 2ChanRoblesVirtualawlibrary

The Facts

In his complaint, Mamiscal averred that on September 26, 2010, he and his wife, Adelaidah
Lomondot (Adelaidah) had a heated argument. In a fit of anger, Mamiscal decided to divorce
his wife by repudiating her (talaq).3 The repudiation was embodied in an
agreement4 (kapasadan) signed by Mamiscal and Adelaidah.

The next day, Adelaidah left their conjugal dwelling in Iligan City and went back to her family's
home in Marinaut, Marawi City. A few days later, during the obligatory period of waiting
('iddah),5 Mamiscal had a change of heart and decided to make peace with his wife. For the
purpose, he sent their common relatives to see Adelaidah and make peace with her on his
behalf.6ChanRoblesVirtualawlibrary

Almost five (5) months later, however, on February 23, 2011, Adelaidah filed 7 the Certificate of
Divorce (COD),8 dated September 26, 2010, with the office of Abdullah for registration.
Although unsigned, the certificate, purportedly executed by Mamiscal, certified that he had
pronounced talaq in the presence of two (2) witnesses and in accordance with Islamic Law for
the purpose of effecting divorce from Adelaidah. A notation on the certificate stated that it was
being filed together with the kapasadan.

On the same day, Abdullah, in the exercise of his duty as both Clerk of Court and Circuit Civil
Registrar,9issued the Invitation10 notifying the couple and their representatives to appear before
the Shari'a Circuit Court on February 28, 2011, in order to constitute the Agama Arbitration
Council (AAC) that would explore the possibility of reconciling the
spouses.11ChanRoblesVirtualawlibrary

On March 24, 2011, Abdullah issued the Certificate of Registration of Divorce12 (CRD) finalizing
the divorce between Mamiscal and Adelaidah.

Mamiscal sought the revocation of the CRD, questioning the validity of the kapasadan on which
the CRD was based. In his motion, Mamiscal contended that the kapasadan was invalid
considering that he did not prepare the same. Moreover, there were no witnesses to its
execution. He claimed that he only signed the kapasadan because of Adelaidah's threats.
Mamiscal also questioned the validity of the COD, denying that he had executed and filed the
same before the office of Abdullah. Insisting that he never really intended to divorce his wife,
Mamiscal pointed out the fact that on December 13, 2010, before the expiration of the 'iddah,
he wrote his wife13 to inform her that he was revoking the repudiation he made on September
26, 2010 and the kapasadan they entered into on the same day because he did it on the "spur
of the moment."14ChanRoblesVirtualawlibrary

For Mamiscal, the CRD should be declared invalid considering that: a) he was deprived of due
process because the AAC, before which he and his children were supposed to express their
sentiments regarding the divorce, was yet to be constituted; b) three days before the issuance
of the CRD, Professor Mustafa Lomala M. Dimaro, appeared before Judge Cali to discuss the
possibility of reconciliation between the parties; and c) their children, Adelah Rima and Nairn
Mamiscal, prayed that the trial court advise their mother not to proceed with the divorce. 15 In
addition to the revocation of the CRD, Mamiscal also prayed that Abdullah order the
reconvening of the AAC and, thereafter, grant the restoration of his marital rights with
Adelaidah.

On April 20, 2011, Abdullah denied Mamiscal's motion. 16 In sustaining the divorce between
Mamiscal and Abdullah, Abdullah opined that it was simply his ministerial duty to receive the
COD and the attached kapasadan filed by Adelaidah. Abdullah also noted that when the AAC
was convened during the February 28, 2010 hearing, only Mamiscal and his representatives
appeared. Considering the fact that Adelaidah manifested her opposition in writing to any
reconciliation with her husband and the fact that the 90-day period of 'iddah had already
lapsed, Abdullah ruled that any move to reconstitute the AAC would have been futile because
the divorce between Mamiscal and his wife had already become final and irrevocable.

Contending that the issuance of the CRD was tainted with irregularity, Mamiscal comes to this
Court, through the subject complaint, charging Abdullah with partiality, violation of due
process, dishonesty, and conduct unbecoming of a court employee.

The Charge

In his complaint, Mamiscal averred that Abdullah should not have entertained or acted upon
the COD and the kapasadan filed by Adelaidah. He contended that under the Code of Muslim
Personal Laws, a divorce under talaq could only be filed and registered by the male spouse,
considering that female Muslims could do so only if the divorce was
through tafwid.17ChanRoblesVirtualawlibrary
Moreover, Mamiscal alleged that Abdullah "fabricated and twisted the facts" 18 when he
declared that only Mamiscal and his representative appeared when the AAC was convened.
Mamiscal insisted that Adelaidah and her relatives were also present during the hearing of
February 28, 2010, and that the AAC was never convened because the parties agreed to reset
the proceedings so that they could explore the possibility of reconciling the differences
between them. Notwithstanding the ongoing mediation proceedings, Abdullah proceeded to
act on the COD and finalized the divorce by issuing the CRD.

Finally, it was averred that Abdullah violated the Shari'a rules of procedure when he initially
refused to receive Mamiscal's motion for reconsideration when it was first filed. Mamiscal also
argued that Abdullah should not have considered the opposition of Adelaidah when he denied
his attempt to seek reconsideration because he was never furnished a copy of Adelaidah's
opposition.

Abdullah's Comment

In his comment,19 Abdullah countered that although he had the authority to process the
registration of the divorce as court registrar, he could not be held responsible for the contents
of the COD and the kapasadan because his functions were only ministerial. Nevertheless,
Abdullah asserted that the divorce between Mamiscal and Adelaidah had already attained
finality, not only because of the lapse of the required 'iddah, but also because
the kapasadan and Adelaidah's opposition both proved that there could be no reconciliation
between the spouses.

Abdullah also discounted any impropriety for processing the unsigned COD, arguing that since it
was accompanied by the kapasadan which bore the signature of Mamiscal and his declaration
that he was divorcing his wife by talaq - there was nothing wrong with Adelaidah filing it with
his office. Moreover, with the lapse of the 'iddah, Abdullah argued that the COD had remained
to be nothing more than a formality for the purpose of registering the divorce with the National
Statistics Office (NSO) and its issuance using the NSO security paper.

As to the allegations pertaining to the February 28, 2010 hearing, Abdullah stated that he only
conducted the same because it was required under the Muslim Personal Code. Abdullah
explained that he did not convene the ACC anymore not only because Adelaidah or her
representatives were not present, but also because the divorcing couple's own children wrote
to him opposing the convening of the council.
As to Mamiscal's contention that he already revoked his repudiation of his wife, Abdullah
pointed out that his office was not informed of any revocation of the divorce. According to
Abdullah, if Mamiscal had indeed revoked his repudiation, he should have complied with the
provisions of Rule II (1)(2) of NSO Administrative Order No. 1, series of 2001, which required the
husband to file five (5) copies of his sworn statement attesting to the fact of revocation,
together with the written consent of his wife.

In its report,20 the Office of the Court Administrator (OCA) found Abdullah guilty of gross
ignorance of the law and recommended that he be fined in the amount of P10,000.00 with a
stern warning that a repetition of the same offense shall be dealt with severely.

On January 30, 2014, Abdullah filed a motion,21 praying for the early resolution of the complaint
filed against him. Reiterating his plea for the dismissal of the said complaint, Abdullah claimed
that he was due for compulsory retirement on June 5, 2014.chanrobleslaw 

The Court's Ruling

At the outset, it must first be pointed out that while it may seem to be a related issue, the
validity of the divorce between Mamiscal and Adelaidah is not in issue here. Whether or not
Mamiscal had validly effected a divorce from his wife is a matter that must first be addressed by
the Shari'a Circuit Court which, under the Code of Muslim Personal Laws of the Philippines
(Muslim Code),22 enjoys exclusive original jurisdiction to resolve disputes relating to divorce.

Thus, Article 155 of the Muslim Code provides:

chanRoblesvirtualLawlibrary

Article 155. Jurisdiction. The Shari'a Circuit Courts shall have exclusive original jurisdiction over;

(1) All cases involving offenses defined and punished under this Code.

(2) All civil actions and proceedings between parties who are Muslims or have been married in
accordance with Article 13 involving disputes relating to:

(a) Marriage;

(b) Divorce recognized under this Code;

(c) Betrothal or breach of contract to marry;

(d) Customary dower (mahr);

(e) Disposition and distribution of property upon divorce;

(f) Maintenance and support, and consolatory gifts, (mut'a); and

(g) Restitution of marital rights.

(3) All cases involving disputes relative to communal properties.

[Emphases Supplied]

Consequently, in resolving the subject complaint, the Court shall confine itself to the sole issue
of whether or not Abdullah should be held administratively liable for his actions in connection
with the registration of the divorce between Mamiscal and Adelaidah. A priori to the resolution
of the foregoing issue is the question of whether this Court has jurisdiction to impose
administrative sanction against Abdullah for his acts.

The Court rules in the negative.

The civil registrar is the person charged by law for the recording of vital events and other
documents affecting the civil status of persons. The Civil Registry Law embraces all acts of civil
life affecting the status of persons and is applicable to all persons residing in the
Philippines.23ChanRoblesVirtualawlibrary

To ensure the proper registration of all facets of the civil life of Muslim Filipinos throughout the
country, Article 81 of the Muslim Code provides:
chanRoblesvirtualLawlibrary

Article 81. District Registrar. The Clerk of Court of the Shari' a District Court shall, in addition to
his regular functions, act as District Registrar of Muslim Marriages, Divorces, Revocations of
Divorces, and Conversions within the territorial jurisdiction of said court. The Clerk of Court of
the Shari'a Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces,
Revocations of Divorces, and Conversions within his jurisdiction.

[Emphasis Supplied]

In view of the above-quoted provision, it becomes apparent that the Clerk of Court of the
Shari'a Circuit Court enjoys the privilege of wearing two hats: first, as Clerk of Court of the
Shari'a Circuit Court, and second, as Circuit Registrar within his territorial jurisdiction. Although
the Constitution vests the Court with the power of administrative supervision over all courts
and its personnel,24 this power must be taken with due regard to other prevailing laws.

Thus, Article 185 of the Muslim Code provides:

chanRoblesvirtualLawlibrary

Article 185. Neglect of duty by registrars. Any district registrar or circuit registrar who fails to
perform properly his duties in accordance with this Code shall be penalized in accordance with
Section 18 of Act 3753.
chanroblesvirtuallawlibrary

Commonwealth Act (C.A.) No. 375325 is the primary law that governs the registry of civil status
of persons. To ensure that civil registrars perform their duties under the law, Section 18 of C.A.
No. 3753 provides:
chanRoblesvirtualLawlibrary

Section 18. Neglect of duty with reference to the provisions of this Act. — Any local registrar
who fails to properly perform his duties in accordance with the provisions of this Act and of the
regulations issued hereunder, shall be punished for the first offense, by an administrative fine in
a sum equal to his salary for not less than fifteen days nor more than three months, and for a
second or repeated offense, by removal from the service.

[Emphasis Supplied]

The same Act provides:

chanRoblesvirtualLawlibrary

Section 2. Civil Registrar-General his duties and powers. - The director of the National Library
shall be Civil Registrar-General and shall enforce the provisions of this Act. The Director of the
National Library, in his capacity as Civil Registrar-General, is hereby authorized to prepare and
issue, with the approval of the Secretary of Justice, regulations for carrying out the purposes of
this Act, and to prepare and order printed the necessary forms for its proper compliance. In the
exercise of his functions as Civil Registrar-General, the Director of the National Library shall
have the power to give orders and instructions to the local Civil registrars with reference to the
performance of their duties as such. It shall be the duty of the Director of the National Library
to report any violation of the provisions of this Act and all irregularities, negligence or
incompetency on the part of the officers designated as local civil registrars to the (Chief of the
Executive Bureau or the Director of the Non-Christian Tribes) Secretary of the Interior, as the
case may be, who shall take the proper disciplinary action against the offenders.

[Emphasis and Underscoring Supplied]

Prescinding from the foregoing, it becomes apparent that this Court does not have jurisdiction
to impose the proper disciplinary action against civil registrars. While he is undoubtedly a
member of the Judiciary as Clerk of Court of the Shari'a Circuit Court, a review of the subject
complaint reveals that Mamiscal seeks to hold Abdullah liable for registering the divorce and
issuing the CRD pursuant to his duties as Circuit Registrar of Muslim divorces. It has been said
that the test of jurisdiction is the nature of the offense and not the personality of the
offender.26 The fact that the complaint charges Abdullah for "conduct unbecoming of a court
employee" is of no moment. Well-settled is the rule that what controls is not the designation of
the offense but the actual facts recited in the complaint. Verily, unless jurisdiction has been
conferred by some legislative act, no court or tribunal can act on a matter submitted to
it.27ChanRoblesVirtualawlibrary

It bears to stress at this point that this Court can resolve the foregoing jurisdictional issue even
if the matter of jurisdiction was never raised by any of the parties. Jurisprudence is replete with
rulings that jurisdiction, or the power and authority of a court to hear, try and decide a case
must first be acquired by the court or an adjudicative body over the subject matter and the
parties in order to have authority to dispose of the case on the merits.28 Elementary is the
distinction between jurisdiction over the subject matter and jurisdiction over the person.
Jurisdiction over the subject matter is conferred by the Constitution or by law. In contrast,
jurisdiction over the person is acquired by the court by virtue of the party's voluntary
submission to the authority of the court or through the exercise of its coercive processes.
Jurisdiction over the person is waivable unlike jurisdiction over the subject matter which is
neither subject to agreement nor conferred by consent of the
parties.29ChanRoblesVirtualawlibrary

Having settled the foregoing issue, the following question now confronts the Court: Who,
among the various agencies and instrumentalities of the government, is empowered with
administrative supervisory powers in order to impose disciplinary sanctions against erring civil
registrars?

On this score, a recap of the legislative history surrounding our system of civil registration is in
order.

The system of civil registration was first established in the Philippines by the revolutionary
government on June 18, 1898 or barely six days after the declaration of the country's
independence from Spain on June 12, 1898. Originally, the system was decentralized in the
sense that civil registration was purely a local government responsibility. It was only on
February 27, 1931, when C.A. No. 375330 took effect and centralized the system of civil
registration in the country. Under this law, the director of the National Library was made
responsible as the Civil Registrar-General to exercise technical supervision and ensure the
proper establishment and maintenance of our civil registry system.

Then, following C.A. No. 591,31 the duties exercised by the director of National Library with
regard to matters concerning the system of civil registration were transferred to the Bureau of
Census and Statistics. This bureau subsequently became the NSO, 32 whose Administrator
concurrently served as the Civil Registrar-General.33 At present, the National Statistician is
empowered by Republic Act (R.A.) No. 10625, as Civil Registrar-General to exercise technical
supervision of civil registrars.34ChanRoblesVirtualawlibrary

Due to the need to address the cultural peculiarities practiced by our Muslim brethren,
however, Congress saw the need to designate the Clerk of Court of the Shari'a Circuit Court to
act as the Circuit Registrar of Muslim marriages, divorces, revocations of divorces, and
conversions to Islam within his jurisdiction. As earlier cited, Article 181 of the Muslim Code
provides that: The Clerk of Court of the Shari'a Circuit Court shall act as Circuit Registrar of
Muslim Marriages, Divorces, Revocations of Divorces, and Conversions within his jurisdiction.

In order to ensure that Circuit Registrars remain faithful to their duties, Article 82 of the Muslim
Code tasks the Clerks of Court of the Shari'a District Court to act as District Registrars and
exercise technical supervision over Circuit Registrars by requiring them to keep a proper
recording of all matters pertaining to the personal lives of Muslims. Thus:
chanRoblesvirtualLawlibrary

Article 82. Duties of District Registrar. Every District Registrar shall exercise supervision over
Circuit Registrars in every Shari'a District. He shall, in addition to an entry book, keep and bind
copies of certificates of Marriage, Divorce, Revocation of Divorce, and Conversion sent to him
by the Circuit Registrars in separate general registers. He shall send copies in accordance with
Act. No. 3753, as amended, to the office of the Civil Registrar-General.
chanroblesvirtuallawlibrary

All these notwithstanding, the power of administrative supervision over civil registrars remains
with the National Government. As Section 2 of CA No. 3753 provides:
chanRoblesvirtualLawlibrary

Section 2. Civil Registrar-General his duties and powers. - The director of the National Library
shall be Civil Registrar-General and shall enforce the provisions of this Act. The Director of the
National Library, in his capacity as Civil Registrar-General, is hereby authorized to prepare and
issue, with the approval of the Secretary of Justice, regulations for carrying out the purposes of
this Act, and to prepare and order printed the necessary forms for its proper compliance. In the
exercise of his functions as Civil Registrar-General, the Director of the National Library shall
have the power to give orders and instructions to the local Civil registrars with reference to the
performance of their duties as such. It shall be the duty of the Director of the National
Library to report any violation of the provisions of this Act and all irregularities, negligence or
incompetency on the part of the officers designated as local civil registrars to the (Chief of the
Executive Bureau or the Director of the Non-Christian Tribes) Secretary of the Interior, as the
case may be, who shall take the proper disciplinary action against the offenders.

[Emphasis Supplied]

It was only with the advent of the Local Government Code that the power of administrative
supervision over civil registrars was devolved to the municipal and city mayors of the
respective local government units. Under the "faithful execution clause" embodied in Section
455(b)(l)(x)35 and Section 444(b)(l)(x)36 of the Local Government Code, in relation to Section
47937 under Article IX, Title V38 of the same Code, the municipal and city mayors of the
respective local government units, in addition to their power to appoint city or municipal civil
registrars are also given ample authority to exercise administrative supervision over civil
registrars. Thus, when Administrative Order No. 1, Series of 1993 of the Office of the Civil
Registrar-General (OCRG) was passed to implement CA No. 3753 it was declared:
chanRoblesvirtualLawlibrary

Rule 1. Duties and Powers of the Civil Registrar-General. - The Civil Registrar-General shall have
the following duties and powers:

a) To enforce the provisions of Act No. 3753;

b) To prepare and issue regulations for carrying out the purposes of Act No. 3753 and other
laws relative to civil registration, and to prepare and order printed the necessary forms for
its proper compliance;

c) To give orders and instructions to the city/municipal civil registrars with reference to the
performance of their duties as such; and

d) To report any violation of the provisions of Act No. 3753 and other laws on civil
registration, and all irregularities, negligence or incompetency of city/municipal civil
registrar to the concerned mayor who shall take the proper disciplinary action against
the offender.

This authority of the Mayor to exercise administrative jurisdiction over Circuit Registrars was
also recognized generally, under Section 47(2) of the Administrative Code of
1987,39 and specifically, under Rule 11 of Administrative Order No. 2, Series of 1993 40 of the
OCRG, and the more recent Administrative Order No. 5, Series of 2005 41 of the same office,
which applies specially to the registration of acts and events concerning the civil status of
Muslim Filipinos.

At this juncture, it should be remembered that the authority of the Mayor to exercise
administrative supervision over C/MCRs is not exclusive. The Civil Service Commission (CSC), as
the central personnel agency of the government, has the power to appoint and discipline its
officials and employees and to hear and decide administrative cases instituted by or brought
before it directly or on appeal.42 Under Section 9 of the Revised Uniform Rules on
Administrative Cases in the Civil Service, the CSC is granted original concurrent jurisdiction over
administrative cases. Thus:
chanRoblesvirtualLawlibrary

Section 9. Jurisdiction of Heads of Agencies. - The Secretaries and heads of agencies, and other
instrumentalities, provinces, cities and municipalities shall have original concurrent
jurisdiction with the Commission over their respective officers and employees. x x x
chanroblesvirtuallawlibrary

Consequently, it behooves the Court to also forward the subject complaint to the Office of the
Mayor, Marawi City and to the CSC for appropriate action.

WHEREFORE, the administrative matter against Macalinog S. Abdullah, Clerk of Court II, Shari'a
Circuit Court, Marawi City, for partiality, violation of due process, dishonesty, and conduct
unbecoming a court employee is DISMISSED for lack of jurisdiction, without prejudice. The
complaint of Baguan M. Mamiscal against Macalinog S. Abdullah is hereby REFERRED to the
Office of the Mayor, Marawi City and the Civil Service Commission for appropriate action.

SO ORDERED.
G.R. Nos. 217126-27, November 10, 2015

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, Petitioner, v. COURT

OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., Respondents.

