Presidential Decree No. 1949.

”14chanroblesvirtuallawlibrary

On the same day, President Benigno Simeon C. Aquino III addressed the nation:chanRoblesvirtualLawlibrary
My message to the Supreme Court: We do not want two equal branches of government to go head to head,
needing a third branch to step in to intervene. We find it difficult to understand your decision. You had done
something similar in the past, and you tried to do it again; there are even those of the opinion that what you
attempted to commit was graver, if we were to base it on your decision. Abiding by the principle of
“presumption of regularity,” we assumed that you did the right thing; after all, you are the ones who should
EN BANC ostensibly have a better understanding of the law. And now, when we use the same mechanism—which, you
yourselves have admitted, benefit our countrymen—why is it then that we are wrong?
UDK-15143, January 21, 2015
We believe that the majority of you, like us, want only the best for the Filipino people. To the honorable
justices of the Supreme Court: Help us help our countrymen. We ask that you review your decision, this time
IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY taking into consideration the points I have raised tonight. The nation hopes for your careful deliberation and
MOVEMENT v. ABOLITION OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF FISCAL response. And I hope that once you’ve examined the arguments I will submit, regarding the law and about our
AUTONOMY. economy, solidarity will ensue—thus strengthening the entire government’s capability to push for the interests
of the nation.15
RESOLUTION The issue for resolution is whether petitioner Rolly Mijares has sufficiently shown grounds for this court to
grant the petition and issue a writ of mandamus.
LEONEN, J.:
Petitioner argues that Congress “gravely abused its discretion with a blatant usurpation of judicial
independence and fiscal autonomy of the Supreme Court.”16chanroblesvirtuallawlibrary
This case involves the proposed bills abolishing the Judiciary Development Fund  and replacing it with the
1

“Judiciary Support Fund.” Funds collected from the proposed Judiciary Support Fund shall be remitted to the
Petitioner points out that Congress is exercising its power “in an arbitrary and despotic manner by reason of
national treasury and Congress shall determine how the funds will be used.2chanroblesvirtuallawlibrary
passion or personal hostility by abolishing the ‘Judiciary Development Fund’ (JDF) of the Supreme
Court.”17chanroblesvirtuallawlibrary
Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of mandamus in order to compel this court to
exercise its judicial independence and fiscal autonomy against the perceived hostility of
With regard to his prayer for the issuance of the writ of mandamus, petitioner avers that Congress should not
Congress.3chanroblesvirtuallawlibrary
act as “wreckers of the law”18 by threatening “to clip the powers of the High Tribunal[.]”19 Congress committed
a “blunder of monumental proportions”20 when it reduced the judiciary’s 2015
This matter was raised to this court through the letter4 dated August 27, 2014, signed by Mijares and
budget.21chanroblesvirtuallawlibrary
addressed to the Chief Justice and the Associate Justices of the Supreme Court. The letter is
captioned:chanRoblesvirtualLawlibrary
Petitioner prays that this court exercise its powers to “REVOKE/ABROGATE and EXPUNGE whatever
Petition for Mandamus with Manifestation to invoke the Judicial Independence and Fiscal Autonomy as
irreconcilable contravention of existing laws affecting the judicial independence and fiscal autonomy as
mandated under the Constitution5
mandated under the Constitution to better serve public interest and general welfare of the
The letter was referred to the Clerk of Court En Banc for appropriate action.6 It was then docketed as UDK-
people.”22chanroblesvirtuallawlibrary
15143.7chanroblesvirtuallawlibrary
This court resolves to deny the petition.
In the letter-petition, Mijares alleges that he is “a Filipino citizen, and a concerned taxpayer[.]”8 He filed this
petition as part of his “continuing crusade to defend and uphold the Constitution”9 because he believes in the
The power of judicial review, like all powers granted by the Constitution, is subject to certain limitations.
rule of law.10 He is concerned about the threats against the judiciary after this court promulgated Priority
Petitioner must comply with all the requisites for judicial review before this court may take cognizance of the
Development Assistance Fund11 case on November 19, 2013 and Disbursement Acceleration Program12 case on
case. The requisites are:chanRoblesvirtualLawlibrary
July 1, 2014.
(1) there must be an actual case or controversy calling for the exercise of judicial power;
   