DECISION

PERLAS-BERNABE, J.:

"All government is a trust, every branch of government is a trust, and immemorially

acknowledged so to be[.]"1ChanRoblesVirtualawlibrary

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by

petitioner Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through
the Office of the Solicitor General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of
public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order 4 dated March 10, 20,15
of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution5 dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No.
139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary

injunction8 (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to file a supplemental petition9 on
April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching"
Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and
employees of the City Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and
violation of Republic Act No. (RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt
Practices Act," in connection with the five (5) phases of the procurement and construction of
the Makati City Hall Parking Building (Makati Parking Building).13

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators 14 to

conduct a fact-finding investigation, submit an investigation report, and file the necessary
complaint, if warranted (1st Special Panel).15 Pursuant to the Ombudsman's directive, on March
5, 2015, the 1st Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases17for Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal cases 18 for violation
of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public Documents
(OMB Cases).19

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract22 on September 28, 2010,23 without the required
publication and the lack of architectural design,24 and approved the release of funds therefor in
the following amounts as follows: (1) P130,518,394.80 on December 15, 2010;25 (2)
P134,470,659.64 on January 19, 2011;26 (3) P92,775,202.27 on February 25, 2011;27 (4)
P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61 on May 3, 2011;29 and (6)
P106,672,761.90 on July 7, 2011;30

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract32 on August 18, 2011,33 without the required publication and the lack of architectural
design,34 and approved the release of funds therefor in the following amounts as follows: (1)
P182,325,538.97 on October 4, 2O11; 35 (2) P173,132,606.91 on October 28,2011;36 (3)
P80,408,735.20 on December 12, 2011;37 (4) P62,878,291.81 on February 10, 2012; 38 and (5)
P59,639,167.90 on October 1, 2012;39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award 40 for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract41 on September 13, 2012,42 without the required publication and the lack of
architectural design,43 and approved the release of the funds therefor in the amounts of
P32,398,220.0544 and P30,582,629.3045 on December 20, 2012;  and 

Binay, Jr.'s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Building project in the amount of P27,443,629.97;47 and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building project in the amount of
P429,011.48.49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2 nd Special
Panel).50Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each of
the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits. 52

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six
(6) months without pay, during the pendency of the OMB Cases.53 The Ombudsman ruled that
the requisites for the preventive suspension of a public officer are present, 54 finding that: (a) the
evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds;
and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective positions
give them access to public records and allow them to influence possible witnesses; hence, their
continued stay in office may prejudice the investigation relative to the OMB Cases filed against
them.55 Consequently, the Ombudsman directed the Department of Interior and Local
Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately
implement the preventive suspension order against Binay, Jr., et al., upon receipt of the same.56

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff. 57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP
No. 139453, seeking the nullification of the preventive suspension order, and praying for the
issuance of a TRO and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous activity attending any of the
five (5) phases of the Makati Parking Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second term effectively condoned
his administrative liability therefor, if any, thus rendering the administrative cases against him
moot and academic.61In any event, Binay, Jr. claimed that the Ombudsman's preventive
suspension order failed to show that the evidence of guilt presented against him is strong,
maintaining that he did not participate in any of the purported irregularities. 62 In support of his
prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold
public office, having won by landslide vote in the 2010 and 2013 elections, and that, in view of
the condonation doctrine, as well as the lack of evidence to sustain the charges against him, his
suspension from office would undeservedly deprive the electorate of the services of the person
they have conscientiously chosen and voted into office.63

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region - Regional Director,
Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati
City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr.
(Peña, Jr.) who thereupon assumed office as Acting Mayor.64

At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay,
Jr.'s prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier
that day.67Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent
on its part to issue a TRO in view of the extreme urgency of the matter and seriousness of the
issues raised, considering that if it were established that the acts subject of the administrative
cases against Binay, Jr. were all committed during his prior term, then, applying the
condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be administratively
charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.'s petition
for certiorari .70

On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was
being restrained and that since the preventive suspension order had already been served and
implemented, there was no longer any act to restrain.72

On the same day, Binay, Jr. filed a petition for contempt,73  docketed as CA-G.R. SP No. 139504,
accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police, and
Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.74 The Ombudsman and Department of Justice Secretary
Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing
of the amended and supplemental petition for contempt75 (petition for contempt) on March 19,
2015.76 Among others, Binay, Jr. accused the Ombudsman and other respondents therein for
willfully and maliciously ignoring the TRO issued by the CA against the preventive suspension
order.77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s
petition for contempt, directed the Ombudsman to file her comment thereto.79 The cases were
set for hearing of oral arguments on March 30 and 31, 2015. 80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
Ombudsman filed the present petition before this Court, assailing the CA's March 16, 2015
Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March
20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for contempt in CA-
G.R. SP No. 139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay,
Jr.'s prayer for a TRO, citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which
states that no injunctive writ could be issued to delay the Ombudsman's investigation unless
there is prima facie evidence that the subject matter thereof is outside the latter's
jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s petition
for contempt is illegal and improper, considering that the Ombudsman is an impeachable
officer, and therefore, cannot be subjected to contempt proceedings. 84

In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave abuse
of discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this
case when said office issued the preventive suspension order against him.86 Binay, Jr. posits that
it was incumbent upon the Ombudsman to1 have been apprised of the condonation doctrine as
this would have weighed heavily in determining whether there was strong evidence to warrant
the issuance of the preventive suspension order.87 In this relation, Binay, Jr. maintains that the
CA correctly enjoined the implementation of the preventive suspension order given his clear
and unmistakable right to public office, and that it is clear that he could not be held
administratively liable for any of the charges against him since his subsequent re-election in
2013 operated as a condonation of any administrative offenses he may have committed during
his previous term.88 As regards the CA's order for the Ombudsman to comment on his petition
for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer
and, hence, cannot be removed from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment, without necessarily resulting in
removal from office. Thus, the fact that the Ombudsman is an impeachable officer should not
deprive the CA of its inherent power to punish contempt.89

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it
were held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation
of the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible
right to the final relief prayed for, namely, the nullification of the preventive suspension order,
in view of the condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007 to 2013. 93 In this
regard, the CA added that, although there were acts which were apparently committed by
Binay, Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July 24,
2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor
Garcia v. Mojica96 wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election. 97 To this, the CA added that
there was no concrete evidence of Binay, Jr.'s participation for the alleged payments made on
July 3, 4, and 24, 2013.98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for
purposes of issuing preventive suspension orders. The Ombudsman also maintained that a
reliance on the condonation doctrine is a matter of defense, which should have been raised by
Binay, Jr. before it during the administrative proceedings, and that, at any rate, there is no
condonation because Binay, Jr. committed acts subject of the OMB Complaint after his re-
election in 2013.100

On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda. 102 In compliance thereto,
the Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all
within ten (10) days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's
memoranda.106Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its desire to state its "institutional position." 108 In
her Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded,
among others, that this Court abandon the condonation doctrine.109 In view of the foregoing,
the case was deemed submitted for resolution.chanrobleslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted
before this Court, the main issues to be resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the assailed
CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy;cralawlawlibrary

II. Whether or not the CA has subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453;cralawlawlibrary

III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman;cralawlawlibrary

IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually,
the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive
suspension order against Binay, Jr. based on the condonation doctrine; and

V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.chanrobleslaw

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken

under Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain,
speedy, and adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court
prior to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the
ordinary course of law. The rationale for the pre-requisite is to grant an opportunity for the
lower court or agency to correct any actual or perceived error attributed to it by the re-
examination of the legal and factual circumstances of the case.110

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will
promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution
of the lower court or agency, x x x."111

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.112 These are: (a) where the order is a patent nullity, as where the
court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings
have been duly raised and passed upon by the lower court, or are the same as those raised and
passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the Government or of the
petitioner or the subject matter of the action is perishable; (d) where, under the circumstances,
a motion for reconsideration would be useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an
order of arrest is urgent and the granting of such relief by the trial court is improbable; (g)
where the proceedings in the lower court are a nullity for lack of due process; (h) where the
proceedings were ex parte or in which the petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or where public interest is involved.113

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the
first time, the question on the authority of the CA - and of this Court, for that matter - to enjoin
the implementation of a preventive suspension order issued by the Office of the Ombudsman is
put to the fore. This case tests the constitutional and statutory limits of the fundamental
powers of key government institutions - namely, the Office of the Ombudsman, the Legislature,
and the Judiciary - and hence, involves an issue of transcendental public importance that
demands no less than a careful but expeditious resolution. Also raised is the equally important
issue on the propriety of the continuous application of the condonation doctrine as invoked by
a public officer who desires exculpation from administrative liability. As such, the Ombudsman's
direct resort to certiorari and prohibition before this Court, notwithstanding her failure to move
for the prior reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP
No. 139504 before the CA, is justified.chanrobleslaw

II.

Albeit raised for the first time by the Ombudsman in her Memorandum, 114 it is nonetheless
proper to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings. The
rationale is that subject matter jurisdiction is conferred by law, and the lack of it affects the very
authority of the court to take cognizance of and to render judgment on the action.115 Hence, it
should be preliminarily determined if the CA indeed had subject matter jurisdiction over the
main CA-G.R. SP No. 139453 petition, as the same determines the validity of all subsequent
proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was given the
opportunity by this Court to be heard on this issue,116 as he, in fact, duly submitted his
opposition through his comment to the Ombudsman's Memorandum. 117 That being said, the
Court perceives no reasonable objection against ruling on this issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14,
RA 6770, or the Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court119) from issuing a writ of injunction to delay an investigation being conducted by
the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the
main action or merely a provisional remedy for and as an incident in the main
action."120 Considering the textual qualifier "to delay," which connotes a suspension of an action
while the main case remains pending, the "writ of injunction" mentioned in this paragraph
could only refer to injunctions of the provisional kind, consistent with the nature of a
provisional injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers,
Members of Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan.123

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with
the exception of the Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the main CA-
G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to
conduct a judicial review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear
what the phrase "application for remedy" or the word "findings" refers to; and (2) it does not
specify what procedural remedy is solely allowable to this Court, save that the same be taken
only against a pure question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be
sought in the words employed to express it, and that when found[,] it should be made to
govern, x x x. If the words of the law seem to be of doubtful import, it may then perhaps
become necessary to look beyond them in order to ascertain what was in the legislative mind at
the time the law was enacted; what the circumstances were, under which the action was taken;
what evil, if any, was meant to be redressed; x x x [a]nd where the law has contemporaneously
been put into operation, and in doing so a construction has necessarily been put upon it, this
construction, especially if followed for some considerable period, is entitled to great respect, as
being very probably a true expression of the legislative purpose, and is not lightly to be
overruled, although it is not conclusive."124

As an aid to construction, courts may avail themselves of the actual proceedings of the
legislative body in interpreting a statute of doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted,125 albeit not controlling in the interpretation of the law.126

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second 
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on
the matter of judicial review of her office's decisions or findings, is supposedly clear from the
following Senate deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition
for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review
or appeal from the decision of the Ombudsman would only be taken not on a petition for
review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult
to reverse the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of
facts of the Ombudsman would be almost conclusive if supported by substantial evidence.
Second, we would not unnecessarily clog the docket of the Supreme Court. So, it in effect will
be a very strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the
administrative remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Court only on  certiorari  ?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given
the right to exhaust his administrative remedies first before the Ombudsman can take the
appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method
of appeal from one of a petition for review to a petition for certiorari?
Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial
evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is
a matter of discretion on the part of the court, whether to give due course to the petition or
dismiss it outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of
discretion amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a
petition for review and a petition for certiorari ; because before, under the 1935 Constitution
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme Court said that by this change,
the court exercising judicial review will not inquire into the facts, into the evidence, because we
will not go deeply by way of review into the evidence on record but its authority will be limited
to a determination of whether the administrative agency acted without, or in excess of,
jurisdiction, or committed a grave abuse of discretion. So, I assume that that is the purpose of
this amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated,
Mr. President.
xxxx

The President. It is evident that there must be some final authority to render decisions.
Should it be the Ombudsman or should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and
has to be the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to
introduce an appropriate change during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be taken on a petition
for review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara
then dwells on the purpose of changing the method of review from one of a petition for review
to a petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.

Noticeably, these references to a "petition for review" and the proposed "petition
for certiorari" are nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier
mentioned that this provision, particularly its second paragraph, does not indicate what specific
procedural remedy one should take in assailing a decision or finding of the Ombudsman; it only
reveals that the remedy be taken to this Court based on pure questions of law. More so, it was
even commented upon during the oral arguments of this case129 that there was no debate or
clarification made on the current formulation of the second paragraph of Section 14, RA 6770
per the available excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that
the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to
another Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter
textually reflects the approval of Senator Angara's suggested amendment, i.e., that the
Ombudsman's decision or finding may be assailed in a petition for certiorari to this Court
(fourth paragraph), and further, his comment on the conclusive nature of the factual findings of
the Ombudsman, if supported by substantial evidence (third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice and shall be
entertained only on any of the following grounds:chanRoblesvirtualLawlibrary

(1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant.
The motion for reconsideration shall be resolved within three (3) days from
filing: Provided, That only one motion for reconsideration shall be
entertained.ChanRoblesVirtualawlibrary

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or
reprimand, suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within
ten (10) days from receipt of the written notice of the order, directive or decision or denial of
the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest
of justice may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-
known that under the present 1997 Rules of Civil Procedure, petitions for certiorari are
governed by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman
Act was passed way back in 1989130and, hence, before the advent of the 1997 Rules of Civil
Procedure.131 At that time, the governing 1964 Rules of Court,132 consistent with Section 27, RA
6770, referred to the appeal taken thereunder as a petition for certiorari , thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition forcertiorari ,
within fifteen (15) days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to the clerk of said court the
corresponding docketing fee. The petition shall not be acted upon without proof of service of a
copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the
meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any
appeal or application for remedy against the decision or findings of the Ombudsman, except
the Supreme Court, on pure question of law."    ;cralawlawlibrary

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any
decision or finding of the Ombudsman, and (b) "any application of remedy" (subject to the
exception below) against the same. To clarify, the phrase "application for remedy," being a
generally worded provision, and being separated from the term "appeal" by the disjunctive
"or",133 refers to any remedy (whether taken mainly or provisionally), except an appeal,
following the maxim generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense.134 By the same principle, the word "findings," which is also
separated from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision
or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law," whether under the 1964 Rules of
Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45 
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment
sought to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of
the petitioner's brief as filed in the Court of Appeals. A verified statement of the date when
notice of judgment and denial of the motion for reconsideration, if any, were received shall
accompany the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the Court of Appeals the elevation of the whole
record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45 
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorarifrom a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an
application for a writ of preliminary injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or proceeding at any time
during its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to which the
classifications of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and
law, relate to. In fact, there is no procedural rule, whether in the old or new Rules, which
grounds a Rule 65 petition on pure questions of law. Indeed, it is also a statutory construction
principle that the lawmaking body cannot be said to have intended the establishment of
conflicting and hostile systems on the same subject. Such a result would render legislation a
useless and idle ceremony, and subject the laws to uncertainty and unintelligibility. 135 There
should then be no confusion that the second paragraph of Section 14, RA 6770 refers to a Rule
45 appeal to this Court, and no other. In sum, the appropriate construction of this Ombudsman
Act provision is that all remedies against issuances of the Office of the Ombudsman are
prohibited, except the above-stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of
lower courts,136 and not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of
a Rule 45 appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the
remedy of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its
consent to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27,
RA 6770 (as above-cited), which was invalidated in the case of Fabian v.
Desiertoni137 (Fabian).138

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.139 Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and
ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure
of the Office of the Ombudsman) on the availability of appeal before the Supreme Court to
assail a decision or order of the Ombudsman in administrative cases. In Fabian, we invalidated
Section 27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules
implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from the
decisions or orders of the Ombudsman in administrative cases. We held that Section 27 of
R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court
without its advice and concurrence in violation of Section 30, Article VI of the Constitution; it
was also inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a
petition for review on certiorari shall apply only to a review of "judgments or final orders of
the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court,
or other courts authorized by law." We pointedly said:chanRoblesvirtualLawlibrary

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from
quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of
the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA
under the provisions of Rule 43.141 (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770142 - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence,143 it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,144Fabian should squarely apply since the above-stated Ombudsman Act provisions
are in part materia in that they "cover the same specific or particular subject matter,"145 that is,
the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the Ombudsman herself has
developed, the Court deems it proper to resolve this issue ex mero motu (on its own motion146).
This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by
a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of
the government and the judges are sworn to support its provisions, the courts are not at liberty
to overlook or disregard its commands or countenance evasions thereof. When it is clear , that
a statute transgresses the authority vested in a legislative body, it is the duty of the courts to
declare that the constitution, and not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in
the pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude
a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the court's own motion. The
Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where
that fact is developed. The court has a clearly recognized right to determine its own jurisdiction
in any proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,148 hence, unappealable.149

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances150 of the Ombudsman should be filed before the CA,
and not directly before this Court:

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension

order issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule
65 petition for certiorari filed by the public officer before the CA, the Court held that "[t]here
being a finding of grave abuse of discretion on the part of the Ombudsman, it was certainly
imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65." 152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition

for certiorariassailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review
in this case, i.e., a special civil action for certiorari before the Court of Appeals."154 In this
relation, it stated that while "a special civil action for Certiorari is within the concurrent original
jurisdiction of the Supreme Court and the Court of Appeals, such petition should be initially
filed with the Court of Appeals in observance of the doctrine of hierarchy of courts." Further,
the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled that the remedy
against final and unappealable orders of the Office of the Ombudsman in an administrative case
was a Rule 65 petition to the CA. The same verdict was reached in Ruivivar156(September 16,
2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction
over the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order, incidental to that
main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has
no jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in
conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it
from judicial intervention,"157particularly, "from injunctive reliefs traditionally obtainable from
the courts,"158 claiming that said writs may work "just as effectively as direct harassment or
political pressure would."159

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of

the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each
for Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may
likewise be appointed. (Emphasis supplied)

In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical
underpinnings of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a
constitutionally-mandated office to give it political independence and adequate powers to
enforce its mandate. Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the
Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to investigate,
on complaint or motu proprio, any administrative act of any administrative agency, including
any government-owned or controlled corporation. When the Office of the Tanodbayan was
reorganized in 1979, the powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to conduct preliminary
investigation of all cases cognizable by the Sandiganbayan, file the corresponding information,
and control the prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article
II and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:chanRoblesvirtualLawlibrary

Section 27. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives.161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to
Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to
further realize the vision of the Constitution. Section 21 of RA No. 6770
provides:chanRoblesvirtualLawlibrary

Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and
its subdivisions, instrumentalities, and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary

As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its
actions, although not squarely falling under the broad powers granted [to] it by the Constitution
and by RA No. 6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it
fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom
and partisan politics and from fear of external reprisal by making it an "independent" office, x
x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers.162 (Emphasis and
underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the
Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal
autonomy. In general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the extent that the absence of
'independence' would result in the impairment of their core functions"163;cralawlawlibrary

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only [of] the express mandate of the Constitution, but especially as
regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based";164 and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for

independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom
from the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution
on the Commission on Audit highlighted the developments in the past Constitutions geared
towards insulating the Commission on Audit from political pressure."165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office
of the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:

[T]he independent constitutional commissions have been consistently intended by the framers
to be independent from executive control or supervision or any form of political influence. At
least insofar as these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized
that the Constitutional Commissions, which have been characterized under the Constitution as
"independent," are not under the control of the President, even if they discharge functions
that are executive in nature. The Court declared as unconstitutional the President's act of
temporarily appointing the respondent in that case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that
the tenure of the commissioners of the independent Commission on Human Rights could not
be placed under the discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior
- but is similar in degree and kind - to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these offices fill the political interstices
of a republican democracy that are crucial to its existence and proper functioning. 166 (Emphases
and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy
or the Special Prosecutor, may be removed from office by the President for any of the grounds
provided for the removal of the Ombudsman, and after due process," partially unconstitutional
insofar as it subjected the Deputy Ombudsman to the disciplinary authority of the President for
violating the principle of independence. Meanwhile, the validity of Section 8 (2), RA 6770 was
maintained insofar as the Office of the Special Prosecutor was concerned since said office was
not considered to be constitutionally within the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys under the Constitution.167

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law,
unless the Constitution itself allows, or an amendment thereto is made;cralawlawlibrary

Second: fiscal autonomy, which means that the office "may not be obstructed from [its]
freedom to use or dispose of [its] funds for purposes germane to [its] functions; 168hence, its
budget cannot be strategically decreased by officials of the political branches of government so
as to impair said functions; and

Third: insulation from executive supervision and control, which means that those within the
ranks of the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."169

That being the case, the concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts
are apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to
all. Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power -
that is, a provisional writ of injunction against a preventive suspension order - clearly strays
from the concept's rationale of insulating the office from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it

remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from
extending provisional injunctive relief to delay any investigation conducted by her office.
Despite the usage of the general phrase "[n]o writ of injunction shall be issued by any court,"
the Ombudsman herself concedes that the prohibition does not cover the Supreme Court.170 As
support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I
would just like to inquire for the record whether below the Supreme Court, it is understood
that there is no injunction policy against the Ombudsman by lower courts. Or, is it necessary
to have a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to  certiorari  to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be
allowed to interfere. We had a very bad experience with even, let us say, the Forestry Code
where no injunction is supposed to be issued against the Department of Natural
Resources. Injunctions are issued right and left by RTC judges all over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the
Supreme Court's power of judicial review As a corollary, the Supreme Court may issue ancillary
mjunctive writs or provisional remedies in the exercise of its power of judicial review over
matters pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the
CA, however, the Ombudsman begs to differ.172

With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of this
provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings.173 More importantly, its resolution is clearly necessary to the complete disposition
of this case.174

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 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." 176 The
constitutional demarcation of the three fundamental powers of government is more commonly
known as the principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr.
(Belgica),177 the Court held that "there is a violation of the separation of powers principle when
one branch of government unduly encroaches on the domain of another." 178 In particular,
"there is a violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department's functions."179

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the
Supreme Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress.  Thus, through the passage of Batas Pambansa Bilang
(BP) 129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the
Regional Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts183were established. Later, through the passage of RA 1125,184 and
Presidential Decree No. (PD) 1486,185the Court of Tax Appeals, and the Sandiganbayan were
respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, exceptthat it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.

x x x xChanRoblesVirtualawlibrary
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter
jurisdiction was defined as "the authority 'to hear and determine cases of the general class to
which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and
the trial courts, through the passage of BP 129, as amended. 

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but

also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and
the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma,188 the doctrine was explained as
follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of

the writs an absolute, unrestrained freedom of choice of the court to which application
therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative
of the venue of appeals, and should also serve as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against the latter,
with the Court of Appeals.189

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law,
said court may then exercise its jurisdiction acquired over that case, which is called judicial
power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has
been defined as the "totality of powers a court exercises when it assumes jurisdiction and
hears and decides a case."190 Under Section 1, Article VIII of the 1987 Constitution, 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 Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the
1987 Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents
a broadening of f 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 they are 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. 192

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has

acquired over a particular case conforms to the limits and parameters of the rules of
procedure duly promulgated by this Court. In other words, procedure is the framework within
which judicial power is exercised. In Manila Railroad Co. v. Attorney-General,193 the Court
elucidated that "[t]he power or authority of the court over the subject matter existed and was
fixed before procedure in a given cause began. Procedure does not alter or change that power
or authority; it simply directs the manner in which it shall be fully and justly exercised.  To be
sure, in certain cases, if that power is not exercised in conformity with the provisions of the
procedural law, purely, the court attempting to exercise it loses the power to exercise it legally.
This does not mean that it loses jurisdiction of the subject matter." 194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution
reads:

Section 5. The Supreme Court shall have the following powers: 

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly
subjected to a power-sharing scheme with Congress.198 As it now stands, the 1987
Constitution textually altered the old provisions by deleting the concurrent power of Congress
to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with
the Framers' vision of institutionalizing a "[s]tronger and more independent judiciary."199

The records of the deliberations of the Constitutional Commission would show 200 that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the underprivileged^" in the
enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino
proposed to delete the former sentence and, instead, after the word "[underprivileged," place a
comma (,) to be followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee members
agreed to Commissioner Aquino's proposal to delete the phrase "the National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court" and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the
phrase with the concurrence of the National Assembly." The changes were approved, thereby
leading to the present lack of textual reference to any form of Congressional participation in
Section 5 (5), Article VIII, supra. The prevailing consideration was that "both bodies, the
Supreme Court and the Legislature, have their inherent powers."201

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also r granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took
away the power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading, practice and
procedure is no longer shared by this Court with Congress, more so with the
Executive.202 (Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate
procedural remedies needed for the reasonable exercise of every court's judicial power, the
provisional remedies of temporary restraining orders and writs of preliminary injunction
were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary because
they are mere incidents in and are dependent upon the result of the main action. It is well-
settled that the sole objectof a temporary restraining order or a writ of preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo203 until the merits of the case
can be heard. They are usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status quo of
the controversy before a full hearing can be had on the merits of the case. In other words, they
are preservative remedies for the protection of substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a main suit. 204 In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a
TRO and a WPI. A preliminary injunction is defined under Section 1,205 Rule 58, while Section
3206 of the same Rule enumerates the grounds for its issuance. Meanwhile, under Section
5207 thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary
injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its acquired
jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law 208 or by these rules, any
suitable process or mode of proceeding may be adopted which appears comfortable to the
spirit of the said law or rules.ChanRoblesVirtualawlibrary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or

jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"210 over "decisions, orders or resolutions of the RTCs in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction," 211 the
Court ruled that said power "should coexist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have
complete supervision over the acts of the latter:"212

A grant of appellate jurisdiction implies that there is included in it the power necessary to

exercise it effectively, to make all orders that ; will preserve the subject of the action, and to
give effect to the final determination of the appeal. It carries with it the power to protect that
jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its
appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to
the efficient and proper exercise of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might interfere with the proper exercise
of its rightful jurisdiction in cases pending before it.213 (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject
matter jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are
necessary to enable it to act effectively within such jurisdiction. These should be regarded as
powers which are inherent in its jurisdiction and the court must possess them in order to
enforce its rules of practice and to suppress any abuses of its process and to t defeat any
attempted thwarting of such process.
x x x x cralawlawlibrary

Indeed, courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are
essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court's jurisdiction
and render it effective in behalf of the litigants.214 (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that "where a general
power is conferred or duty enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred."215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts
deal with diverse matters over which they are thought to have intrinsic authority like
procedural [rule-making] and general judicial housekeeping. To justify the invocation or
exercise of inherent powers, a court must show that the powers are reasonably necessary to
achieve the specific purpose for which the exercise is sought. Inherent powers enable the
judiciary to accomplish its constitutionally mandated functions."216

In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which

prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage
license pending appeal,218 the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably

necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e
said while considering the rule making power and the judicial power to be one and the same
that ". . . the grant of judicial power [rule making power] to the courts by the constitution
carries with it, as a necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an

exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:
It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of
power, inherent power to do all things reasonably necessary to the administration of justice in
the case before it. In the exercise of this power, a court, when necessary in order to protect or
preserve the subject matter of the litigation, to protect its jurisdiction and to make its
judgment effective, may grant or issue a temporary injunction in aid of or ancillary to the
principal action.

The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview
of the legislature to grant or deny the power nor is it within the purview of the legislature to
shape or fashion circumstances under which this inherently judicial power may be or may not
be granted or denied.

This Court has historically recognized constitutional limitations upon the power of the
legislature to interfere with or to inhibit the performance of constitutionally granted and
inherently provided judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of
a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case before it. . ." This includes
the inherent power to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the
right to encroach upon the constitutionally granted powers of the judiciary. Once the
administrative action has ended and the right to appeal arises the legislature is void of any
right to control a subsequent appellate judicial proceeding. The judicial rules have come into
play and have preempted the field.219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it encroached
upon this Court's constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court,
are matters of procedure which belong exclusively within the province of this Court. Rule 58 of
the Rules of Court did not create, define, and regulate a right but merely prescribed the means
of implementing an existing right220 since it only provided for temporary reliefs to preserve the
applicant's right in esse which is threatened to be violated during the course of a pending
litigation. In the case of Fabian,211 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
procedure.ChanRoblesVirtualawlibrary

Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The
National Power Corporation from Payment of Filing/ Docket Fees;222 (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from Payment
of Legal Fees;223 and (c) Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v.
Cabato-Cortes224 While these cases involved legislative enactments exempting government
owned and controlled corporations and cooperatives from paying filing fees, thus, effectively
modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled
that the prerogative to amend, repeal or even establish new rules of procedure 225 solely
belongs to the Court, to the exclusion of the legislative and executive branches of
government. On this score, the Court described its authority to promulgate rules on pleading,
practice, and procedure as exclusive and "[o]ne of the safeguards of [its] institutional
independence."226

That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create
statutory courts under Section 1, Article VIII supra, does not result in an abnegation of the
Court's own power to promulgate rules of pleading, practice, and procedure under Section 5
(5), Article VIII supra. Albeit operatively interrelated, these powers are nonetheless
institutionally separate and distinct, each to be preserved under its own sphere of
authority. When Congress creates a court and delimits its jurisdiction, the procedure for
which its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The
first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives,227 because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly
the CA, stands under the relevant sections of BP 129 which were not shown to have been
repealed. Instead, through this provision, Congress interfered with a provisional remedy that
was created by this Court under its duly promulgated rules of procedure, which utility is both
integral and inherent to every court's exercise of judicial power. Without the Court's consent
to the proscription, as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus, stands to be a
violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by supervening events if no
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory.
Indeed, the force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a proceeding's course. As
earlier intimated, when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true meaning to the
judicial power contemplated by the Framers of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain unabridged, this, even by statute. Truth be told, the
policy against provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay)
mirrors the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under
the rubric of what is called provisional remedies, our resident expert because Justice Peralta is
not here so Justice Bersamin for a while. So provisional remedy you have injunction, x x x.
xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the
Constitution, if you have a copy of the Constitution, can you please read that provision? Section
5, Article VIII the Judiciary subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts..."

JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in
all courts. This is the power, the competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been
discussed with you by my other colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation
in an ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN: 
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be
rendered moot and academic, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
supplemental pleading called the bill of t particular [s]? It cannot, because that's part of
procedure...
ACTING SOLICITOR GENERAL HILBAY:
That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that
was created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A
rule of procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a
particular injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.
xxxx228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is
through the Constitution that the fundamental powers of government are established, limited
and defined, and by which these powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws must conform and to which
all persons, including the highest officials of the land, must defer." It would then follow that
laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.230

However, despite the ostensible breach of the separation of powers principle, the Court is not
oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well
as other statutory provisions of similar import. Thus, pending deliberation on whether or not to
adopt the same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against courts other than
the Supreme Court from issuing provisional injunctive writs to enjoin investigations conducted
by the Office of the Ombudsman, until it is adopted as part of the rules of procedure through an
administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first
paragraph of Section 14, RA 6770) without the Court's consent thereto, it remains that the CA
had the authority to issue the questioned injunctive writs enjoining the implementation of the
preventive suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it
under Section 9 (1), Chapter I of BP 129, as amended, and which it had already acquired over
the main CA-G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its
jurisdiction in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive
suspension order is a persisting objection to the validity of said injunctive writs. For its proper
analysis, the Court first provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an

administrative investigation. The purpose of the suspension order is to prevent the accused
from using his position and the powers and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the prosecution of the case against
him. If after such investigation, the charge is established and the person investigated is found
guilty of acts warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule
XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.

Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary

Not being a penalty, the period within which one is under preventive suspension is not
considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:chanRoblesvirtualLawlibrary

Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of
suspension imposed upon the employee found guilty.232(Emphases
supplied)ChanRoblesVirtualawlibrary

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c) the respondent's continued stay in
office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. (Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first

requirement:chanRoblesvirtualLawlibrary

(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;cralawlawlibrary

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against
him.233ChanRoblesVirtualawlibrary

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based
on the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term, then, following
settled jurisprudence, he can no longer be administratively charged." 235 Thus, the Court,
contemplating the application of the condonation doctrine, among others, cautioned, in the
said case, that "it would have been more prudent for [the appellate court] to have, at the very
least, on account of the extreme urgency of the matter and the seriousness of the issues raised
in the certiorari petition, issued a TRO x x x"236 during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the
preventive suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013.238 Moreover, the CA observed that although there
were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged
payments on July 3, 4, and 24, 2013,239 corresponding to the services of Hillmarc's and MANA -
still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,240 and Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was applied
by the Court although the payments were made after the official's election, reasoning that the
payments were merely effected pursuant to contracts executed before said re-election. 242

The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and
passed upon by her office during the administrative disciplinary proceedings.243 However, the
Court agrees with the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity with the ruling
in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453, 244 the CA did
not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the
evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453, 245it
appears that the CA found that the application of the condonation doctrine was already
sufficient to enjoin the implementation of the preventive suspension order. Again, there is
nothing aberrant with this since, as remarked in the same case of Governor Garcia, Jr., if it was
established that the acts subject of the administrative complaint were indeed committed during
Binay, Jr.'s prior term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been invoked by Binay, Jr. as
an exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if
the evidence of guilt against him was strong, at least for the purpose of issuing the subject
injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down,
the Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense."246

The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva
Ecija,247 (Pascual),  which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During his
second term, or on October 6, 1956, the Acting Provincial Governor filed administrative
charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable for
the acts charged against him since they were committed during his previous term of office, and
therefore, invalid grounds for disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and
when the case reached this Court on appeal, it recognized that the controversy posed a novel
issue - that is, whether or not an elective official may be disciplined for a wrongful act
committed by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably,
to differences in statutes and constitutional provisions, and also, in part, to a divergence of
views with respect to the question of whether the subsequent election or appointment
condones the prior misconduct."248Without going into the variables of these conflicting views
and cases, it proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove
one from office because of misconduct during a prior term, to which we fully
subscribe.249 (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17) states in the US have abandoned the
condonation doctrine.250 The Ombudsman aptly cites several rulings of various US State courts,
as well as literature published on the matter, to demonstrate the fact that the doctrine is not
uniformly applied across all state jurisdictions. Indeed, the treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from
his current term or office for misconduct which he allegedly committed in a prior term of office
is governed by the language of the statute or constitutional provision applicable to the facts of
a particular case (see In Re Removal of Member of Council Coppola).251 As an example, a Texas
statute, on the one hand, expressly allows removal only for an act committed during a present
term: "no officer shall be prosecuted or removed from office for any act he may have
committed prior to his election to office" (see State ex rel. Rowlings v. Loomis).252 On the other
hand, the Supreme Court of Oklahoma allows removal from office for "acts of commission,
omission, or neglect committed, done or omitted during a previous or preceding term of office"
(see State v. Bailey)253 Meanwhile, in some states where the removal statute is silent or unclear,
the case's resolution was contingent upon the interpretation of the phrase "in office." On one
end, the Supreme Court of Ohio strictly construed a removal statute containing the phrase
"misfeasance of malfeasance in office" and thereby declared that, in the absence of clear
legislative language making, the word "office" must be limited to the single term during which
the offense charged against the public officer occurred (see State ex rel. Stokes v. Probate Court
of Cuyahoga County)254 Similarly, the Common Pleas Court of Allegheny County, Pennsylvania
decided that the phrase "in office" in its state constitution was a time limitation with regard to
the grounds of removal, so that an officer could not be removed for misbehaviour which
occurred; prior to the taking of the office (see Commonwealth v. Rudman)255 The opposite was
construed in the Supreme Court of Louisiana which took the view that an officer's inability to
hold an office resulted from the commission of certain offenses, and at once rendered him unfit
to continue in office, adding the fact that the officer had been re-elected did not condone or
purge the offense (see State ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New
York, Apellate Division, Fourth Department, the court construed the words "in office" to refer
not to a particular term of office but to an entire tenure; it stated that the whole purpose of the
legislature in enacting the statute in question could easily be lost sight of, and the intent of the
law-making body be thwarted, if an unworthy official could not be removed during one term for
misconduct for a previous one (Newman v. Strobel).257
(2) For another, condonation depended on whether or not the public officer was a successor in
the same office for which he has been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to condonation doctrine, is premised
on the idea that each term of a re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus, infractions committed in a previous
term are grounds for removal because a re-elected incumbent has no prior term to speak
of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v. Common Council of Grand
Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263

(3) Furthermore, some State courts took into consideration the continuing nature of an offense
in cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,264 the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of
money illegally collected during the previous years are still retained by him." In State ex rel.
Beck v. Harvey265 the Supreme Court of Kansas ruled that "there is no necessity" of applying the
condonation doctrine since "the misconduct continued in the present term of office[;] [thus]
there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of
Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there remains
a continuing duty on the part of the defendant to make restitution to the country x x x, this
duty extends into the present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there
is a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous factors relevant to the debate
on condonation, an outright adoption of the doctrine in this jurisdiction would not have been
proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-
making. "[They] are not relied upon as precedents, but as guides of
interpretation."267 Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up
against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations against its
application.268 In other words, stare decisis becomes an intractable rule only when
circumstances exist to preclude reversal of standing precedent. 269 As the Ombudsman correctly
points out, jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature
that develops and devolves along with the society within which it thrives.270 In the words of a
recent US Supreme Court Decision, "[w]hat we can decide, we can undecide." 271

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided,
the legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the
1935 Constitution, which dated provisions do not reflect the experience of the Filipino People
under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of
course, the sheer impact of the condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer
was elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish
cause for removal and this is especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office, and disqualification
from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p.
248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex
rel.Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281
P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).

The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct,

thereby cutting the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to

the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs.
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.273(emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —

The Court should never remove a public officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they did this with knowledge of
his life and character, and that they disregarded or forgave his faults or misconduct, if he had
been guilty of any. It is not for the court, by reason of such faults or misconduct to practically
overrule the will of the people.274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the Philippines
as a community, and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court noted that it is only
the President who may pardon a criminal offense.

(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987

Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
proceedings.

(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According
to the Court, condonation prevented the elective official from being "hounded" by
administrative cases filed by his "political enemies" during a new term, for which he has to
defend himself "to the detriment of public service." Also, the Court mentioned that the
administrative liability condoned by re-election covered the execution of the contract and the
incidents related therewith.279

(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively
charged for his involvement in an anomalous contract for the supply of asphalt for Cebu City,
executed only four (4) days before the upcoming elections. The Court ruled that
notwithstanding the timing of the contract's execution, the electorate is presumed to have
known the petitioner's background and character, including his past misconduct; hence, his
subsequent re-election was deemed a condonation of his prior transgressions. More
importantly, the Court held that the determinative time element in applying the condonation
doctrine should be the time when the contract was perfected; this meant that as long as the
contract was entered into during a prior term, acts which were done to implement the same,
even if done during a succeeding term, do not negate the application of the condonation
doctrine in favor of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the
Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The

condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days before
the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior
term, the precise timing or period of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public official's culpability was committed prior to the date of
reelection.282 (Emphasis supplied)ChanRoblesVirtualawlibrary

The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation

doctrine would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary
restraining order against the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,

and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis
for condonation under the prevailing constitutional and statutory framework was never
accounted for. What remains apparent from the text of these cases is that the basis for
condonation, as jurisprudential doctrine, was - and still remains - the above-cited postulates
of Pascual, which was lifted from rulings of US courts where condonation was amply supported
by their own state laws. With respect to its applicability to administrative cases, the core
premise of condonation - that is, an elective official's re-election cuts qff the right to remove
him for an administrative offense committed during a prior term - was adopted hook, line, and
sinker in our jurisprudence largely because the legality of that doctrine was never tested
against existing legal norms. As in the US, the propriety of condonation is - as it should be
-dependent on the legal foundation of the adjudicating jurisdiction. Hence, the Court
undertakes an examination of our current laws in order to determine if there is legal basis for
the continued application of the doctrine of condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;284 thus, the unbending rule is that every statute should be read in light of the
Constitution.285 Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.286

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided

within the context of the 1935 Constitution which was silent with respect to public
accountability, or of the nature of public office being a public trust. The provision in the 1935
Constitution that comes closest in dealing with public office is Section 2, Article II which states
that "[t]he defense of the State is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service." 287 Perhaps
owing to the 1935 Constitution's silence on public accountability, and considering the dearth of
jurisprudential rulings on the matter, as well as the variance in the policy considerations, there
was no glaring objection confronting the Pascual Court in adopting the condonation doctrine
that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers
underwent a significant change. The new charter introduced an entire article on accountability
of public officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged,
and declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and
employees shall serve with the highest degree of responsibility, integrity, loyalty and
efficiency, and shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted
the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in
Article II that "[t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."288 Learning how unbridled
power could corrupt public servants under the regime of a dictator, the Framers put primacy on
the integrity of the public service by declaring it as a constitutional principle and a State policy.
More significantly, the 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be accountable to the
people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all timesbe
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency and act with patriotism and justice, and lead modest
lives.ChanRoblesVirtualawlibrary

In Belgica, it was explained that:

[t]he 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 x x x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary

The same mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission,290 and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.291

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an
elective local official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise
known as the "Local Government Code of 1991" (LGC), which was approved on October 10
1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following
grounds:chanRoblesvirtualLawlibrary

(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary

(b) Culpable violation of the Constitution;cralawlawlibrary
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
duty;cralawlawlibrary
(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;cralawlawlibrary
(e) Abuse of authority;cralawlawlibrary
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;cralawlawlibrary
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by
order of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective
local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of

retirement benefits, perpetual disqualification from holding public office, and bar from
taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as
he meets the qualifications required for the office. Note, however, that the provision only
pertains to the duration of the penalty and its effect on the official's candidacy. Nothing therein
states that the administrative liability therefor is extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x. 

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the qualifications required for
the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a
misconduct committed during a prior term can be wiped off by the fact that he was elected to a
second term of office, or even another elective post. Election is not a mode of condoning an
administrative offense, and there is simply no constitutional or statutory basis in our
jurisdiction to support the notion that an official elected for a different term is fully absolved of
any administrative liability arising from an offense done during a prior term. In this
jurisdiction, liability arising from administrative offenses may be condoned bv the President in
light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v.
Orbos293 to apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same token, if
executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of
the Constitution. Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes
condonation since in the first place, an elective local official who is meted with the penalty of
removal could not be re-elected to an elective local position due to a direct disqualification
from running for such post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of
perpetual disqualification from holding public office as an accessory to the penalty of dismissal
from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions

wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term,294 or that the disqualification to hold the office
does not extend beyond the term in which the official's delinquency occurred. 295 In one
case,296 the absence of a provision against the re-election of an officer removed - unlike Section
40 (b) of the LGC-was the justification behind condonation. In another case, 297 it was deemed
that condonation through re-election was a policy under their constitution - which adoption in
this jurisdiction runs counter to our present Constitution's requirements on public
accountability. There was even one case where the doctrine of condonation was not
adjudicated upon but only invoked by a party as a ground;298 while in another case, which was
not reported in full in the official series, the crux of the disposition was that the evidence of a
prior irregularity in no way pertained to the charge at issue and therefore, was deemed to be
incompetent.299Hence, owing to either their variance or inapplicability, none of these cases can
be used as basis for the continued adoption of the condonation doctrine under our existing
laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of

suspension beyond the unexpired portion of the elective local official's prior term, and likewise
allows said official to still run for re-election This treatment is similar to People ex rel Bagshaw
v. Thompson300 and Montgomery v. Novell301 both cited in Pascual, wherein it was ruled that an
officer cannot be suspended for a misconduct committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states that the elective local official's administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts
would be depriving the electorate of their right to elect their officers if condonation were not to
be sanctioned. In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no
legal basis to conclude that election automatically implies condonation. Neither is there any
legal basis to say that every democratic and republican state has an inherent regime of
condonation. If condonation of an elective official's administrative liability would perhaps, be
allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it
been shown that such a law, whether in a constitutional or statutory provision, exists.
Therefore, inferring from this manifest absence, it cannot be said that the electorate's will has
been abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule. 302 Besides, it is contrary to human
experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the public. Misconduct committed by an elective
official is easily covered up, and is almost always unknown to the electorate when they cast
their votes.303 At a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey
Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done
in a preceding term of office are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it does forgiveness, connotes
knowledge and in the absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by
the CA.
It should, however, be clarified that this Court's abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall form part of the legal system of
the Philippines.305 Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v.
Judicial Bar Council.306

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.307

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v.
Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the Philippines." But while our decisions
form part of the law of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not
backward. The rationale against retroactivity is easy to perceive. The retroactive application of
a law usually divests rights that have already become vested or impairs the obligations of
contract and hence, is unconstitutional.310ChanRoblesVirtualawlibrary

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is
barren of legal anchorage was able to endure in our jurisprudence for a considerable length of
time, this Court, under a new membership, takes up the cudgels and now abandons the
condonation doctrine.
E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.311 It has also been held that "grave abuse of
discretion arises when a lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence."312

As earlier established, records disclose that the CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA committed a
grave abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him,
the said CA petition appears to have been mooted.313 As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding
the validity of the preventive suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, '"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."314 All of these scenarios obtain
in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine now that its infirmities have become apparent.
As extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to the people at all
times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
officials throughout the years, it is indubitable that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only
involve an in-depth exegesis of administrative law principles, but also puts to the forefront of
legal discourse the potency of the accountability provisions of the 1987 Constitution. The Court
owes it to the bench, the bar, and the public to explain how this controversial doctrine came
about, and now, its reasons for abandoning the same in view of its relevance on the parameters
of public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that "for the period of July 2013 to December 2014 alone,
85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on the
ground of condonation. Thus, in just one and a half years, over a hundred cases of alleged
misconduct - involving infractions such as dishonesty, oppression, gross neglect of duty and
grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."315 Evidently, this fortifies the finding that the case is capable of
repetition and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render
the subject of discussion moot.chanrobleslaw

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the
final issue on whether or not the CA's Resolution316 dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt317 because this action is criminal in nature and
the penalty therefor would result in her effective removal from office.318 However, a reading of
the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive
for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s
contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon.
Conchita Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior
and Local Government] are hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of
three (3) days from receipt hereof. (Emphasis and underscoring
supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she
may properly raise her objections to the contempt proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt not to
give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put,
absent any indication that the contempt petition has been given due course by the CA, it would
then be premature for this Court to rule on the issue. The submission of the Ombudsman on
this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court
resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

declared UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive
writs by courts other than the Supreme Court to enjoin an investigation conducted by the Office
of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure through an administrative circular
duly issued therefor;cralawlawlibrary

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;cralawlawlibrary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay,
Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-
C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost
dispatch.