The complaint implied that certain acts of members of Congress and the President after the promulgation of
(2) the person challenging the act must have the standing to question the validity of the subject act or
these cases show a threat to judicial independence.
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;
In the first week of July 2014, Ilocos Norte Representative Rodolfo Fariñas filed House Bill No. 4690, which
   
would require this court to remit its Judiciary Development Fund collections to the national
(3) the question of constitutionality must be raised at the earliest opportunity; and
treasury.13chanroblesvirtuallawlibrary
   
(4) the issue of constitutionality must be the very lis mota of the case.23
A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed House Bill No. 4738 entitled “The
Petitioner’s failure to comply with the first two requisites warrants the outright dismissal of this petition.
Act Creating the Judicial Support Fund (JSF) under the National Treasury, repealing for the purpose
1
 I Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
The petition does not comply with the requisites of judicial review
No actual case or controversy
Article VIII, Section 1 of the Constitution provides that:chanRoblesvirtualLawlibrary
ARTICLE VIII
Judicial Department
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
One of the requirements for this court to exercise its power of judicial review is the existence of an actual
controversy. This means that there must be “an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.”24 As emphasized by this court in Information Technology Foundation of the Phils. v. Commission on
Elections:25
It is well-established in this jurisdiction that “. . . for a court to exercise its power of adjudication, there must
be an actual case or controversy — one which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of justice. . . . [C]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging.” The controversy must be
justiciable — definite and concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue.
There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive
in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.26
For this court to rule on constitutional issues, there must first be a justiciable controversy. Pleadings before
this court must show a violation of an existing legal right or a controversy that is ripe for judicial
determination. In the concurring opinion in Belgica v. Ochoa:chanRoblesvirtualLawlibrary
Basic in litigation raising constitutional issues is the requirement that there must be an actual case or
controversy. This Court cannot render an advisory opinion. We assume that the Constitution binds all other
constitutional departments, instrumentalities, and organs. We are aware that in the exercise of their various
powers, they do interpret the text of the Constitution in the light of contemporary needs that they should
address. A policy that reduces this Court to an adviser for official acts by the other departments that have not
yet been done would unnecessarily tax our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to make a
final and binding construction of law. This power should generally be reserved when the departments have
exhausted any and all acts that would remedy any perceived violation of right. The rationale that defines the
extent of our doctrines laying down exceptions to our rules on justiciability are clear: Not only should the
pleadings show a convincing violation of a right, but the impact should be shown to be so grave, imminent,
and irreparable that any delayed exercise of judicial review or deference would undermine fundamental
principles that should be enjoyed by the party complaining or the constituents that they legitimately
represent.27 (Emphasis supplied)
The reason for this requirement was explained in Angara v. Electoral Commission:28
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions
of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.29
Petitioner’s allegations show that he wants this court to strike down the proposed bills abolishing the Judiciary
Development Fund. This court, however, must act only within its powers granted under the Constitution. This
court is not empowered to review proposed bills because a bill is not a law.
Montesclaros v. COMELEC30 involved the postponement of the 2002 Sangguniang Kabataan Elections and the
lowering of the age requirement in the Sangguniang Kabataan “to at least 15 but not more than 18 years of