SO ORDERED
G.R. No. 191644               February 19, 2013

DENNIS A.B. FUNA, Petitioner, 

vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES
AS ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR
GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.

DECISION

BERSAMIN, J.:

Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-President,
the Members of the Cabinet, and their deputies or assistants from holding any other office or
employment during their tenure unless otherwise provided in the Constitution. Complementing
the prohibition is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans any
appointive official from holding any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, unless otherwise allowed by law or the primary functions of
his position.

These prohibitions under the Constitution are at the core of this special civil action
for certiorari and prohibition commenced on April 7, 2010 to assail the designation of
respondent Hon. Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the
Acting Solicitor General.

Antecedents

The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST
Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010,
President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity; 1 that
on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality of Agra’s concurrent appointments or
designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution;
that during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor General and
commenced his duties as such on August 5, 2010.2

Agra renders a different version of the antecedents. He represents that on January 12, 2010, he
was then the Government Corporate Counsel when President Arroyo designated him as the
Acting Solicitor General in place of Solicitor General Devanadera who had been appointed as
the Secretary of Justice;3 that on March 5, 2010, President Arroyo designated him also as the
Acting Secretary of Justice vice Secretary Devanadera who had meanwhile tendered her
resignation in order to run for Congress representing a district in Quezon Province in the May
2010 elections; that he then relinquished his position as the Government Corporate Counsel;
and that pending the appointment of his successor, Agra continued to perform his duties as the
Acting Solicitor General.4

Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for
purposes of resolving the constitutional question that petitioner raises herein.

The Case

In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition

and mandamus brought by herein petitioner assailing the constitutionality of the designation of
then Undersecretary of the Department of Transportation and Communications (DOTC) Maria
Elena H. Bautista as concurrently the Officer-in-Charge of the Maritime Industry Authority. The
petitioner has adopted here the arguments he advanced in Funa v. Ermita, and he has rested
his grounds of challenge mainly on the pronouncements in Civil Liberties Union v. Executive
Secretary6and Public Interest Center, Inc. v. Elma.7

What may differentiate this challenge from those in the others is that the appointments being
hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between
an appointment or designation of a Member of the Cabinet in an acting or temporary capacity,
on the one hand, and one in a permanent capacity, on the other hand; and that Acting
Secretaries, being nonetheless Members of the Cabinet, are not exempt from the constitutional
ban. He emphasizes that the position of the Solicitor General is not an ex officio position in
relation to the position of the Secretary of Justice, considering that the Office of the Solicitor
General (OSG) is an independent and autonomous office attached to the Department of Justice
(DOJ).8 He insists that the fact that Agra was extended an appointment as the Acting Solicitor
General shows that he did not occupy that office in an ex officio capacity because an ex
officio position does not require any further warrant or appointment.

Respondents contend, in contrast, that Agra’s concurrent designations as the Acting Secretary
of Justice and Acting Solicitor General were only in a temporary capacity, the only effect of
which was to confer additional duties to him. Thus, as the Acting Solicitor General and Acting
Secretary of Justice, Agra was not "holding" both offices in the strict constitutional sense. 9 They
argue that an appointment, to be covered by the constitutional prohibition, must be regular
and permanent, instead of a mere designation.

Respondents further contend that, even on the assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General
was akin to a hold-over; that upon Agra’s designation as the Acting Secretary of Justice, his
term as the Acting Solicitor General expired in view of the constitutional prohibition against
holding of multiple offices by the Members of the Cabinet; that under the principle of hold-
over, Agra continued his service as the Acting Solicitor General "until his successor is elected
and qualified"10 to "prevent a hiatus in the government pending the time when a successor may
be chosen and inducted into office;"11 and that during his continued service as the Acting
Solicitor General, he did not receive any salaries and emoluments from the OSG after becoming
the Acting Secretary of Justice on March 5, 2010.12

Respondents point out that the OSG’s independence and autonomy are defined by the powers
and functions conferred to that office by law, not by the person appointed to head such
office;13 and that although the OSG is attached to the DOJ, the DOJ’s authority, control and
supervision over the OSG are limited only to budgetary purposes.14

In his reply, petitioner counters that there was no "prevailing special circumstance" that
justified the non-application to Agra of Section 13, Article VII of the 1987 Constitution; 15 that
the temporariness of the appointment or designation is not an excuse to disregard the
constitutional ban against holding of multiple offices by the Members of the Cabinet; 16 that
Agra’s invocation of the principle of hold-over is misplaced for being predicated upon an
erroneous presentation of a material fact as to the time of his designation as the Acting
Solicitor General and Acting Secretary of Justice; that Agra’s concurrent designations further
violated the Administrative Code of 1987 which mandates that the OSG shall be autonomous
and independent.17

Issue

Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices for
the Members of the Cabinet and their deputies and assistants?

Ruling

The petition is meritorious.

The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.

1.

Requisites of judicial review not in issue

The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to assail the validity of the subject act or issuance, that is, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.18

Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution
by the Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a
taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has already been settled
in his favor in rulings by the Court on several other public law litigations he brought. In Funa v.
Villar,19 for one, the Court has held:

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted liberally
on the locus standi requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus standi is after all a
mere procedural technicality in relation to which the Court, in a catena of cases involving a
subject of transcendental import, has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by the operation of a law or any
other government act. In David, the Court laid out the bare minimum norm before the so-
called "non-traditional suitors" may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of the election law in
question;

3.) For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.20 (Bold emphasis supplied)

In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a

concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.

But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit render this suit and the issue tendered herein
moot and academic?
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or
value.22 Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the issue
of the constitutionality of the concurrent holding of the two positions by Agra, the Court should
still go forward and resolve the issue and not abstain from exercising its power of judicial
review because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized exceptions
obtained, namely: (1) there was a grave violation of the Constitution; (2) the case involved a
situation of exceptional character and was of paramount public interest; (3) the constitutional
issue raised required the formulation of controlling principles to guide the Bench, the Bar and
the public; and (4) the case was capable of repetition, yet evading review. 23

It is the same here. The constitutionality of the concurrent holding by Agra of the two positions
in the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized
exceptions. The issue involves a probable violation of the Constitution, and relates to a situation
of exceptional character and of paramount public interest by reason of its transcendental
importance to the people. The resolution of the issue will also be of the greatest value to the
Bench and the Bar in view of the broad powers wielded through said positions. The situation
further calls for the review because the situation is capable of repetition, yet evading
review.24 In other words, many important and practical benefits are still to be gained were the
Court to proceed to the ultimate resolution of the constitutional issue posed.

2.

Unconstitutionality of Agra’s concurrent designation as Acting Secretary of Justice and Acting

Solicitor General

At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:

Section 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a
case in which the petitioner herein also assailed the designation of DOTC Undersecretary as
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary26 on the intent of the Framers
behind these provisions of the Constitution, viz:

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet, their deputies
and assistants.

xxxx

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII. (Bold emphasis supplied.)

Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27

It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of
Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or
government controlled-corporations was concerned.28 In this regard, to hold an office means to
possess or to occupy the office, or to be in possession and administration of the office, which
implies nothing less than the actual discharge of the functions and duties of the office. 29 Indeed,
in the language of Section 13 itself, supra, the Constitution makes no reference to the nature of
the appointment or designation. The prohibition against dual or multiple offices being held by
one official must be construed as to apply to all appointments or designations, whether
permanent or temporary, for it is without question that the avowed objective of Section
13, supra, is to prevent the concentration of powers in the Executive Department officials,
specifically the President, the Vice-President, the Members of the Cabinet and their deputies
and assistants.30 To construe differently is to "open the veritable floodgates of circumvention of
an important constitutional disqualification of officials in the Executive Department and of
limitations on the President’s power of appointment in the guise of temporary designations of
Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of
government agencies, instrumentalities, or government-owned or controlled corporations." 31

According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the holding of
multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13, Article VII without additional compensation in ex
officio capacities as provided by law and as required by the primary functions of the officials’
offices. In this regard, the decision in Public Interest Center, Inc. v. Elma adverted to the
resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary, whereby
the Court held that the phrase "the Members of the Cabinet, and their deputies or assistants"
found in Section 13, supra, referred only to the heads of the various executive departments,
their undersecretaries and assistant secretaries, and did not extend to other public officials
given the rank of Secretary, Undersecretary or Assistant Secretary. 33 Hence, in Public Interest
Center, Inc. v. Elma, the Court opined that the prohibition under Section 13 did not cover Elma,
a Presidential Assistant with the rank of Undersecretary. 34

It is equally remarkable, therefore, that Agra’s designation as the Acting Secretary of Justice
was not in an ex officio capacity, by which he would have been validly authorized to
concurrently hold the two positions due to the holding of one office being the consequence of
holding the other. Being included in the stricter prohibition embodied in Section 13, supra, Agra
cannot liberally apply in his favor the broad exceptions provided in Section 7, paragraph 2,
Article IX-B of the Constitution ("Unless otherwise allowed by law or the primary functions of
his position") to justify his designation as Acting Secretary of Justice concurrently with his
designation as Acting Solicitor General, or vice versa. Thus, the Court has said –

[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding other offices or employment in
the government during their tenure. Respondents’ interpretation that Section 13 of Article VII
admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the highranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and
the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their
tenure.35

To underscore the obvious, it is not sufficient for Agra to show that his holding of the other
office was "allowed by law or the primary functions of his position." To claim the exemption of
his concurrent designations from the coverage of the stricter prohibition under Section
13, supra, he needed to establish herein that his concurrent designation was expressly allowed
by the Constitution. But, alas, he did not do so.

To be sure, Agra’s concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his
concurrent designations been in an ex officio capacity in relation to the other, the Court might
now be ruling in his favor.

The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other appointment or
authority other than that conferred by the office." An ex officio member of a board is one who
is a member by virtue of his title to a certain office, and without further warrant or
appointment. x x x.

xxxx

The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. x x x.

Under the Administrative Code of 1987, the DOJ is mandated to "provide the government with
a principal law agency which shall be both its legal counsel and prosecution arm; administer the
criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
system; implement the laws on the admission and stay of aliens, citizenship, land titling system,
and settlement of land problems involving small landowners and members of indigenous
cultural minorities; and provide free legal services to indigent members of the society." 37 The
DOJ’s specific powers and functions are as follows:

(1) Act as principal law agency of the government and as legal counsel and representative
thereof, whenever so required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;

(3) Extend free legal assistance/representation to indigents and poor litigants in criminal cases
and non-commercial civil disputes;

(4) Preserve the integrity of land titles through proper registration;

(5) Investigate and arbitrate untitled land disputes involving small landowners and members of
indigenous cultural communities;

(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned or controlled corporations and their subsidiaries; and

(8) Perform such other functions as may be provided by law.38

On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor
General the following powers and functions, to wit:

The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the President or
head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall discharge duties requiring the services of
lawyers. It shall have the following specific powers and functions:

1. Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party.

2. Investigate, initiate court action, or in any manner proceed against any person, corporation
or firm for the enforcement of any contract, bond, guarantee, mortgage, pledge or other
collateral executed in favor of the Government. Where proceedings are to be conducted
outside of the Philippines the Solicitor General may employ counsel to assist in the discharge of
the aforementioned responsibilities.

3. Appear in any court in any action involving the validity of any treaty, law, executive order or
proclamation, rule or regulation when in his judgment his intervention is necessary or when
requested by the Court.

4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.

5. Represent the Government in all land registration and related proceedings. Institute actions
for the reversion to the Government of lands of the public domain and improvements thereon
as well as lands held in violation of the Constitution.

6. Prepare, upon request of the President or other proper officer of the National Government,
rules and guidelines for government entities governing the preparation of contracts, making
investments, undertaking of transactions, and drafting of forms or other writings needed for
official use, with the end in view of facilitating their enforcement and insuring that they are
entered into or prepared conformably with law and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest requires, any
provincial or city fiscal to assist him in the performance of any function or discharge of any duty
incumbent upon him, within the jurisdiction of the aforesaid provincial or city fiscal. When so
deputized, the fiscal shall be under the control and supervision of the Solicitor General with
regard to the conduct of the proceedings assigned to the fiscal, and he may be required to
render reports or furnish information regarding the assignment.

8. Deputize legal officers of government departments, bureaus, agencies and offices to assist
the Solicitor General and appear or represent the Government in cased involving their
respective offices, brought before the courts and exercise supervision and control over such
legal Officers with respect to such cases.

9. Call on any department, bureau, office, agency or instrumentality of the Government for
such service, assistance and cooperation as may be necessary in fulfilling its functions and
responsibilities and for this purpose enlist the services of any government official or employee
in the pursuit of his tasks.

10. Departments, bureaus, agencies, offices, instrumentalities and corporations to whom the
Office of the Solicitor General renders legal services are authorized to disburse funds from their
sundry operating and other funds for the latter Office. For this purpose, the Solicitor General
and his staff are specifically authorized to receive allowances as may be provided by the
Government offices, instrumentalities and corporations concerned, in addition to their regular
compensation.

11. Represent, upon the instructions of the President, the Republic of the Philippines in
international litigations, negotiations or conferences where the legal position of the Republic
must be defended or presented.

12. Act and represent the Republic and/or the people before any court, tribunal, body or
commission in any matter, action or proceedings which, in his opinion affects the welfare of the
people as the ends of justice may require; and

13. Perform such other functions as may be provided by law.39

The foregoing provisions of the applicable laws show that one position was not derived from
the other. Indeed, the powers and functions of the OSG are neither required by the primary
functions nor included by the powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ,40 is not a constituent unit of the latter,41 as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and autonomous. 42 With the enactment of Republic
Act No. 9417,43 the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and privileges
as those of the Presiding Justice of the Court of Appeals.44

Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear.
Apart from the sure peril of political pressure, the concurrent holding of the two positions, even
if they are not entirely incompatible, may affect sound government operations and the proper
performance of duties. Heed should be paid to what the Court has pointedly observed in Civil
Liberties Union v. Executive Secretary: 45

Being head of an executive department is no mean job. It is more than a full-time job, requiring
full attention, specialized knowledge, skills and expertise. If maximum benefits are to be
derived from a department head’s ability and expertise, he should be allowed to attend to his
duties and responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and energy among
too many positions of responsibility, which may result in haphazardness and inefficiency. Surely
the advantages to be derived from this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic development, far outweigh the benefits,
if any, that may be gained from a department head spreading himself too thin and taking in
more than what he can handle.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being
merely vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless
remained covered by the general prohibition under Section 7, supra. Hence, his concurrent
designations were still subject to the conditions under the latter constitutional provision. In this
regard, the Court aptly pointed out in Public Interest Center, Inc. v. Elma:46

The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official
to hold more than one office only if "allowed by law or by the primary functions of his position."
In the case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection to a
government official occupying two government offices and performing the functions of both as
long as there is no incompatibility." The crucial test in determining whether incompatibility
exists between two offices was laid out in People v. Green - whether one office is subordinate
to the other, in the sense that one office has the right to interfere with the other.

[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x

Where one office is not subordinate to the other, nor the relations of the one to the other such
as are inconsistent and repugnant, there is not that incompatibility from which the law declares
that the acceptance of the one is the vacation of the other. The force of the word, in its
application to this matter is, that from the nature and relations to each other, of the two places,
they ought not to be held by the same person, from the contrariety and antagonism which
would result in the attempt by one person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other. X x x The offices must subordinate, one [over] the
other, and they must, per se, have the right to interfere, one with the other, before they are
incompatible at common law. x x x.

xxxx

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of the prohibition provided in Section 13, Article
VII of the 1987 Constitution. Citing the case of US v. Mouat, it specifically identified the persons
who are affected by this prohibition as secretaries, undersecretaries and assistant secretaries;
and categorically excluded public officers who merely have the rank of secretary,
undersecretary or assistant secretary.

Another point of clarification raised by the Solicitor General refers to the persons affected by
the constitutional prohibition. The persons cited in the constitutional provision are the
"Members of the Cabinet, their deputies and assistants." These terms must be given their
common and general acceptation as referring to the heads of the executive departments, their
undersecretaries and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the
Solicitor General affected thereby. (Italics supplied).

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a
secretary, undersecretary, nor an assistant secretary, even if the former may have the same
rank as the latter positions.

It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of
the 1987 Constitution to respondent Elma, he remains covered by the general prohibition
under Section 7, Article IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his appointments are hereby
pronounced in violation of the Constitution.47

Clearly, the primary functions of the Office of the Solicitor General are not related or necessary
to the primary functions of the Department of Justice. Considering that the nature and duties of
the two offices are such as to render it improper, from considerations of public policy, for one
person to retain both,48 an incompatibility between the offices exists, further warranting the
declaration of Agra’s designation as the Acting Secretary of Justice, concurrently with his
designation as the Acting Solicitor General, to be void for being in violation of the express
provisions of the Constitution.

3.

Effect of declaration of unconstitutionality of Agra’s concurrent appointment; the de

facto officer doctrine

In view of the application of the stricter prohibition under Section 13, supra, Agra did not validly
hold the position of Acting Secretary of Justice concurrently with his holding of the position of
Acting Solicitor General. Accordingly, he was not to be considered as a de jure officer for the
entire period of his tenure as the Acting Secretary of Justice. A de jure officer is one who is
deemed, in all respects, legally appointed and qualified and whose term of office has not
expired.49

That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
Justice. In Civil Liberties Union v. Executive Secretary,50 the Court said:

During their tenure in the questioned positions, respondents may be considered de

facto officers and as such entitled to emoluments for actual services rendered. It has been held
that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the salary, fees and
other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. 51 He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public
or third persons who are interested therein are concerned. 53

In order to be clear, therefore, the Court holds that all official actions of Agra as a de
facto Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office. 54 This
clarification is necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State. 55 Agra's official actions covered
by this claritlcation extend to but are not limited to the promulgation of resolutions on petitions
for review filed in the Department of Justice, and the issuance of department orders,
memoranda and circulars relative to the prosecution of criminal cases.

WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND

VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent
capacity with his position as the Acting Solicitor General for being unconstitutional and violative
of Section 13, Article VII of the 1987 Constitution; and DECLARES that l-Ion. Alberto C. Agra was
a de facto officer during his tenure as Acting Secretary of Justice.

No pronouncement on costs of suit.

SO ORDERED.

G.R. No. 208566               November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M.
ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners, 
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT
and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity
as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

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

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner, 
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the
subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings
before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger with
morsels coming from the generosity of their well-fed master. 4 This practice was later compared
to the actions of American legislators in trying to direct federal budgets in favor of their
districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it persists
in reference to political bills that "bring home the bacon" to a legislator‘s district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of government
spending meant for localized projects and secured solely or primarily to bring money to a
representative's district.7Some scholars on the subject further use it to refer to legislative
control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of a joint committee elected by the
Senate and the House of Representatives. "The committee from each House may also authorize
one of its members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides that the
said secretary, "with the approval of said joint committee, or of the authorized members
thereof, may, for the purposes of said distribution, transfer unexpended portions of any item of
appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation broadened from

the areas of fund release and realignment to the area of project identification. During that year,
the mechanics of the public works act was modified to the extent that the discretion of
choosing projects was transferred from the Secretary of Commerce and Communications to
legislators. "For the first time, the law carried a list of projects selected by Members of
Congress, they ‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this period, the pork barrel process
commenced with local government councils, civil groups, and individuals appealing to
Congressmen or Senators for projects. Petitions that were accommodated formed part of a
legislator‘s allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the administration bill
prepared by the Department of Public Works and Communications. Thereafter, the Senate and
the House of Representatives added their own provisions to the bill until it was signed into law
by the President – the Public Works Act.17 In the 1960‘s, however, pork barrel legislation
reportedly ceased in view of the stalemate between the House of Representatives and the
Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature," 19 the reprieve was
only temporary. By 1982, the Batasang Pambansa had already introduced a new item in the
General Appropriations Act (GAA) called the" Support for Local Development Projects" (SLDP)
under the article on "National Aid to Local Government Units". Based on reports, 20 it was under
the SLDP that the practice of giving lump-sum allocations to individual legislators began, with
each assemblyman receiving ₱500,000.00. Thereafter, assemblymen would communicate their
project preferences to the Ministry of Budget and Management for approval. Then, the said
ministry would release the allocation papers to the Ministry of Local Governments, which
would, in turn, issue the checks to the city or municipal treasurers in the assemblyman‘s
locality. It has been further reported that "Congressional Pork Barrel" projects under the SLDP
also began to cover not only public works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which would fall under the categories of,
among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and
the "Visayas Development Fund" which were created with lump-sum appropriations of ₱480
Million and ₱240 Million, respectively, for the funding of development projects in the
Mindanao and Visayas areas in 1989. It has been documented 23 that the clamor raised by the
Senators and the Luzon legislators for a similar funding, prompted the creation of the
"Countrywide Development Fund" (CDF) which was integrated into the 1990 GAA24 with an
initial funding of ₱2.3 Billion to cover "small local infrastructure and other priority community
projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the submission
of the required list of projects and activities."Although the GAAs from 1990 to 1992 were silent
as to the amounts of allocations of the individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992, Representatives were receiving
₱12.5 Million each in CDF funds, while Senators were receiving ₱18 Million each, without any
limitation or qualification, and that they could identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and buildings to "soft projects" such as
textbooks, medicines, and scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to
be made upon the submission of the list of projects and activities identified by, among others,
individual legislators. For the first time, the 1993 CDF Article included an allocation for the Vice-
President.29 As such, Representatives were allocated ₱12.5 Million each in CDF funds, Senators,
₱18 Million each, and the Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification
and fund release as found in the 1993 CDF Article. In addition, however, the Department of
Budget and Management (DBM) was directed to submit reports to the Senate Committee on
Finance and the House Committee on Appropriations on the releases made from the funds. 33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation
with the implementing agency concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations which shall be duly endorsed by
(a) the Senate President and the Chairman of the Committee on Finance, in the case of the
Senate, and (b) the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations, in the case of the House of Representatives; while the list for the
remaining 50% was to be submitted within six (6) months thereafter. The same article also
stated that the project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for projects not
included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s political
agenda.37 It has been articulated that since CIs "formed part and parcel of the budgets of
executive departments, they were not easily identifiable and were thus harder to monitor."
Nonetheless, the lawmakers themselves as well as the finance and budget officials of the
implementing agencies, as well as the DBM, purportedly knew about the insertions. 38 Examples
of these CIs are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Niño Fund, and the Poverty Alleviation
Fund.39 The allocations for the School Building Fund, particularly, ―shall be made upon prior
consultation with the representative of the legislative district concerned.” 40 Similarly, the
legislators had the power to direct how, where and when these appropriations were to be
spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44and the "Rural/Urban Development Infrastructure Program Fund," 45 all of which
contained a special provision requiring "prior consultation" with the Member s of Congress for
the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in
the GAA. The requirement of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the implementing agency concerned was
explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any expense
category was expressly allowed, with the sole condition that no amount shall be used to fund
personal services and other personnel benefits.47 The succeeding PDAF provisions remained the
same in view of the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single special
provision ordering the release of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The following year, 2003, 50 the
same single provision was present, with simply an expansion of purpose and express authority
to realign. Nevertheless, the provisions in the 2003 budgets of the Department of Public Works
and Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress
on the aspects of implementation delegation and project list submission, respectively. In 2004,
the 2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and
projects under the ten point agenda of the national government and shall be released directly
to the implementing agencies." It also introduced the program menu concept, 55 which is
essentially a list of general programs and implementing agencies from which a particular PDAF
project may be subsequently chosen by the identifying authority. The 2005 GAA was re-
enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program menu
concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts
allocated for the individual legislators, as well as their participation in the proposal and
identification of PDAF projects to be funded. In contrast to the PDAF Articles, however, the
provisions under the DepEd School Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the concerned Member of
Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of non-
governmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for school
buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated that
"the amount of at least ₱250 Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the Federation of
Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school buildings
x x x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government Procurement Policy Board 64 (GPPB)
issued Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution 12-2007), amending the
implementing rules and regulations65 of RA 9184,66 the Government Procurement Reform Act,
to include, as a form of negotiated procurement, 67 the procedure whereby the Procuring
Entity68(the implementing agency) may enter into a memorandum of agreement with an NGO,
provided that "an appropriation law or ordinance earmarks an amount to be specifically
contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 70 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 8 80 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 IV 84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD
1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985, 86 amending Section
1287 of the former law. As it stands, the Presidential Social Fund has been described as a special
funding facility managed and administered by the Presidential Management Staff through
which the President provides direct assistance to priority programs and projects not funded
under the regular budget. It is sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously, 89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel"
erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an anonymous
source, "blew the lid on the huge sums of government money that regularly went into the
pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘
(standard operating procedure) among legislators and ranged from a low 19 percent to a high
52 percent of the cost of each project, which could be anything from dredging, rip rapping,
sphalting, concreting, and construction of school buildings." 92 "Other sources of kickbacks that
Candazo identified were public funds intended for medicines and textbooks. A few days later,
the tale of the money trail became the banner story of the Philippine Daily Inquirer issue of
August 13, 1996, accompanied by an illustration of a roasted pig." 93 "The publication of the
stories, including those about congressional initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman, sparked public outrage." 94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common
exercise of unscrupulous Members of Congress," the petition was dismissed. 95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by sworn
affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN" standing for
Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public coffers for "ghost
projects" using no fewer than 20 dummy NGOs for an entire decade. While the NGOs were
supposedly the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles‘ private accounts.97 Thus, after its investigation on the Napoles
controversy, criminal complaints were filed before the Office of the Ombudsman, charging five
(5) lawmakers for Plunder, and three (3) other lawmakers for Malversation, Direct Bribery, and
Violation of the Anti-Graft and Corrupt Practices Act. Also recommended to be charged in the
complaints are some of the lawmakers‘ chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the several presidents of the NGOs set up by
Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99covering the use of legislators' PDAF from 2007 to 2009, or during the last three
(3) years of the Arroyo administration. The purpose of the audit was to determine the propriety
of releases of funds under PDAF and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the implementation of projects by the
appropriate implementing agencies and several government-owned-and-controlled
corporations (GOCCs).101 The total releases covered by the audit amounted to ₱8.374 Billion in
PDAF and ₱32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF
and VILP releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA Report),
entitled "Priority Development Assistance Fund (PDAF) and Various Infrastructures including
Local Projects (VILP)," were made public, the highlights of which are as follows: 103

● Amounts released for projects identified by a considerable number of legislators significantly

exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring members of
the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated under the 2007 to
2009 GAAs.

● Infrastructure projects were constructed on private lots without these having been turned
over to the government.

● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and technical
capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the implementing

agencies themselves but by NGOs endorsed by the proponent legislators to which the Funds
were transferred.

● The funds were transferred to the NGOs in spite of the absence of any appropriation law or
ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772)
projects amount to ₱6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their utilization of
the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods and services
reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO." 104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds. 105
V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy,
several petitions were lodged before the Court similarly seeking that the "Pork Barrel System"
be declared unconstitutional. To recount, the relevant procedural antecedents in these cases
are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court
(Alcantara Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a
writ of prohibition be issued permanently restraining respondents Franklin M. Drilon and
Feliciano S. Belmonte, Jr., in their respective capacities as the incumbent Senate President and
Speaker of the House of Representatives, from further taking any steps to enact legislation
appropriating funds for the "Pork Barrel System," in whatever form and by whatever name it
may be called, and from approving further releases pursuant thereto. 106 The Alcantara Petition
was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben
M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of
Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27,
2013 under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel
System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013
PDAF, and the Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and
the Presidential Social Fund,107 be declared unconstitutional and null and void for being acts
constituting grave abuse of discretion. Also, they pray that the Court issue a TRO against
respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon,
in their respective capacities as the incumbent Executive Secretary, Secretary of the
Department of Budget and Management (DBM), and National Treasurer, or their agents, for
them to immediately cease any expenditure under the aforesaid funds. Further, they pray that
the Court order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities
or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data thereto." 108 Also, they pray for the
"inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and
remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a

Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno Simeon
S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of
Congress and, instead, allow their release to fund priority projects identified and approved by
the Local Development Councils in consultation with the executive departments, such as the
DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development Authority. 111 The
Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases;
(b) requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or
any of the persons acting under their authority from releasing (1) the remaining PDAF allocated
to Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase
"for such other purposes as may be hereafter directed by the President" pursuant to Section 8
of PD 910 but not for the purpose of "financing energy resource development and exploitation
programs and projects of the government‖ under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.

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

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

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment:
(a) on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas
Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica
Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by
the parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of
the issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza
(Solicitor General) was directed to bring with him during the Oral Arguments representative/s
from the DBM and Congress who would be able to competently and completely answer
questions related to, among others, the budgeting process and its implementation. Further, the
CoA Chairperson was appointed as amicus curiae and thereby requested to appear before the
Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed
the parties to submit their respective memoranda within a period of seven (7) days, or until
October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main
issues for the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of policy
not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s
Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled
"Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of
Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the
"Pork Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

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

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

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality
or validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual
case or controversy calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance; (c) the question
of constitutionality must be raised at the earliest opportunity ; and (d) the issue of
constitutionality must be the very lis mota of the case.118 Of these requisites, case law states
that the first two are the most important119and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence."122 Related to the requirement of an actual case or controversy
is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny
are already ripe for adjudication. "A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite
that something had then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action." 123 "Withal, courts will decline to
pass upon constitutional issues through advisory opinions, bereft as they are of authority to
resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy
in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of
the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged funds and the provisions
allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently
existing and operational; hence, there exists an immediate or threatened injury to petitioners
as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose can
be served in passing upon the merits.125 Differing from this description, the Court observes that
respondents‘ proposed line-item budgeting scheme would not terminate the controversy nor
diminish the useful purpose for its resolution since said reform is geared towards the 2014
budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the President‘s declaration that he had already "abolished
the PDAF" render the issues on PDAF moot precisely because the Executive branch of
government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress,
through the passage of a repealing law, or by the Court, through a declaration of
unconstitutionality. Instructive on this point is the following exchange between Associate
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral Arguments: 126

Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct? Solicitor
General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF,
the President was saying, "I am not sure that I will continue the release of the soft projects,"
and that started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5
of Book 6 of the Revised Administrative Code128 x x x. So at most the President can suspend,
now if the President believes that the PDAF is unconstitutional, can he just refuse to implement
it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-
blowers, the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you
stop and investigate, and prosecute, he has done that. But, does that mean that PDAF has been
repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a
law to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable
of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners –
they essentially allege grave violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative power, checks and balances,
accountability and local autonomy.

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

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

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the
constitutional mechanisms that gives life to the check and balance system inherent in our form
of government.

It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but also
finality when the decision and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when the CoA has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that
this Court entertains a petition questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy
in these cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the
CoA Chairperson estimates that thousands of notices of disallowances will be issued by her
office in connection with the findings made in the CoA Report. In this relation, Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually
find their way to the courts.132 Accordingly, there is a compelling need to formulate controlling
principles relative to the issues raised herein in order to guide the bench, the bar, and the
public, not just for the expeditious resolution of the anticipated disallowance cases, but more
importantly, so that the government may be guided on how public funds should be utilized in
accordance with constitutional principles.

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

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question
doctrine which, under the classic formulation of Baker v. Carr, 139applies when there is found,
among others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and manageable standards
for resolving it" or "the impossibility of deciding without an initial policy determination of a kind
clearly for non- judicial discretion." Cast against this light, respondents submit that the "the
political branches are in the best position not only to perform budget-related reforms but also
to do them in response to the specific demands of their constituents" and, as such, "urge the
Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature
or executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure." 141 The intrinsic constitutionality of the "Pork
Barrel System" is not an issue dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself has commanded the Court to
act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an exercise
of judicial power. More importantly, the present Constitution has not only vested the Judiciary
the right to exercise judicial power but essentially makes it a duty to proceed therewith. Section
1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law. It includes the
duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." In Estrada v. Desierto, 142 the expanded concept of judicial
power under the 1987 Constitution and its effect on the political question doctrine was
explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore,
the judiciary has focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly,
the new provision did not just grant the Court power of doing nothing. x x x (Emphases
supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and
sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably
cognizant of the reforms undertaken by its co-equal branches of government. But it is by
constitutional force that the Court must faithfully perform its duty. Ultimately, it is the Court‘s
avowed intention that a resolution of these cases would not arrest or in any manner impede
the endeavors of the two other branches but, in fact, help ensure that the pillars of change are
erected on firm constitutional grounds. After all, it is in the best interest of the people that each
great branch of government, within its own sphere, contributes its share towards achieving a
holistic and genuine solution to the problems of society. For all these reasons, the Court cannot
heed respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the validity of
the existing "Pork Barrel System" under which the taxes they pay have been and continue to be
utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been
allowed to sue where there is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest." 148 The CoA Chairperson‘s
statement during the Oral Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of controls"149 amplifies, in addition to the matters
above-discussed, the seriousness of the issues involved herein. Indeed, of greater import than
the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute. 150 All told, petitioners have
sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous but
factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the
applicability of these principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there exists an identity of parties, of
subject matter, and of causes of action.151 This required identity is not, however, attendant
hereto since Philconsa and LAMP, respectively involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is essentially
a dismissal based on a procedural technicality – and, thus, hardly a judgment on the merits – in
that petitioners therein failed to present any "convincing proof x x x showing that, indeed, there
were direct releases of funds to the Members of Congress, who actually spend them according
to their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of
PDAF in the form of kickbacks and has become a common exercise of unscrupulous Members of
Congress." As such, the Court up held, in view of the presumption of constitutionality accorded
to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle,
insofar as the Philconsa and LAMP cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow if
the facts are substantially the same, even though the parties may be different. It proceeds from
the first principle of justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the same event have
been put forward by the parties similarly situated as in a previous case litigated and decided by
a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the same
issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose and
identify projects and activities to be funded by the CDF is an encroachment by the legislature
on executive power, since said power in an appropriation act is in implementation of the law"
and that "the proposal and identification of the projects do not involve the making of laws or
the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following
main conclusions: one, under the Constitution, the power of appropriation, or the "power of
the purse," belongs to Congress; two, the power of appropriation carries with it the power to
specify the project or activity to be funded under the appropriation law and it can be detailed
and as broad as Congress wants it to be; and, three, the proposals and identifications made by
Members of Congress are merely recommendatory. At once, it is apparent that the Philconsa
resolution was a limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of Congress. On
the contrary, the present cases call for a more holistic examination of (a) the inter-relation
between the CDF and PDAF Articles with each other, formative as they are of the entire "Pork
Barrel System" as well as (b) the intra-relation of post-enactment measures contained within a
particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the
issues and the broader legal analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As
may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in
allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily seen. If
the authority to identify projects is an aspect of appropriation and the power of appropriation
is a form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress
which should exercise such authority, and not its individual Members; (b) such authority must
be exercised within the prescribed procedure of law passage and, hence, should not be
exercised after the GAA has already been passed; and (c) such authority, as embodied in the
GAA, has the force of law and, hence, cannot be merely recommendatory. Justice Vitug‘s
Concurring Opinion in the same case sums up the Philconsa quandary in this wise: "Neither
would it be objectionable for Congress, by law, to appropriate funds for such specific projects as
it may be minded; to give that authority, however, to the individual members of Congress in
whatever guise, I am afraid, would be constitutionally impermissible." As the Court now largely
benefits from hindsight and current findings on the matter, among others, the CoA Report, the
Court must partially abandon its previous ruling in Philconsa insofar as it validated the post-
enactment identification authority of Members of Congress on the guise that the same was
merely recommendatory. This postulate raises serious constitutional inconsistencies which
cannot be simply excused on the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List
v. Purisima155(Abakada) has effectively overturned Philconsa‘s allowance of post-enactment
legislator participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of
this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality
and, hence, has not set any controlling doctrine susceptible of current application to the
substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define
the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as
they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse." 156 They
assert that the following elements make up the Pork Barrel System: (a) lump-sum funds are
allocated through the appropriations process to an individual officer; (b) the officer is given sole
and broad discretion in determining how the funds will be used or expended; (c) the guidelines
on how to spend or use the funds in the appropriation are either vague, overbroad or
inexistent; and (d) projects funded are intended to benefit a definite constituency in a particular
part of the country and to help the political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel System is comprised of two (2)
kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently
known as the PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the
Malampaya Funds under PD 910 and the Presidential Social Fund under PD 1869, as amended
by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history, the
Court defines the Pork Barrel System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily intended for local projects, are
utilized through the respective participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System involves two (2) kinds of lump-sum
discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the PDAF,
as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-
enactment measure that allows individual legislators to wield a collective power; 160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.
a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial departments
of the government."163 To the legislative branch of government, through Congress,164belongs
the power to make laws; to the executive branch of government, through the
President,165 belongs the power to enforce laws; and to the judicial branch of government,
through the Court,166 belongs the power to interpret laws. Because the three great powers have
been, by constitutional design, ordained in this respect, "each department of the government
has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive
has no authority to make or construe the law, and the judiciary has no power to make or
execute the law."168 The principle of separation of powers and its concepts of autonomy and
independence stem from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped, would avoid any
single branch from lording its power over the other branches or the citizenry. 169 To achieve this
purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of government to check the arbitrary
or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct
that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch
may interfere impermissibly with the other’s performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated when one branch assumes a
function that more properly is entrusted to another."172 In other words, there is a violation of
the principle when there is impermissible (a) interference with and/or (b) assumption of
another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the
phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them. 175 Thus, unless
the Constitution provides otherwise, the Executive department should exclusively exercise all
roles and prerogatives which go into the implementation of the national budget as provided
under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the
same is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that
"Congress enters the picture when it deliberates or acts on the budget proposals of the
President. Thereafter, Congress, "in the exercise of its own judgment and wisdom, formulates
an appropriation act precisely following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making
role necessarily comes to an end and from there the Executive‘s role of implementing the
national budget begins. So as not to blur the constitutional boundaries between them, Congress
must "not concern it self with details for implementation by the Executive." 176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held
that "from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of the
law violates the principle of separation of powers and is thus unconstitutional." 177 It must be
clarified, however, that since the restriction only pertains to "any role in the implementation or
enforcement of the law," Congress may still exercise its oversight function which is a
mechanism of checks and balances that the Constitution itself allows. But it must be made clear
that Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing
legislator participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive functions. As the
Court ruled in Abakada:178

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

investigation.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 4 189 which
explicitly state s, among others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be‖ ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of Agriculture,
Education, Energy, Interior and Local Government, Labor and Employment, Public Works and
Highways, Social Welfare and Development and Trade and Industry190 x x x to approve
realignment from one project/scope to another within the allotment received from this Fund,
subject to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and,
hence, allow legislators to intervene and/or assume duties that properly belong to the sphere
of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or
another, authorized to participate in – as Guingona, Jr. puts it – "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for individual
activities" and the "regulation and release of funds" in violation of the separation of powers
principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated –
from the moment the law becomes effective, any provision of law that empowers Congress or
any of its members to play any role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus unconstitutional. 191 That the said authority is
treated as merely recommendatory in nature does not alter its unconstitutional tenor since the
prohibition, to repeat, covers any role in the implementation or enforcement of the law.
Towards this end, the Court must therefore abandon its ruling in Philconsa which sanctioned
the conduct of legislator identification on the guise that the same is merely recommendatory
and, as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite
the contrary, respondents – through the statements of the Solicitor General during the Oral
Arguments – have admitted that the identification of the legislator constitutes a mandatory
requirement before his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

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

xxxx

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

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a
SARO and the NCA. And the SARO and the NCA are triggered by an identification from the
legislator.

xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in
the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he
cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in
that sense, Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as
all other provisions of law which similarly allow legislators to wield any form of post-enactment
authority in the implementation or enforcement of the budget, unrelated to congressional
oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary
thereto, informal practices, through which legislators have effectively intruded into the proper
phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to
lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That
such informal practices do exist and have, in fact, been constantly observed throughout the
years has not been substantially disputed here. As pointed out by Chief Justice Maria Lourdes
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:

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

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

2. Non-delegability of Legislative Power.

a. Statement of Principle.

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

exercised by the body to which the Constitution has conferred the same. In particular, Section
1, Article VI of the 1987 Constitution states that such power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and referendum. 195 Based on this
provision, it is clear that only Congress, acting as a bicameral body, and the people, through the
process of initiative and referendum, may constitutionally wield legislative power and no other.
This premise embodies the principle of non-delegability of legislative power, and the only
recognized exceptions thereto would be: (a) delegated legislative power to local governments
which, by immemorial practice, are allowed to legislate on purely local matters; 196 and (b)
constitutionally-grafted exceptions such as the authority of the President to, by law, exercise
powers necessary and proper to carry out a declared national policy in times of war or other
national emergency,197or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198

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

rule-making authority to implementing agencies for the limited purpose of either filling up the
details of the law for its enforcement (supplementary rule-making) or ascertaining facts to bring
the law into actual operation (contingent rule-making).199The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v. Maceren 200 as
follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public
interest are necessary because of "the growing complexity of modern life, the multiplication of
the subjects of governmental regulations, and the increased difficulty of administering the law."

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

3. Checks and Balances.

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 Constitution 225 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 Executive 245 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.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:
G.R. No. 175356               December 3, 2013

MANILA MEMORIAL PARK, INC. AND LA FUNERARIA PAZ-SUCAT, INC., Petitioners, 

vs.
SECRETARY OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT and THE
SECRETARY OF THE DEPARTMENT OF FINANCE, Respondents.

DECISION

DEL CASTILLO, J.:

When a party challeges the constitutionality of a law, the burden of proof rests upon him.

Before us is a Petition for Prohibition2 under Rule 65 of the Rules of Court filed by petitioners
Manila Memorial Park, Inc. and La Funeraria Paz-Sucat, Inc., domestic corporations engaged in
the business of providing funeral and burial services, against public respondents Secretaries of
the Department of Social Welfare and Development (DSWD) and the Department of Finance
(DOF).