age.”31 Montesclaros and other parties filed a petition for certiorari, prohibition, and mandamus with prayer for
the issuance of a temporary restraining order.32 One of the reliefs prayed for was:chanRoblesvirtualLawlibrary
a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other
respondents’ issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.33
This court held that:chanRoblesvirtualLawlibrary
. . . petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6,
2002 and should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent
public respondents from passing laws and issuing resolutions and orders that would lower the membership age
in the SK. . . .
....
Petitioners’ prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in
the SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial review
because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court.
A proposed bill, having no legal effect, violates no constitutional right or duty. The Court has no power to
declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo. . . .
....
Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can
exercise its power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into
motion the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of
its legislative powers are not subject to judicial restraint: the filing of bills by members of Congress, the
approval of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of approved
bills, and the eventual approval into law of the reconciled bills by each chamber of Congress. Absent a clear
violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot
exercise its power of judicial review over the internal processes or procedures of Congress.
....
. . . To do so would destroy the delicate system of checks and balances finely crafted by the Constitution for
the three co-equal, coordinate and independent branches of government.34 (Emphasis supplied, citations
omitted)
Similar to Montesclaros, petitioner is asking this court to stop Congress from passing laws that will abolish the
Judiciary Development Fund. This court has explained that the filing of bills is within the legislative power of
2
Congress and is “not subject to judicial restraint[.]”35 A proposed bill produces no legal effects until it is passed
into law. Under the Constitution, the judiciary is mandated to interpret laws. It cannot speculate on the
constitutionality or unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere
speculations or issues that are not ripe for judicial determination.36 The petition, therefore, does not present
any actual case or controversy that is ripe for this court’s determination.
Petitioner has no legal standing
Even assuming that there is an actual case or controversy that this court must resolve, petitioner has no legal
standing to question the validity of the proposed bill. The rule on legal standing has been discussed in David v.
Macapagal-Arroyo:37
Locus standi is defined as “a right of appearance in a court of justice on a given question.” In private suits,
standing is governed by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that “every action must be prosecuted or defended in the name of
the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit.” Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be suing as a “stranger,” or in the
category of a “citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled to seek
judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a “citizen” or “taxpayer.”
....
This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have “a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result.” The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.38
Petitioner has not shown that he has sustained or will sustain a direct injury if the proposed bill is passed into
law. While his concern for judicial independence is laudable, it does not, by itself, clothe him with the requisite
standing to question the constitutionality of a proposed bill that may only affect the judiciary.
This court, however, has occasionally relaxed the rules on standing when the issues involved are of
“transcendental importance” to the public. Specifically, this court has stated that:chanRoblesvirtualLawlibrary
the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of paramount public interest.39
Transcendental importance is not defined in our jurisprudence, thus, in Francisco v. House of
Representatives:40
There being no doctrinal definition of transcendental importance, the following instructive determinants
formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack
of any other party with a more direct and specific interest in raising the questions being raised.41
A mere invocation of transcendental importance in the pleading is not enough for this court to set aside
procedural rules:chanRoblesvirtualLawlibrary
Whether an issue is of transcendental importance is a matter determined by this court on a case-to-case basis.
An allegation of transcendental importance must be supported by the proper allegations.42
None of the determinants in Francisco are present in this case. The events feared by petitioner are merely
speculative and conjectural.
In addition to the determinants in Francisco, it must also be shown that there is a clear or imminent threat to
fundamental rights. In an opinion in Imbong v. Ochoa:43
The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared unconstitutional in
whole or in any of its parts given the petitions filed in this case.
None of the petitions properly present an “actual case or controversy,” which deserves the exercise of our
awesome power of judicial review. It is our duty not to rule on the abstract and speculative issues barren of
actual facts. These consolidated petitions, which contain bare allegations, do not provide the proper venue to
decide on fundamental issues. The law in question is needed social legislation.
That we rule on these special civil actions for certiorari and prohibition — which amounts to a pre-enforcement
free-wheeling facial review of the statute and the implementing rules and regulations — is very bad precedent.
The issues are far from justiciable. Petitioners claim in their class suits that they entirely represent a whole
religion, the Filipino nation and, worse, all the unborn. The intervenors also claim the same representation:
Filipinos and Catholics. Many of the petitions also sue the President of the Republic.
We should apply our rules rigorously and dismiss these cases. The transcendental importance of the issues
they want us to decide will be better served when we wait for the proper cases with the proper parties
suffering real, actual or more imminent injury. There is no showing of an injury so great and so imminent that
we cannot wait for these cases.44 (Emphasis supplied)
The events feared by petitioner are contingent on the passing of the proposed bill in Congress. The threat of
imminent injury is not yet manifest since there is no guarantee that the bill will even be passed into law. There
is no transcendental interest in this case to justify the relaxation of technical rules.
II
Requisites for the issuance of a writ of mandamus not shown
Rule 65, Section 3 of the 1997 Rules of Civil Procedure provides that:chanRoblesvirtualLawlibrary
Rule 65
CERTIORARI, PROHIBITION AND MANDAMUS
SEC. 3. Petition for mandamus.— When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph
of section 3, Rule 46.cralawred
The writ of mandamus will issue when the act sought to be performed is ministerial.45 An act is ministerial
when it does not require the exercise of judgment and the act is performed in compliance with a legal
mandate.46 In a petition for mandamus, the burden of proof is on petitioner to show that one is entitled to the
performance of a legal right and that respondent has a corresponding duty to perform the act.47 Mandamus will
not lie “to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to
3
give to the applicant anything to which he is not entitled by law.”48chanroblesvirtuallawlibrary Estimated Monthly MOOE Per
Type of Court Number of Courts57
Court
In this case, petitioner has not shown how he is entitled to the relief prayed for. Hence, this court cannot be Regional Trial Courts 969 P46,408.67
compelled to exercise its power of judicial review since there is no actual case or controversy.
Metropolitan Trial Courts 106 P46,071.89
Municipal Trial Courts in Cities 229 P46,206.01
Final note
Municipal Circuit Trial Courts 468 P46,305.69
The judiciary is the weakest branch of government. It is true that courts have power to declare what law is Municipal Trial Courts 366 P46,423.30
given a set of facts, but it does not have an army to enforce its writs. Courts do not have the power of the Shari’a District Courts 5 P40,696.83
purse. “Except for a constitutional provision that requires that the budget of the judiciary should not go below Shari’a Circuit Courts 51 P45,883.68
the appropriation for the previous year, it is beholden to the Congress depending on how low the budget
is.”49chanroblesvirtuallawlibrary