Petitioners assail the constitutionality of Section 4 of Republic Act (RA) No. 7432, 3 as amended
by RA 9257,4 and the implementing rules and regulations issued by the DSWD and DOF insofar
as these allow business establishments to claim the 20% discount given to senior citizens as a
tax deduction.

Factual Antecedents
On April 23, 1992, RA 7432 was passed into law, granting senior citizens the following
privileges:

SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the
following:

a) the grant of twenty percent (20%) discount from all establishments relative to utilization of
transportation services, hotels and similar lodging establishment[s], restaurants and recreation
centers and purchase of medicine anywhere in the country: Provided, That private
establishments may claim the cost as tax credit;

b) a minimum of twenty percent (20%) discount on admission fees charged by theaters, cinema
houses and concert halls, circuses, carnivals and other similar places of culture, leisure, and
amusement;

c) exemption from the payment of individual income taxes: Provided, That their annual taxable
income does not exceed the property level as determined by the National Economic and
Development Authority (NEDA) for that year;

d) exemption from training fees for socioeconomic programs undertaken by the OSCA as part of
its work;

e) free medical and dental services in government establishment[s] anywhere in the country,
subject to guidelines to be issued by the Department of Health, the Government Service
Insurance System and the Social Security System;

f) to the extent practicable and feasible, the continuance of the same benefits and privileges
given by the Government Service Insurance System (GSIS), Social Security System (SSS) and
PAG-IBIG, as the case may be, as are enjoyed by those in actual service.

On August 23, 1993, Revenue Regulations (RR) No. 02-94 was issued to implement RA 7432.
Sections 2(i) and 4 of RR No. 02-94 provide:

Sec. 2. DEFINITIONS. – For purposes of these regulations: i. Tax Credit – refers to the amount
representing the 20% discount granted to a qualified senior citizen by all establishments
relative to their utilization of transportation services, hotels and similar lodging establishments,
restaurants, drugstores, recreation centers, theaters, cinema houses, concert halls, circuses,
carnivals and other similar places of culture, leisure and amusement, which discount shall be
deducted by the said establishments from their gross income for income tax purposes and from
their gross sales for value-added tax or other percentage tax purposes. x x x x Sec. 4.
RECORDING/BOOKKEEPING REQUIREMENTS FOR PRIVATE ESTABLISHMENTS. – Private
establishments, i.e., transport services, hotels and similar lodging establishments, restaurants,
recreation centers, drugstores, theaters, cinema houses, concert halls, circuses, carnivals and
other similar places of culture[,] leisure and amusement, giving 20% discounts to qualified
senior citizens are required to keep separate and accurate record[s] of sales made to senior
citizens, which shall include the name, identification number, gross sales/receipts, discounts,
dates of transactions and invoice number for every transaction. The amount of 20% discount
shall be deducted from the gross income for income tax purposes and from gross sales of the
business enterprise concerned for purposes of the VAT and other percentage taxes.

In Commissioner of Internal Revenue v. Central Luzon Drug Corporation, 5 the Court declared
Sections 2(i) and 4 of RR No. 02-94 as erroneous because these contravene RA 7432, 6 thus:

RA 7432 specifically allows private establishments to claim as tax credit the amount of
discounts they grant. In turn, the Implementing Rules and Regulations, issued pursuant thereto,
provide the procedures for its availment. To deny such credit, despite the plain mandate of the
law and the regulations carrying out that mandate, is indefensible. First, the definition given by
petitioner is erroneous. It refers to tax credit as the amount representing the 20 percent
discount that "shall be deducted by the said establishments from their gross income for income
tax purposes and from their gross sales for value-added tax or other percentage tax purposes."
In ordinary business language, the tax credit represents the amount of such discount. However,
the manner by which the discount shall be credited against taxes has not been clarified by the
revenue regulations. By ordinary acceptation, a discount is an "abatement or reduction made
from the gross amount or value of anything." To be more precise, it is in business parlance "a
deduction or lowering of an amount of money;" or "a reduction from the full amount or value
of something, especially a price." In business there are many kinds of discount, the most
common of which is that affecting the income statement or financial report upon which the
income tax is based.

xxxx

Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94 define tax credit as the 20 percent
discount deductible from gross income for income tax purposes, or from gross sales for VAT or
other percentage tax purposes. In effect, the tax credit benefit under RA 7432 is related to a
sales discount. This contrived definition is improper, considering that the latter has to be
deducted from gross sales in order to compute the gross income in the income statement and
cannot be deducted again, even for purposes of computing the income tax. When the law says
that the cost of the discount may be claimed as a tax credit, it means that the amount — when
claimed — shall be treated as a reduction from any tax liability, plain and simple. The option to
avail of the tax credit benefit depends upon the existence of a tax liability, but to limit the
benefit to a sales discount — which is not even identical to the discount privilege that is granted
by law — does not define it at all and serves no useful purpose. The definition must, therefore,
be stricken down.

Laws Not Amended by Regulations

Second, the law cannot be amended by a mere regulation. In fact, a regulation that "operates
to create a rule out of harmony with the statute is a mere nullity;" it cannot prevail. It is a
cardinal rule that courts "will and should respect the contemporaneous construction placed
upon a statute by the executive officers whose duty it is to enforce it x x x." In the scheme of
judicial tax administration, the need for certainty and predictability in the implementation of
tax laws is crucial. Our tax authorities fill in the details that "Congress may not have the
opportunity or competence to provide." The regulations these authorities issue are relied upon
by taxpayers, who are certain that these will be followed by the courts. Courts, however, will
not uphold these authorities’ interpretations when clearly absurd, erroneous or improper. In
the present case, the tax authorities have given the term tax credit in Sections 2.i and 4 of RR 2-
94 a meaning utterly in contrast to what RA 7432 provides. Their interpretation has muddled x x
x the intent of Congress in granting a mere discount privilege, not a sales discount. The
administrative agency issuing these regulations may not enlarge, alter or restrict the provisions
of the law it administers; it cannot engraft additional requirements not contemplated by the
legislature.

In case of conflict, the law must prevail. A "regulation adopted pursuant to law is law."
Conversely, a regulation or any portion thereof not adopted pursuant to law is no law and has
neither the force nor the effect of law.7

On February 26, 2004, RA 92578 amended certain provisions of RA 7432, to wit:

SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the
following:

(a) the grant of twenty percent (20%) discount from all establishments relative to the utilization
of services in hotels and similar lodging establishments, restaurants and recreation centers, and
purchase of medicines in all establishments for the exclusive use or enjoyment of senior
citizens, including funeral and burial services for the death of senior citizens;

xxxx

The establishment may claim the discounts granted under (a), (f), (g) and (h) as tax deduction
based on the net cost of the goods sold or services rendered: Provided, That the cost of the
discount shall be allowed as deduction from gross income for the same taxable year that the
discount is granted. Provided, further, That the total amount of the claimed tax deduction net
of value added tax if applicable, shall be included in their gross sales receipts for tax purposes
and shall be subject to proper documentation and to the provisions of the National Internal
Revenue Code, as amended.

To implement the tax provisions of RA 9257, the Secretary of Finance issued RR No. 4-2006, the
pertinent provision of which provides:

SEC. 8. AVAILMENT BY ESTABLISHMENTS OF SALES DISCOUNTS AS DEDUCTION FROM GROSS

INCOME. – Establishments enumerated in subparagraph (6) hereunder granting sales discounts
to senior citizens on the sale of goods and/or services specified thereunder are entitled to
deduct the said discount from gross income subject to the following conditions:

(1) Only that portion of the gross sales EXCLUSIVELY USED, CONSUMED OR ENJOYED BY THE
SENIOR CITIZEN shall be eligible for the deductible sales discount.

(2) The gross selling price and the sales discount MUST BE SEPARATELY INDICATED IN THE
OFFICIAL RECEIPT OR SALES INVOICE issued by the establishment for the sale of goods or
services to the senior citizen.

(3) Only the actual amount of the discount granted or a sales discount not exceeding 20% of the
gross selling price can be deducted from the gross income, net of value added tax, if applicable,
for income tax purposes, and from gross sales or gross receipts of the business enterprise
concerned, for VAT or other percentage tax purposes.

(4) The discount can only be allowed as deduction from gross income for the same taxable year
that the discount is granted.

(5) The business establishment giving sales discounts to qualified senior citizens is required to
keep separate and accurate record[s] of sales, which shall include the name of the senior
citizen, TIN, OSCA ID, gross sales/receipts, sales discount granted, [date] of [transaction] and
invoice number for every sale transaction to senior citizen.

(6) Only the following business establishments which granted sales discount to senior citizens
on their sale of goods and/or services may claim the said discount granted as deduction from
gross income, namely:

xxxx

(i) Funeral parlors and similar establishments – The beneficiary or any person who shall
shoulder the funeral and burial expenses of the deceased senior citizen shall claim the discount,
such as casket, embalmment, cremation cost and other related services for the senior citizen
upon payment and presentation of [his] death certificate.
The DSWD likewise issued its own Rules and Regulations Implementing RA 9257, to wit:

RULE VI DISCOUNTS AS TAX DEDUCTION OF ESTABLISHMENTS

Article 8. Tax Deduction of Establishments. – The establishment may claim the discounts
granted under Rule V, Section 4 – Discounts for Establishments, Section 9, Medical and Dental
Services in Private Facilities and Sections 10 and 11 – Air, Sea and Land Transportation as tax
deduction based on the net cost of the goods sold or services rendered.

Provided, That the cost of the discount shall be allowed as deduction from gross income for the
same taxable year that the discount is granted; Provided, further, That the total amount of the
claimed tax deduction net of value added tax if applicable, shall be included in their gross sales
receipts for tax purposes and shall be subject to proper documentation and to the provisions of
the National Internal Revenue Code, as amended; Provided, finally, that the implementation of
the tax deduction shall be subject to the Revenue Regulations to be issued by the Bureau of
Internal Revenue (BIR) and approved by the Department of Finance (DOF).

Feeling aggrieved by the tax deduction scheme, petitioners filed the present recourse, praying
that Section 4 of RA 7432, as amended by RA 9257, and the implementing rules and regulations
issued by the DSWD and the DOF be declared unconstitutional insofar as these allow business
establishments to claim the 20% discount given to senior citizens as a tax deduction; that the
DSWD and the DOF be prohibited from enforcing the same; and that the tax credit treatment of
the 20% discount under the former Section 4 (a) of RA 7432 be reinstated.

Issues

Petitioners raise the following issues:

A.

WHETHER THE PETITION PRESENTS AN ACTUAL CASE OR CONTROVERSY.

B.

WHETHER SECTION 4 OF REPUBLIC ACT NO. 9257 AND X X X ITS IMPLEMENTING RULES AND
REGULATIONS, INSOFAR AS THEY PROVIDE THAT THE TWENTY PERCENT (20%) DISCOUNT TO
SENIOR CITIZENS MAY BE CLAIMED AS A TAX DEDUCTION BY THE PRIVATE ESTABLISHMENTS,
ARE INVALID AND UNCONSTITUTIONAL.9

Petitioners’ Arguments
Petitioners emphasize that they are not questioning the 20% discount granted to senior citizens
but are only assailing the constitutionality of the tax deduction scheme prescribed under RA
9257 and the implementing rules and regulations issued by the DSWD and the DOF. 10

Petitioners posit that the tax deduction scheme contravenes Article III, Section 9 of the
Constitution, which provides that: "[p]rivate property shall not be taken for public use without
just compensation."11

In support of their position, petitioners cite Central Luzon Drug Corporation, 12 where it was
ruled that the 20% discount privilege constitutes taking of private property for public use which
requires the payment of just compensation,13 and Carlos Superdrug Corporation v. Department
of Social Welfare and Development,14 where it was acknowledged that the tax deduction
scheme does not meet the definition of just compensation.15

Petitioners likewise seek a reversal of the ruling in Carlos Superdrug Corporation 16 that the tax
deduction scheme adopted by the government is justified by police power.17

They assert that "[a]lthough both police power and the power of eminent domain have the
general welfare for their object, there are still traditional distinctions between the two" 18 and
that "eminent domain cannot be made less supreme than police power." 19

Petitioners further claim that the legislature, in amending RA 7432, relied on an erroneous
contemporaneous construction that prior payment of taxes is required for tax credit. 20

Petitioners also contend that the tax deduction scheme violates Article XV, Section 4 21 and
Article XIII, Section 1122of the Constitution because it shifts the State’s constitutional mandate
or duty of improving the welfare of the elderly to the private sector. 23

Under the tax deduction scheme, the private sector shoulders 65% of the discount because only
35%24 of it is actually returned by the government.25

Consequently, the implementation of the tax deduction scheme prescribed under Section 4 of
RA 9257 affects the businesses of petitioners.26

Thus, there exists an actual case or controversy of transcendental importance which deserves
judicious disposition on the merits by the highest court of the land.27

Respondents’ Arguments

Respondents, on the other hand, question the filing of the instant Petition directly with the
Supreme Court as this disregards the hierarchy of courts. 28
They likewise assert that there is no justiciable controversy as petitioners failed to prove that
the tax deduction treatment is not a "fair and full equivalent of the loss sustained" by them. 29

As to the constitutionality of RA 9257 and its implementing rules and regulations, respondents
contend that petitioners failed to overturn its presumption of constitutionality. 30

More important, respondents maintain that the tax deduction scheme is a legitimate exercise
of the State’s police power.31

Our Ruling

The Petition lacks merit.

There exists an actual case or controversy.

We shall first resolve the procedural issue. When the constitutionality of a law is put in issue,
judicial review may be availed of only if the following requisites concur: "(1) the existence of an
actual and appropriate case; (2) the existence of personal and substantial interest on the part of
the party raising the [question of constitutionality]; (3) recourse to judicial review is made at
the earliest opportunity; and (4) the [question of constitutionality] is the lis mota of the case." 32

In this case, petitioners are challenging the constitutionality of the tax deduction scheme
provided in RA 9257 and the implementing rules and regulations issued by the DSWD and the
DOF. Respondents, however, oppose the Petition on the ground that there is no actual case or
controversy. We do not agree with respondents. An actual case or controversy exists when
there is "a conflict of legal rights" or "an assertion of opposite legal claims susceptible of judicial
resolution."33

The Petition must therefore show that "the governmental act being challenged has a direct
adverse effect on the individual challenging it."34

In this case, the tax deduction scheme challenged by petitioners has a direct adverse effect on
them. Thus, it cannot be denied that there exists an actual case or controversy.

The validity of the 20% senior citizen discount and tax deduction scheme under RA 9257, as an
exercise of police power of the State, has already been settled in Carlos Superdrug
Corporation.

Petitioners posit that the resolution of this case lies in the determination of whether the legally
mandated 20% senior citizen discount is an exercise of police power or eminent domain. If it is
police power, no just compensation is warranted. But if it is eminent domain, the tax deduction
scheme is unconstitutional because it is not a peso for peso reimbursement of the 20% discount
given to senior citizens. Thus, it constitutes taking of private property without payment of just
compensation. At the outset, we note that this question has been settled in Carlos Superdrug
Corporation.35

In that case, we ruled:

Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes
deprivation of private property. Compelling drugstore owners and establishments to grant the
discount will result in a loss of profit and capital because 1) drugstores impose a mark-up of
only 5% to 10% on branded medicines; and 2) the law failed to provide a scheme whereby
drugstores will be justly compensated for the discount. Examining petitioners’ arguments, it is
apparent that what petitioners are ultimately questioning is the validity of the tax deduction
scheme as a reimbursement mechanism for the twenty percent (20%) discount that they
extend to senior citizens. Based on the afore-stated DOF Opinion, the tax deduction scheme
does not fully reimburse petitioners for the discount privilege accorded to senior citizens. This is
because the discount is treated as a deduction, a tax-deductible expense that is subtracted
from the gross income and results in a lower taxable income. Stated otherwise, it is an amount
that is allowed by law to reduce the income prior to the application of the tax rate to compute
the amount of tax which is due. Being a tax deduction, the discount does not reduce taxes
owed on a peso for peso basis but merely offers a fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net income of the
private establishments concerned. The discounts given would have entered the coffers and
formed part of the gross sales of the private establishments, were it not for R.A. No. 9257. The
permanent reduction in their total revenues is a forced subsidy corresponding to the taking of
private property for public use or benefit. This constitutes compensable taking for which
petitioners would ordinarily become entitled to a just compensation. Just compensation is
defined as the full and fair equivalent of the property taken from its owner by the expropriator.
The measure is not the taker’s gain but the owner’s loss. The word just is used to intensify the
meaning of the word compensation, and to convey the idea that the equivalent to be rendered
for the property to be taken shall be real, substantial, full and ample. A tax deduction does not
offer full reimbursement of the senior citizen discount. As such, it would not meet the definition
of just compensation. Having said that, this raises the question of whether the State, in
promoting the health and welfare of a special group of citizens, can impose upon private
establishments the burden of partly subsidizing a government program. The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to
nation-building, and to grant benefits and privileges to them for their improvement and well-
being as the State considers them an integral part of our society. The priority given to senior
citizens finds its basis in the Constitution as set forth in the law itself.1âwphi1 Thus, the Act
provides: SEC. 2. Republic Act No. 7432 is hereby amended to read as follows:
SECTION 1. Declaration of Policies and Objectives. — Pursuant to Article XV, Section 4 of the
Constitution, it is the duty of the family to take care of its elderly members while the State may
design programs of social security for them. In addition to this, Section 10 in the Declaration of
Principles and State Policies provides: "The State shall provide social justice in all phases of
national development." Further, Article XIII, Section 11, provides: "The State shall adopt an
integrated and comprehensive approach to health development which shall endeavor to make
essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged sick, elderly, disabled, women and
children." Consonant with these constitutional principles the following are the declared policies
of this Act:

x x x           x x x          x x x

(f) To recognize the important role of the private sector in the improvement of the welfare of
senior citizens and to actively seek their partnership.

To implement the above policy, the law grants a twenty percent discount to senior citizens for
medical and dental services, and diagnostic and laboratory fees; admission fees charged by
theaters, concert halls, circuses, carnivals, and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel; utilization of services in hotels and
similar lodging establishments, restaurants and recreation centers; and purchases of medicines
for the exclusive use or enjoyment of senior citizens. As a form of reimbursement, the law
provides that business establishments extending the twenty percent discount to senior citizens
may claim the discount as a tax deduction. The law is a legitimate exercise of police power
which, similar to the power of eminent domain, has general welfare for its object. Police power
is not capable of an exact definition, but has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an
efficient and flexible response to conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great public needs." It is "[t]he power vested
in the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant
to the constitution, as they shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same." For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to general welfare. Police
power as an attribute to promote the common good would be diluted considerably if on the
mere plea of petitioners that they will suffer loss of earnings and capital, the questioned
provision is invalidated. Moreover, in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no basis for its nullification in view of
the presumption of validity which every law has in its favor. Given these, it is incorrect for
petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their
business, because petitioners have not taken time to calculate correctly and come up with a
financial report, so that they have not been able to show properly whether or not the tax
deduction scheme really works greatly to their disadvantage. In treating the discount as a tax
deduction, petitioners insist that they will incur losses because, referring to the DOF Opinion,
for every ₱1.00 senior citizen discount that petitioners would give, P0.68 will be shouldered by
them as only P0.32 will be refunded by the government by way of a tax deduction. To illustrate
this point, petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc
as an example. According to the latter, it acquires Norvasc from the distributors at ₱37.57 per
tablet, and retails it at ₱39.60 (or at a margin of 5%). If it grants a 20% discount to senior
citizens or an amount equivalent to ₱7.92, then it would have to sell Norvasc at ₱31.68 which
translates to a loss from capital of ₱5.89 per tablet. Even if the government will allow a tax
deduction, only ₱2.53 per tablet will be refunded and not the full amount of the discount which
is ₱7.92. In short, only 32% of the 20% discount will be reimbursed to the drugstores.
Petitioners’ computation is flawed. For purposes of reimbursement, the law states that the cost
of the discount shall be deducted from gross income, the amount of income derived from all
sources before deducting allowable expenses, which will result in net income. Here, petitioners
tried to show a loss on a per transaction basis, which should not be the case. An income
statement, showing an accounting of petitioners' sales, expenses, and net profit (or loss) for a
given period could have accurately reflected the effect of the discount on their income. Absent
any financial statement, petitioners cannot substantiate their claim that they will be operating
at a loss should they give the discount. In addition, the computation was erroneously based on
the assumption that their customers consisted wholly of senior citizens. Lastly, the 32% tax rate
is to be imposed on income, not on the amount of the discount.

Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the prices
of their medicines given the cutthroat nature of the players in the industry. It is a business
decision on the part of petitioners to peg the mark-up at 5%. Selling the medicines below
acquisition cost, as alleged by petitioners, is merely a result of this decision. Inasmuch as pricing
is a property right, petitioners cannot reproach the law for being oppressive, simply because
they cannot afford to raise their prices for fear of losing their customers to competition. The
Court is not oblivious of the retail side of the pharmaceutical industry and the competitive
pricing component of the business. While the Constitution protects property rights, petitioners
must accept the realities of business and the State, in the exercise of police power, can
intervene in the operations of a business which may result in an impairment of property rights
in the process.
Moreover, the right to property has a social dimension. While Article XIII of the Constitution
provides the precept for the protection of property, various laws and jurisprudence, particularly
on agrarian reform and the regulation of contracts and public utilities, continuously serve as x x
x reminder[s] that the right to property can be relinquished upon the command of the State for
the promotion of public good. Undeniably, the success of the senior citizens program rests
largely on the support imparted by petitioners and the other private establishments concerned.
This being the case, the means employed in invoking the active participation of the private
sector, in order to achieve the purpose or objective of the law, is reasonably and directly
related. Without sufficient proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the
continued implementation of the same would be unconscionably detrimental to petitioners,
the Court will refrain from quashing a legislative act.36 (Bold in the original; underline supplied)

We, thus, found that the 20% discount as well as the tax deduction scheme is a valid exercise of
the police power of the State.

No compelling reason has been proffered to overturn, modify or abandon the ruling in Carlos
Superdrug Corporation.

Petitioners argue that we have previously ruled in Central Luzon Drug Corporation 37 that the
20% discount is an exercise of the power of eminent domain, thus, requiring the payment of
just compensation. They urge us to re-examine our ruling in Carlos Superdrug
Corporation38 which allegedly reversed the ruling in Central Luzon Drug Corporation. 39

They also point out that Carlos Superdrug Corporation40 recognized that the tax deduction
scheme under the assailed law does not provide for sufficient just compensation. We agree
with petitioners’ observation that there are statements in Central Luzon Drug
Corporation41 describing the 20% discount as an exercise of the power of eminent domain, viz.:

[T]he privilege enjoyed by senior citizens does not come directly from the State, but rather from
the private establishments concerned. Accordingly, the tax credit benefit granted to these
establishments can be deemed as their just compensation for private property taken by the
State for public use. The concept of public use is no longer confined to the traditional notion of
use by the public, but held synonymous with public interest, public benefit, public welfare, and
public convenience. The discount privilege to which our senior citizens are entitled is actually a
benefit enjoyed by the general public to which these citizens belong. The discounts given would
have entered the coffers and formed part of the gross sales of the private establishments
concerned, were it not for RA 7432. The permanent reduction in their total revenues is a forced
subsidy corresponding to the taking of private property for public use or benefit. As a result of
the 20 percent discount imposed by RA 7432, respondent becomes entitled to a just
compensation. This term refers not only to the issuance of a tax credit certificate indicating the
correct amount of the discounts given, but also to the promptness in its release. Equivalent to
the payment of property taken by the State, such issuance — when not done within a
reasonable time from the grant of the discounts — cannot be considered as just compensation.
In effect, respondent is made to suffer the consequences of being immediately deprived of its
revenues while awaiting actual receipt, through the certificate, of the equivalent amount it
needs to cope with the reduction in its revenues. Besides, the taxation power can also be used
as an implement for the exercise of the power of eminent domain. Tax measures are but
"enforced contributions exacted on pain of penal sanctions" and "clearly imposed for a public
purpose." In recent years, the power to tax has indeed become a most effective tool to realize
social justice, public welfare, and the equitable distribution of wealth. While it is a declared
commitment under Section 1 of RA 7432, social justice "cannot be invoked to trample on the
rights of property owners who under our Constitution and laws are also entitled to protection.
The social justice consecrated in our [C]onstitution [is] not intended to take away rights from a
person and give them to another who is not entitled thereto." For this reason, a just
compensation for income that is taken away from respondent becomes necessary. It is in the
tax credit that our legislators find support to realize social justice, and no administrative body
can alter that fact. To put it differently, a private establishment that merely breaks even —
without the discounts yet — will surely start to incur losses because of such discounts. The
same effect is expected if its mark-up is less than 20 percent, and if all its sales come from retail
purchases by senior citizens. Aside from the observation we have already raised earlier, it will
also be grossly unfair to an establishment if the discounts will be treated merely as deductions
from either its gross income or its gross sales.1âwphi1 Operating at a loss through no fault of its
own, it will realize that the tax credit limitation under RR 2-94 is inutile, if not improper. Worse,
profit-generating businesses will be put in a better position if they avail themselves of tax
credits denied those that are losing, because no taxes are due from the latter. 42 (Italics in the
original; emphasis supplied)

The above was partly incorporated in our ruling in Carlos Superdrug Corporation 43 when we
stated preliminarily that—

Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes
deprivation of private property. Compelling drugstore owners and establishments to grant the
discount will result in a loss of profit and capital because 1) drugstores impose a mark-up of
only 5% to 10% on branded medicines; and 2) the law failed to provide a scheme whereby
drugstores will be justly compensated for the discount. Examining petitioners’ arguments, it is
apparent that what petitioners are ultimately questioning is the validity of the tax deduction
scheme as a reimbursement mechanism for the twenty percent (20%) discount that they
extend to senior citizens. Based on the afore-stated DOF Opinion, the tax deduction scheme
does not fully reimburse petitioners for the discount privilege accorded to senior citizens. This is
because the discount is treated as a deduction, a tax-deductible expense that is subtracted
from the gross income and results in a lower taxable income. Stated otherwise, it is an amount
that is allowed by law to reduce the income prior to the application of the tax rate to compute
the amount of tax which is due. Being a tax deduction, the discount does not reduce taxes
owed on a peso for peso basis but merely offers a fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net income of the
private establishments concerned. The discounts given would have entered the coffers and
formed part of the gross sales of the private establishments, were it not for R.A. No. 9257. The
permanent reduction in their total revenues is a forced subsidy corresponding to the taking of
private property for public use or benefit. This constitutes compensable taking for which
petitioners would ordinarily become entitled to a just compensation. Just compensation is
defined as the full and fair equivalent of the property taken from its owner by the expropriator.
The measure is not the taker’s gain but the owner’s loss. The word just is used to intensify the
meaning of the word compensation, and to convey the idea that the equivalent to be rendered
for the property to be taken shall be real, substantial, full and ample. A tax deduction does not
offer full reimbursement of the senior citizen discount. As such, it would not meet the definition
of just compensation. Having said that, this raises the question of whether the State, in
promoting the health and welfare of a special group of citizens, can impose upon private
establishments the burden of partly subsidizing a government program. The Court believes so. 44

This, notwithstanding, we went on to rule in Carlos Superdrug Corporation 45 that the 20%
discount and tax deduction scheme is a valid exercise of the police power of the State. The
present case, thus, affords an opportunity for us to clarify the above-quoted statements in
Central Luzon Drug Corporation46 and Carlos Superdrug Corporation.47

First, we note that the above-quoted disquisition on eminent domain in Central Luzon Drug
Corporation48 is obiter dicta and, thus, not binding precedent. As stated earlier, in Central Luzon
Drug Corporation,49 we ruled that the BIR acted ultra vires when it effectively treated the 20%
discount as a tax deduction, under Sections 2.i and 4 of RR No. 2-94, despite the clear wording
of the previous law that the same should be treated as a tax credit. We were, therefore, not
confronted in that case with the issue as to whether the 20% discount is an exercise of police
power or eminent domain. Second, although we adverted to Central Luzon Drug
Corporation50 in our ruling in Carlos Superdrug Corporation,51 this referred only to preliminary
matters. A fair reading of Carlos Superdrug Corporation 52would show that we categorically
ruled therein that the 20% discount is a valid exercise of police power. Thus, even if the current
law, through its tax deduction scheme (which abandoned the tax credit scheme under the
previous law), does not provide for a peso for peso reimbursement of the 20% discount given
by private establishments, no constitutional infirmity obtains because, being a valid exercise of
police power, payment of just compensation is not warranted. We have carefully reviewed the
basis of our ruling in Carlos Superdrug Corporation53 and we find no cogent reason to overturn,
modify or abandon it. We also note that petitioners’ arguments are a mere reiteration of those
raised and resolved in Carlos Superdrug Corporation. 54 Thus, we sustain Carlos Superdrug
Corporation.55

Nonetheless, we deem it proper, in what follows, to amplify our explanation in Carlos

Superdrug Corporation56 as to why the 20% discount is a valid exercise of police power and why
it may not, under the specific circumstances of this case, be considered as an exercise of the
power of eminent domain contrary to the obiter in Central Luzon Drug Corporation. 57

Police power versus eminent domain.

Police power is the inherent power of the State to regulate or to restrain the use of liberty and
property for public welfare.58

The only limitation is that the restriction imposed should be reasonable, not oppressive. 59

In other words, to be a valid exercise of police power, it must have a lawful subject or objective
and a lawful method of accomplishing the goal.60

Under the police power of the State, "property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the government." 61

The State "may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare [as long as] the interference [is] reasonable and not arbitrary." 62

Eminent domain, on the other hand, is the inherent power of the State to take or appropriate
private property for public use.63

The Constitution, however, requires that private property shall not be taken without due
process of law and the payment of just compensation.64

Traditional distinctions exist between police power and eminent domain. In the exercise of
police power, a property right is impaired by regulation, 65 or the use of property is merely
prohibited, regulated or restricted66 to promote public welfare. In such cases, there is no
compensable taking, hence, payment of just compensation is not required. Examples of these
regulations are property condemned for being noxious or intended for noxious purposes (e.g., a
building on the verge of collapse to be demolished for public safety, or obscene materials to be
destroyed in the interest of public morals)67 as well as zoning ordinances prohibiting the use of
property for purposes injurious to the health, morals or safety of the community (e.g., dividing
a city’s territory into residential and industrial areas). 68
It has, thus, been observed that, in the exercise of police power (as distinguished from eminent
domain), although the regulation affects the right of ownership, none of the bundle of rights
which constitute ownership is appropriated for use by or for the benefit of the public. 69

On the other hand, in the exercise of the power of eminent domain, property interests are
appropriated and applied to some public purpose which necessitates the payment of just
compensation therefor. Normally, the title to and possession of the property are transferred to
the expropriating authority. Examples include the acquisition of lands for the construction of
public highways as well as agricultural lands acquired by the government under the agrarian
reform law for redistribution to qualified farmer beneficiaries. However, it is a settled rule that
the acquisition of title or total destruction of the property is not essential for "taking" under the
power of eminent domain to be present.70

Examples of these include establishment of easements such as where the land owner is
perpetually deprived of his proprietary rights because of the hazards posed by electric
transmission lines constructed above his property71 or the compelled interconnection of the
telephone system between the government and a private company. 72

In these cases, although the private property owner is not divested of ownership or possession,
payment of just compensation is warranted because of the burden placed on the property for
the use or benefit of the public.

The 20% senior citizen discount is an exercise of police power.

It may not always be easy to determine whether a challenged governmental act is an exercise
of police power or eminent domain. The very nature of police power as elastic and responsive
to various social conditions73 as well as the evolving meaning and scope of public use74 and just
compensation75 in eminent domain evinces that these are not static concepts. Because of the
exigencies of rapidly changing times, Congress may be compelled to adopt or experiment with
different measures to promote the general welfare which may not fall squarely within the
traditionally recognized categories of police power and eminent domain. The judicious
approach, therefore, is to look at the nature and effects of the challenged governmental act
and decide, on the basis thereof, whether the act is the exercise of police power or eminent
domain. Thus, we now look at the nature and effects of the 20% discount to determine if it
constitutes an exercise of police power or eminent domain. The 20% discount is intended to
improve the welfare of senior citizens who, at their age, are less likely to be gainfully employed,
more prone to illnesses and other disabilities, and, thus, in need of subsidy in purchasing basic
commodities. It may not be amiss to mention also that the discount serves to honor senior
citizens who presumably spent the productive years of their lives on contributing to the
development and progress of the nation. This distinct cultural Filipino practice of honoring the
elderly is an integral part of this law. As to its nature and effects, the 20% discount is a
regulation affecting the ability of private establishments to price their products and services
relative to a special class of individuals, senior citizens, for which the Constitution affords
preferential concern.76

In turn, this affects the amount of profits or income/gross sales that a private establishment can
derive from senior citizens. In other words, the subject regulation affects the pricing, and,
hence, the profitability of a private establishment. However, it does not purport to appropriate
or burden specific properties, used in the operation or conduct of the business of private
establishments, for the use or benefit of the public, or senior citizens for that matter, but
merely regulates the pricing of goods and services relative to, and the amount of profits or
income/gross sales that such private establishments may derive from, senior citizens. The
subject regulation may be said to be similar to, but with substantial distinctions from, price
control or rate of return on investment control laws which are traditionally regarded as police
power measures.77

These laws generally regulate public utilities or industries/enterprises imbued with public
interest in order to protect consumers from exorbitant or unreasonable pricing as well as
temper corporate greed by controlling the rate of return on investment of these corporations
considering that they have a monopoly over the goods or services that they provide to the
general public. The subject regulation differs therefrom in that (1) the discount does not
prevent the establishments from adjusting the level of prices of their goods and services, and
(2) the discount does not apply to all customers of a given establishment but only to the class of
senior citizens. Nonetheless, to the degree material to the resolution of this case, the 20%
discount may be properly viewed as belonging to the category of price regulatory measures
which affect the profitability of establishments subjected thereto. On its face, therefore, the
subject regulation is a police power measure. The obiter in Central Luzon Drug
Corporation,78 however, describes the 20% discount as an exercise of the power of eminent
domain and the tax credit, under the previous law, equivalent to the amount of discount given
as the just compensation therefor. The reason is that (1) the discount would have formed part
of the gross sales of the establishment were it not for the law prescribing the 20% discount, and
(2) the permanent reduction in total revenues is a forced subsidy corresponding to the taking of
private property for public use or benefit. The flaw in this reasoning is in its premise. It
presupposes that the subject regulation, which impacts the pricing and, hence, the profitability
of a private establishment, automatically amounts to a deprivation of property without due
process of law. If this were so, then all price and rate of return on investment control laws
would have to be invalidated because they impact, at some level, the regulated establishment’s
profits or income/gross sales, yet there is no provision for payment of just compensation. It
would also mean that overnment cannot set price or rate of return on investment limits, which
reduce the profits or income/gross sales of private establishments, if no just compensation is
paid even if the measure is not confiscatory. The obiter is, thus, at odds with the settled octrine
that the State can employ police power measures to regulate the pricing of goods and services,
and, hence, the profitability of business establishments in order to pursue legitimate State
objectives for the common good, provided that the regulation does not go too far as to amount
to "taking."79

In City of Manila v. Laguio, Jr.,80 we recognized that— x x x a taking also could be found if
government regulation of the use of property went "too far." When regulation reaches a
certain magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking. No formula or rule can be devised to
answer the questions of what is too far and when regulation becomes a taking. In Mahon,
Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed
of by general propositions." On many other occasions as well, the U.S. Supreme Court has said
that the issue of when regulation constitutes a taking is a matter of considering the facts in
each case. The Court asks whether justice and fairness require that the economic loss caused by
public action must be compensated by the government and thus borne by the public as a
whole, or whether the loss should remain concentrated on those few persons subject to the
public action.81

The impact or effect of a regulation, such as the one under consideration, must, thus, be
determined on a case-to-case basis. Whether that line between permissible regulation under
police power and "taking" under eminent domain has been crossed must, under the specific
circumstances of this case, be subject to proof and the one assailing the constitutionality of the
regulation carries the heavy burden of proving that the measure is unreasonable, oppressive or
confiscatory. The time-honored rule is that the burden of proving the unconstitutionality of a
law rests upon the one assailing it and "the burden becomes heavier when police power is at
issue."82

The 20% senior citizen discount has not been shown to be unreasonable, oppressive or
confiscatory.

In Alalayan v. National Power Corporation,83 petitioners, who were franchise holders of electric

plants, challenged the validity of a law limiting their allowable net profits to no more than 12%
per annum of their investments plus two-month operating expenses. In rejecting their plea, we
ruled that, in an earlier case, it was found that 12% is a reasonable rate of return and that
petitioners failed to prove that the aforesaid rate is confiscatory in view of the presumption of
constitutionality.84
We adopted a similar line of reasoning in Carlos Superdrug Corporation 85 when we ruled that
petitioners therein failed to prove that the 20% discount is arbitrary, oppressive or confiscatory.
We noted that no evidence, such as a financial report, to establish the impact of the 20%
discount on the overall profitability of petitioners was presented in order to show that they
would be operating at a loss due to the subject regulation or that the continued
implementation of the law would be unconscionably detrimental to the business operations of
petitioners. In the case at bar, petitioners proceeded with a hypothetical computation of the
alleged loss that they will suffer similar to what the petitioners in Carlos Superdrug
Corporation86 did. Petitioners went directly to this Court without first establishing the factual
bases of their claims. Hence, the present recourse must, likewise, fail. Because all laws enjoy
the presumption of constitutionality, courts will uphold a law’s validity if any set of facts may be
conceived to sustain it.87

On its face, we find that there are at least two conceivable bases to sustain the subject
regulation’s validity absent clear and convincing proof that it is unreasonable, oppressive or
confiscatory. Congress may have legitimately concluded that business establishments have the
capacity to absorb a decrease in profits or income/gross sales due to the 20% discount without
substantially affecting the reasonable rate of return on their investments considering (1) not all
customers of a business establishment are senior citizens and (2) the level of its profit margins
on goods and services offered to the general public. Concurrently, Congress may have, likewise,
legitimately concluded that the establishments, which will be required to extend the 20%
discount, have the capacity to revise their pricing strategy so that whatever reduction in profits
or income/gross sales that they may sustain because of sales to senior citizens, can be recouped
through higher mark-ups or from other products not subject of discounts. As a result, the
discounts resulting from sales to senior citizens will not be confiscatory or unduly oppressive. In
sum, we sustain our ruling in Carlos Superdrug Corporation88 that the 20% senior citizen
discount and tax deduction scheme are valid exercises of police power of the State absent a
clear showing that it is arbitrary, oppressive or confiscatory.

Conclusion

In closing, we note that petitioners hypothesize, consistent with our previous ratiocinations,
that the discount will force establishments to raise their prices in order to compensate for its
impact on overall profits or income/gross sales. The general public, or those not belonging to
the senior citizen class, are, thus, made to effectively shoulder the subsidy for senior citizens.
This, in petitioners’ view, is unfair.

As already mentioned, Congress may be reasonably assumed to have foreseen this eventuality.
But, more importantly, this goes into the wisdom, efficacy and expediency of the subject law
which is not proper for judicial review. In a way, this law pursues its social equity objective in a
non-traditional manner unlike past and existing direct subsidy programs of the government for
the poor and marginalized sectors of our society. Verily, Congress must be given sufficient
leeway in formulating welfare legislations given the enormous challenges that the government
faces relative to, among others, resource adequacy and administrative capability in
implementing social reform measures which aim to protect and uphold the interests of those
most vulnerable in our society. In the process, the individual, who enjoys the rights, benefits
and privileges of living in a democratic polity, must bear his share in supporting measures
intended for the common good. This is only fair. In fine, without the requisite showing of a clear
and unequivocal breach of the Constitution, the validity of the assailed law must be sustained.

Refutation of the Dissent

The main points of Justice Carpio’s Dissent may be summarized as follows: (1) the discussion on
eminent domain in Central Luzon Drug Corporation89 is not obiter dicta ; (2) allowable taking, in
police power, is limited to property that is destroyed or placed outside the commerce of man
for public welfare; (3) the amount of mandatory discount is private property within the ambit of
Article III, Section 990 of the Constitution; and (4) the permanent reduction in a private
establishment’s total revenue, arising from the mandatory discount, is a taking of private
property for public use or benefit, hence, an exercise of the power of eminent domain requiring
the payment of just compensation. I We maintain that the discussion on eminent domain in
Central Luzon Drug Corporation91 is obiter dicta. As previously discussed, in Central Luzon Drug
Corporation,92 the BIR, pursuant to Sections 2.i and 4 of RR No. 2-94, treated the senior citizen
discount in the previous law, RA 7432, as a tax deduction instead of a tax credit despite the
clear provision in that law which stated –

SECTION 4. Privileges for the Senior Citizens. – The senior citizens shall be entitled to the
following:

a) The grant of twenty percent (20%) discount from all establishments relative to utilization of
transportation services, hotels and similar lodging establishment, restaurants and recreation
centers and purchase of medicines anywhere in the country: Provided, That private
establishments may claim the cost as tax credit; (Emphasis supplied)

Thus, the Court ruled that the subject revenue regulation violated the law, viz:

The 20 percent discount required by the law to be given to senior citizens is a tax credit, not
merely a tax deduction from the gross income or gross sale of the establishment concerned. A
tax credit is used by a private establishment only after the tax has been computed; a tax
deduction, before the tax is computed. RA 7432 unconditionally grants a tax credit to all
covered entities. Thus, the provisions of the revenue regulation that withdraw or modify such
grant are void. Basic is the rule that administrative regulations cannot amend or revoke the
law.93

As can be readily seen, the discussion on eminent domain was not necessary in order to arrive
at this conclusion. All that was needed was to point out that the revenue regulation
contravened the law which it sought to implement. And, precisely, this was done in Central
Luzon Drug Corporation94 by comparing the wording of the previous law vis-à-vis the revenue
regulation; employing the rules of statutory construction; and applying the settled principle that
a regulation cannot amend the law it seeks to implement. A close reading of Central Luzon Drug
Corporation95 would show that the Court went on to state that the tax credit "can be deemed"
as just compensation only to explain why the previous law provides for a tax credit instead of a
tax deduction. The Court surmised that the tax credit was a form of just compensation given to
the establishments covered by the 20% discount. However, the reason why the previous law
provided for a tax credit and not a tax deduction was not necessary to resolve the issue as to
whether the revenue regulation contravenes the law. Hence, the discussion on eminent domain
is obiter dicta.

A court, in resolving cases before it, may look into the possible purposes or reasons that
impelled the enactment of a particular statute or legal provision. However, statements made
relative thereto are not always necessary in resolving the actual controversies presented before
it. This was the case in Central Luzon Drug Corporation96resulting in that unfortunate statement
that the tax credit "can be deemed" as just compensation. This, in turn, led to the erroneous
conclusion, by deductive reasoning, that the 20% discount is an exercise of the power of
eminent domain. The Dissent essentially adopts this theory and reasoning which, as will be
shown below, is contrary to settled principles in police power and eminent domain analysis. II
The Dissent discusses at length the doctrine on "taking" in police power which occurs when
private property is destroyed or placed outside the commerce of man. Indeed, there is a whole
class of police power measures which justify the destruction of private property in order to
preserve public health, morals, safety or welfare. As earlier mentioned, these would include a
building on the verge of collapse or confiscated obscene materials as well as those mentioned
by the Dissent with regard to property used in violating a criminal statute or one which
constitutes a nuisance. In such cases, no compensation is required. However, it is equally true
that there is another class of police power measures which do not involve the destruction of
private property but merely regulate its use. The minimum wage law, zoning ordinances, price
control laws, laws regulating the operation of motels and hotels, laws limiting the working
hours to eight, and the like would fall under this category. The examples cited by the Dissent,
likewise, fall under this category: Article 157 of the Labor Code, Sections 19 and 18 of the Social
Security Law, and Section 7 of the Pag-IBIG Fund Law. These laws merely regulate or, to use the
term of the Dissent, burden the conduct of the affairs of business establishments. In such cases,
payment of just compensation is not required because they fall within the sphere of permissible
police power measures. The senior citizen discount law falls under this latter category. III The
Dissent proceeds from the theory that the permanent reduction of profits or income/gross
sales, due to the 20% discount, is a "taking" of private property for public purpose without
payment of just compensation. At the outset, it must be emphasized that petitioners never
presented any evidence to establish that they were forced to suffer enormous losses or operate
at a loss due to the effects of the assailed law. They came directly to this Court and provided a
hypothetical computation of the loss they would allegedly suffer due to the operation of the
assailed law. The central premise of the Dissent’s argument that the 20% discount results in a
permanent reduction in profits or income/gross sales, or forces a business establishment to
operate at a loss is, thus, wholly unsupported by competent evidence. To be sure, the Court can
invalidate a law which, on its face, is arbitrary, oppressive or confiscatory. 97

But this is not the case here.

In the case at bar, evidence is indispensable before a determination of a constitutional violation

can be made because of the following reasons. First, the assailed law, by imposing the senior
citizen discount, does not take any of the properties used by a business establishment like, say,
the land on which a manufacturing plant is constructed or the equipment being used to
produce goods or services. Second, rather than taking specific properties of a business
establishment, the senior citizen discount law merely regulates the prices of the goods or
services being sold to senior citizens by mandating a 20% discount. Thus, if a product is sold at
₱10.00 to the general public, then it shall be sold at ₱8.00 ( i.e., ₱10.00 less 20%) to senior
citizens. Note that the law does not impose at what specific price the product shall be sold, only
that a 20% discount shall be given to senior citizens based on the price set by the business
establishment. A business establishment is, thus, free to adjust the prices of the goods or
services it provides to the general public. Accordingly, it can increase the price of the above
product to ₱20.00 but is required to sell it at ₱16.00 (i.e. , ₱20.00 less 20%) to senior citizens.
Third, because the law impacts the prices of the goods or services of a particular establishment
relative to its sales to senior citizens, its profits or income/gross sales are affected. The extent
of the impact would, however, depend on the profit margin of the business establishment on a
particular good or service. If a product costs ₱5.00 to produce and is sold at ₱10.00, then the
profit98 is ₱5.0099 or a profit margin100 of 50%.101

Under the assailed law, the aforesaid product would have to be sold at ₱8.00 to senior citizens
yet the business would still earn ₱3.00102 or a 30%103 profit margin. On the other hand, if the
product costs ₱9.00 to produce and is required to be sold at ₱8.00 to senior citizens, then the
business would experience a loss of ₱1.00.104
But note that since not all customers of a business establishment are senior citizens, the
business establishment may continue to earn ₱1.00 from non-senior citizens which, in turn, can
offset any loss arising from sales to senior citizens.

Fourth, when the law imposes the 20% discount in favor of senior citizens, it does not prevent
the business establishment from revising its pricing strategy.

By revising its pricing strategy, a business establishment can recoup any reduction of profits or
income/gross sales which would otherwise arise from the giving of the 20% discount. To
illustrate, suppose A has two customers: X, a senior citizen, and Y, a non-senior citizen. Prior to
the law, A sells his products at ₱10.00 a piece to X and Y resulting in income/gross sales of
₱20.00 (₱10.00 + ₱10.00). With the passage of the law, A must now sell his product to X at
₱8.00 (i.e., ₱10.00 less 20%) so that his income/gross sales would be ₱18.00 (₱8.00 + ₱10.00) or
lower by ₱2.00. To prevent this from happening, A decides to increase the price of his products
to ₱11.11 per piece. Thus, he sells his product to X at ₱8.89 (i.e. , ₱11.11 less 20%) and to Y at
₱11.11. As a result, his income/gross sales would still be ₱20.00 105 (₱8.89 + ₱11.11). The
capacity, then, of business establishments to revise their pricing strategy makes it possible for
them not to suffer any reduction in profits or income/gross sales, or, in the alternative, mitigate
the reduction of their profits or income/gross sales even after the passage of the law. In other
words, business establishments have the capacity to adjust their prices so that they may remain
profitable even under the operation of the assailed law.

The Dissent, however, states that – The explanation by the majority that private establishments
can always increase their prices to recover the mandatory discount will only encourage private
establishments to adjust their prices upwards to the prejudice of customers who do not enjoy
the 20% discount. It was likewise suggested that if a company increases its prices, despite the
application of the 20% discount, the establishment becomes more profitable than it was before
the implementation of R.A. 7432. Such an economic justification is self-defeating, for more
consumers will suffer from the price increase than will benefit from the 20% discount. Even
then, such ability to increase prices cannot legally validate a violation of the eminent domain
clause.106

But, if it is possible that the business establishment, by adjusting its prices, will suffer no
reduction in its profits or income/gross sales (or suffer some reduction but continue to operate
profitably) despite giving the discount, what would be the basis to strike down the law? If it is
possible that the business establishment, by adjusting its prices, will not be unduly burdened,
how can there be a finding that the assailed law is an unconstitutional exercise of police power
or eminent domain? That there may be a burden placed on business establishments or the
consuming public as a result of the operation of the assailed law is not, by itself, a ground to
declare it unconstitutional for this goes into the wisdom and expediency of the law.
The cost of most, if not all, regulatory measures of the government on business establishments
is ultimately passed on to the consumers but that, by itself, does not justify the wholesale
nullification of these measures. It is a basic postulate of our democratic system of government
that the Constitution is a social contract whereby the people have surrendered their sovereign
powers to the State for the common good.107

All persons may be burdened by regulatory measures intended for the common good or to
serve some important governmental interest, such as protecting or improving the welfare of a
special class of people for which the Constitution affords preferential concern. Indubitably, the
one assailing the law has the heavy burden of proving that the regulation is unreasonable,
oppressive or confiscatory, or has gone "too far" as to amount to a "taking." Yet, here, the
Dissent would have this Court nullify the law without any proof of such nature.

Further, this Court is not the proper forum to debate the economic theories or realities that
impelled Congress to shift from the tax credit to the tax deduction scheme. It is not within our
power or competence to judge which scheme is more or less burdensome to business
establishments or the consuming public and, thereafter, to choose which scheme the State
should use or pursue. The shift from the tax credit to tax deduction scheme is a policy
determination by Congress and the Court will respect it for as long as there is no showing, as
here, that the subject regulation has transgressed constitutional limitations. Unavoidably, the
lack of evidence constrains the Dissent to rely on speculative and hypothetical argumentation
when it states that the 20% discount is a significant amount and not a minimal loss (which
erroneously assumes that the discount automatically results in a loss when it is possible that
the profit margin is greater than 20% and/or the pricing strategy can be revised to prevent or
mitigate any reduction in profits or income/gross sales as illustrated above), 108 and not all
private establishments make a 20% profit margin (which conversely implies that there are those
who make more and, thus, would not be greatly affected by this regulation). 109

In fine, because of the possible scenarios discussed above, we cannot assume that the 20%
discount results in a permanent reduction in profits or income/gross sales, much less that
business establishments are forced to operate at a loss under the assailed law. And, even if we
gratuitously assume that the 20% discount results in some degree of reduction in profits or
income/gross sales, we cannot assume that such reduction is arbitrary, oppressive or
confiscatory. To repeat, there is no actual proof to back up this claim, and it could be that the
loss suffered by a business establishment was occasioned through its fault or negligence in not
adapting to the effects of the assailed law. The law uniformly applies to all business
establishments covered thereunder. There is, therefore, no unjust discrimination as the
aforesaid business establishments are faced with the same constraints. The necessity of proof is
all the more pertinent in this case because, as similarly observed by Justice Velasco in his
Concurring Opinion, the law has been in operation for over nine years now. However, the grim
picture painted by petitioners on the unconscionable losses to be indiscriminately suffered by
business establishments, which should have led to the closure of numerous business
establishments, has not come to pass. Verily, we cannot invalidate the assailed law based on
assumptions and conjectures. Without adequate proof, the presumption of constitutionality
must prevail. IV At this juncture, we note that the Dissent modified its original arguments by
including a new paragraph, to wit:

Section 9, Article III of the 1987 Constitution speaks of private property without any distinction.
It does not state that there should be profit before the taking of property is subject to just
compensation. The private property referred to for purposes of taking could be inherited,
donated, purchased, mortgaged, or as in this case, part of the gross sales of private
establishments. They are all private property and any taking should be attended by
corresponding payment of just compensation. The 20% discount granted to senior citizens
belong to private establishments, whether these establishments make a profit or suffer a loss.
In fact, the 20% discount applies to non-profit establishments like country, social, or golf clubs
which are open to the public and not only for exclusive membership. The issue of profit or loss
to the establishments is immaterial.110

Two things may be said of this argument. First, it contradicts the rest of the arguments of the
Dissent. After it states that the issue of profit or loss is immaterial, the Dissent proceeds to
argue that the 20% discount is not a minimal loss111 and that the 20% discount forces business
establishments to operate at a loss.112

Even the obiter in Central Luzon Drug Corporation,113 which the Dissent essentially adopts and
relies on, is premised on the permanent reduction of total revenues and the loss that business
establishments will be forced to suffer in arguing that the 20% discount constitutes a "taking"
under the power of eminent domain. Thus, when the Dissent now argues that the issue of
profit or loss is immaterial, it contradicts itself because it later argues, in order to justify that
there is a "taking" under the power of eminent domain in this case, that the 20% discount
forces business establishments to suffer a significant loss or to operate at a loss. Second, this
argument suffers from the same flaw as the Dissent's original arguments. It is an erroneous
characterization of the 20% discount. According to the Dissent, the 20% discount is part of the
gross sales and, hence, private property belonging to business establishments. However, as
previously discussed, the 20% discount is not private property actually owned and/or used by
the business establishment. It should be distinguished from properties like lands or buildings
actually used in the operation of a business establishment which, if appropriated for public use,
would amount to a "taking" under the power of eminent domain. Instead, the 20% discount is a
regulatory measure which impacts the pricing and, hence, the profitability of business
establishments. At the time the discount is imposed, no particular property of the business
establishment can be said to be "taken." That is, the State does not acquire or take anything
from the business establishment in the way that it takes a piece of private land to build a public
road. While the 20% discount may form part of the potential profits or income/gross sales 114 of
the business establishment, as similarly characterized by Justice Bersamin in his Concurring
Opinion, potential profits or income/gross sales are not private property, specifically cash or
money, already belonging to the business establishment. They are a mere expectancy because
they are potential fruits of the successful conduct of the business. Prior to the sale of goods or
services, a business establishment may be subject to State regulations, such as the 20% senior
citizen discount, which may impact the level or amount of profits or income/gross sales that can
be generated by such establishment. For this reason, the validity of the discount is to be
determined based on its overall effects on the operations of the business establishment.

Again, as previously discussed, the 20% discount does not automatically result in a 20%
reduction in profits, or, to align it with the term used by the Dissent, the 20% discount does not
mean that a 20% reduction in gross sales necessarily results. Because (1) the profit margin of a
product is not necessarily less than 20%, (2) not all customers of a business establishment are
senior citizens, and (3) the establishment may revise its pricing strategy, such reduction in
profits or income/gross sales may be prevented or, in the alternative, mitigated so that the
business establishment continues to operate profitably. Thus, even if we gratuitously assume
that some degree of reduction in profits or income/gross sales occurs because of the 20%
discount, it does not follow that the regulation is unreasonable, oppressive or confiscatory
because the business establishment may make the necessary adjustments to continue to
operate profitably. No evidence was presented by petitioners to show otherwise. In fact, no
evidence was presented by petitioners at all. Justice Leonen, in his Concurring and Dissenting
Opinion, characterizes "profits" (or income/gross sales) as an inchoate right. Another way to
view it, as stated by Justice Velasco in his Concurring Opinion, is that the business
establishment merely has a right to profits. The Constitution adverts to it as the right of an
enterprise to a reasonable return on investment.115

Undeniably, this right, like any other right, may be regulated under the police power of the
State to achieve important governmental objectives like protecting the interests and improving
the welfare of senior citizens. It should be noted though that potential profits or income/gross
sales are relevant in police power and eminent domain analyses because they may, in
appropriate cases, serve as an indicia when a regulation has gone "too far" as to amount to a
"taking" under the power of eminent domain. When the deprivation or reduction of profits or
income/gross sales is shown to be unreasonable, oppressive or confiscatory, then the
challenged governmental regulation may be nullified for being a "taking" under the power of
eminent domain. In such a case, it is not profits or income/gross sales which are actually taken
and appropriated for public use. Rather, when the regulation causes an establishment to incur
losses in an unreasonable, oppressive or confiscatory manner, what is actually taken is capital
and the right of the business establishment to a reasonable return on investment. If the
business losses are not halted because of the continued operation of the regulation, this
eventually leads to the destruction of the business and the total loss of the capital invested
therein. But, again, petitioners in this case failed to prove that the subject regulation is
unreasonable, oppressive or confiscatory.

V.

The Dissent further argues that we erroneously used price and rate of return on investment
control laws to justify the senior citizen discount law. According to the Dissent, only profits from
industries imbued with public interest may be regulated because this is a condition of their
franchises. Profits of establishments without franchises cannot be regulated permanently
because there is no law regulating their profits. The Dissent concludes that the permanent
reduction of total revenues or gross sales of business establishments without franchises is a
taking of private property under the power of eminent domain. In making this argument, it is
unfortunate that the Dissent quotes only a portion of the ponencia – The subject regulation
may be said to be similar to, but with substantial distinctions from, price control or rate of
return on investment control laws which are traditionally regarded as police power measures.
These laws generally regulate public utilities or industries/enterprises imbued with public
interest in order to protect consumers from exorbitant or unreasonable pricing as well as
temper corporate greed by controlling the rate of return on investment of these corporations
considering that they have a monopoly over the goods or services that they provide to the
general public. The subject regulation differs therefrom in that (1) the discount does not
prevent the establishments from adjusting the level of prices of their goods and services, and
(2) the discount does not apply to all customers of a given establishment but only to the class of
senior citizens. x x x116

The above paragraph, in full, states –

The subject regulation may be said to be similar to, but with substantial distinctions from, price
control or rate of return on investment control laws which are traditionally regarded as police
power measures. These laws generally regulate public utilities or industries/enterprises imbued
with public interest in order to protect consumers from exorbitant or unreasonable pricing as
well as temper corporate greed by controlling the rate of return on investment of these
corporations considering that they have a monopoly over the goods or services that they
provide to the general public. The subject regulation differs therefrom in that (1) the discount
does not prevent the establishments from adjusting the level of prices of their goods and
services, and (2) the discount does not apply to all customers of a given establishment but only
to the class of senior citizens.

Nonetheless, to the degree material to the resolution of this case, the 20% discount may be
properly viewed as belonging to the category of price regulatory measures which affects the
profitability of establishments subjected thereto. (Emphasis supplied)

The point of this paragraph is to simply show that the State has, in the past, regulated prices
and profits of business establishments. In other words, this type of regulatory measures is
traditionally recognized as police power measures so that the senior citizen discount may be
considered as a police power measure as well. What is more, the substantial distinctions
between price and rate of return on investment control laws vis-à-vis the senior citizen discount
law provide greater reason to uphold the validity of the senior citizen discount law. As
previously discussed, the ability to adjust prices allows the establishment subject to the senior
citizen discount to prevent or mitigate any reduction of profits or income/gross sales arising
from the giving of the discount. In contrast, establishments subject to price and rate of return
on investment control laws cannot adjust prices accordingly. Certainly, there is no intention to
say that price and rate of return on investment control laws are the justification for the senior
citizen discount law. Not at all. The justification for the senior citizen discount law is the plenary
powers of Congress. The legislative power to regulate business establishments is broad and
covers a wide array of areas and subjects. It is well within Congress’ legislative powers to
regulate the profits or income/gross sales of industries and enterprises, even those without
franchises. For what are franchises but mere legislative enactments? There is nothing in the
Constitution that prohibits Congress from regulating the profits or income/gross sales of
industries and enterprises without franchises. On the contrary, the social justice provisions of
the Constitution enjoin the State to regulate the "acquisition, ownership, use, and disposition"
of property and its increments.117

This may cover the regulation of profits or income/gross sales of all businesses, without
qualification, to attain the objective of diffusing wealth in order to protect and enhance the
right of all the people to human dignity.118

Thus, under the social justice policy of the Constitution, business establishments may be
compelled to contribute to uplifting the plight of vulnerable or marginalized groups in our
society provided that the regulation is not arbitrary, oppressive or confiscatory, or is not in
breach of some specific constitutional limitation. When the Dissent, therefore, states that the
"profits of private establishments which are non-franchisees cannot be regulated permanently,
and there is no such law regulating their profits permanently,"119 it is assuming what it ought to
prove. First, there are laws which, in effect, permanently regulate profits or income/gross sales
of establishments without franchises, and RA 9257 is one such law. And, second, Congress can
regulate such profits or income/gross sales because, as previously noted, there is nothing in the
Constitution to prevent it from doing so. Here, again, it must be emphasized that petitioners
failed to present any proof to show that the effects of the assailed law on their operations has
been unreasonable, oppressive or confiscatory. The permanent regulation of profits or
income/gross sales of business establishments, even those without franchises, is not as
uncommon as the Dissent depicts it to be. For instance, the minimum wage law allows the State
to set the minimum wage of employees in a given region or geographical area. Because of the
added labor costs arising from the minimum wage, a permanent reduction of profits or
income/gross sales would result, assuming that the employer does not increase the prices of his
goods or services. To illustrate, suppose it costs a company ₱5.00 to produce a product and it
sells the same at ₱10.00 with a 50% profit margin. Later, the State increases the minimum
wage. As a result, the company incurs greater labor costs so that it now costs ₱7.00 to produce
the same product. The profit per product of the company would be reduced to ₱3.00 with a
profit margin of 30%. The net effect would be the same as in the earlier example of granting a
20% senior citizen discount. As can be seen, the minimum wage law could, likewise, lead to a
permanent reduction of profits. Does this mean that the minimum wage law should, likewise,
be declared unconstitutional on the mere plea that it results in a permanent reduction of
profits? Taking it a step further, suppose the company decides to increase the price of its
product in order to offset the effects of the increase in labor cost; does this mean that the
minimum wage law, following the reasoning of the Dissent, is unconstitutional because the
consuming public is effectively made to subsidize the wage of a group of laborers, i.e., minimum
wage earners? The same reasoning can be adopted relative to the examples cited by the
Dissent which, according to it, are valid police power regulations. Article 157 of the Labor Code,
Sections 19 and 18 of the Social Security Law, and Section 7 of the Pag-IBIG Fund Law would
effectively increase the labor cost of a business establishment.1âwphi1 This would, in turn, be
integrated as part of the cost of its goods or services. Again, if the establishment does not
increase its prices, the net effect would be a permanent reduction in its profits or income/gross
sales. Following the reasoning of the Dissent that "any form of permanent taking of private
property (including profits or income/gross sales)120 is an exercise of eminent domain that
requires the State to pay just compensation,"121 then these statutory provisions would, likewise,
have to be declared unconstitutional. It does not matter that these benefits are deemed part of
the employees’ legislated wages because the net effect is the same, that is, it leads to higher
labor costs and a permanent reduction in the profits or income/gross sales of the business
establishments.122

The point then is this – most, if not all, regulatory measures imposed by the State on business
establishments impact, at some level, the latter’s prices and/or profits or income/gross sales. 123
If the Court were to sustain the Dissent’s theory, then a wholesale nullification of such
measures would inevitably result. The police power of the State and the social justice provisions
of the Constitution would, thus, be rendered nugatory. There is nothing sacrosanct about
profits or income/gross sales. This, we made clear in Carlos Superdrug Corporation: 124

Police power as an attribute to promote the common good would be diluted considerably if on
the mere plea of petitioners that they will suffer loss of earnings and capital, the questioned
provision is invalidated. Moreover, in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no basis for its nullification in view of
the presumption of validity which every law has in its favor.

xxxx

The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive
pricing component of the business. While the Constitution protects property rights petitioners
must the realities of business and the State, in the exercise of police power, can intervene in
the operations of a business which may result in an impairment of property rights in the
process.

Moreover, the right to property has a social dimension. While Article XIII of the Constitution
provides the percept for the protection of property, various laws and jurisprudence, particularly
on agrarian reform and the regulation of contracts and public utilities, continously serve as a
reminder for the promotion of public good.

Undeniably, the success of the senior citizens program rests largely on the support imparted by
petitioners and the other private establishments concerned. This being the case, the means
employed in invoking the active participation of the private sector, in order to achieve the
purpose or objective of the law, is reasonably and directly related. Without sufficient proof that
Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued implementation of the same
would be unconscionably detrimental to petitioners, the Court will refrain form quashing a
legislative act.125

In conclusion, we maintain that the correct rule in determining whether the subject regulatory
measure has amounted to a "taking" under the power of eminent domain is the one laid down
in Alalayan v. National Power Corporation126 and followed in Carlos Superdurg
Corporation127 consistent with long standing principles in police power and eminent domain
analysis. Thus, the deprivation or reduction of profits or income. Gross sales must be clearly
shown to be unreasonable, oppressive or confiscatory. Under the specific circumstances of this
case, such determination can only be made upon the presentation of competent proof which
petitioners failed to do. A law, which has been in operation for many years and promotes the
welfare of a group accorded special concern by the Constitution, cannot and should not be
summarily invalidated on a mere allegation that it reduces the profits or income/gross sales of
business establishments.

WHEREFORE, the Petition is hereby DISMISSED for lack of merit.

SO ORDERED.