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

Maintenance and Other Operating Expenses or MOOE “pays for sundry matters such as utility payments,
paper, gasoline and others.”55 The MOOE granted to the lower courts in 2014 was P1,220,905,000.00.56 While
this might seem like a large amount, the amount significantly dwindles when divided among all lower courts in
the country. Per the 2014 General Appropriations Act (GAA), the approximate monthly MOOE for all courts are
estimated as follows:chanRoblesvirtualLawlibrary

4
These amounts were arrived at using the following computation:chanRoblesvirtualLawlibrary

5
 Number of Courts x MOOE
---------------------------    
Total Number of Courts    
-------------------------------------------------------------------------------------
Number of Courts      
In comparison, the 2014 MOOE allocation for the House of Representatives was P3,386,439,000.0058 or about
P282.2 million per month for the maintenance and operation of the House of Representatives compound in
Batasan Hills. Even if this amount was divided equally among the 234 legislative districts, a representative’s
office space would still have a monthly MOOE allocation of approximately P1.2 million, which is significantly
higher than the average P46,000.00 allocated monthly to each trial court.
It was only in 2013 that the budget allocated to the judiciary included an item for the construction,
rehabilitation, and repair of the halls of justice in the capital outlay. The amount allocated was P1
million.59chanroblesvirtuallawlibrary
In 2014, there was no item for the construction, rehabilitation, and repair of the halls of justice.60 This
allocation would have been used to help fund the repair of existing halls of justice and the construction of new
halls of justice in the entire country, including those courts destroyed by Typhoon Yolanda and the 2013
earthquake.
The entire budget for the judiciary, however, does not only come from the national government. The
Constitution grants fiscal autonomy to the judiciary to maintain its independence.61 In Bengzon v. Drilon:62
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and utilize the funds appropriated for their
operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution
but especially as regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based.63
Courts, therefore, must also be accoquntable with their own budget. The Judiciary Development Fund, used to
augment the expenses of the judiciary, is regularly accounted for by this court on a quarterly basis. The
financial reports are readily available at the Supreme Court website.64chanroblesvirtuallawlibrary
These funds, however, are still not enough to meet the expenses of lower courts and guarantee credible
compensation for their personnel. The reality is that halls of justice exist because we rely on the generosity of
local government units that provide additional subsidy to our judges.65 If not, the budget for the construction,
repair, and rehabilitation of halls of justice is with the Department of Justice.66chanroblesvirtuallawlibrary
As a result, our fiscal autonomy and judicial independence are often undermined by low levels of budgetary
outlay, the lack of provision for maintenance and operating expenses, and the reliance on local government
units and the Department of Justice.
“Courts are not constitutionally built to do political lobbying. By constitutional design, it is a co-equal
department to the Congress and the Executive. By temperament, our arguments are legal, not political. We
are best when we lay down all our premises in the finding of facts, interpretation of the law and understanding
of precedents. We are not trained to produce a political statement or a media
release.”67chanroblesvirtuallawlibrary
“Because of the nature of courts, that is – that it has to decide in favor of one party, we may not have a
political base. Certainly, we should not even consider building a political base. All we have is an abiding faith
that we should do what we could to ensure that the Rule of Law prevails. It seems that we have no champions
     
     
/ 12  
     
when it comes to ensuring the material basis for fiscal autonomy or judicial
independence.”68chanroblesvirtuallawlibrary
For this reason, we appreciate petitioner’s concern for the judiciary. It is often only through the vigilance of
private citizens that issues relating to the judiciary can be discussed in the political sphere. Unfortunately, the
remedy he seeks cannot be granted by this court. But his crusade is not a lost cause. Considering that what he
seeks to be struck down is a proposed bill, it would be better for him to air his concerns by lobbying in
Congress. There, he may discover the representatives and senators who may have a similar enthusiastic
response to truly making the needed investments in the Rule of Law.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552               October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network
(SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF
THE PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act
to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of
2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network,
Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer,
filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date,
6
petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R.
No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance
Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng
Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity,
Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap
(KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang
Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health
Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and joined by concerned
citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary
John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos
Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua
and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng
mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and
Peace (EMJP), and Promotion of Church People’s Response (PCPR), which were represented by their respective
officers5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed
as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty
(CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a
petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations
mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a
petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the
BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of
the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales
as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance
Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces
of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief
Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National
Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-
Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative
elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial
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. (Emphasis and
underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there
must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the
lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most essential, renders the
discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.
The gist of the question on standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show
not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is
lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.
7
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally
suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the
injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable
action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the
government, especially the military; whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that
petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated,
necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any
charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to "close security surveillance by state security forces," their members followed by
"suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the purported "surveillance" and the implementation
of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante,
HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents’ alleged action of tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging, according to petitioners,
is tantamount to the effects of proscription without following the procedure under the law.15 The petition of
BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain;
and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that
judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded
as forming part of the common knowledge of every person. As the common knowledge of man ranges far and
wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge.
But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-
existence of a fact of which the court has no constructive knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed
against them, three years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on
their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of
America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo
Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU
classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to
be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or
outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007
up to the present, petitioner-organizations have conducted their activities fully and freely without any threat
of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino
Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the
Aquino Administration21 of resuming peace talks with the NDF, the government is not imminently disposed to
ask for the judicial proscription of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific interests in the questions
being raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA
9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding
to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-
organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
8
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges
were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is
defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by
the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion,
its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA
9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has
been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold
the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested
or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any
of its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed
statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed
to even a single arrest or detention effected under RA 9372.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to
actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance,"
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political
challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of
surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA
parties having adverse legal interests. In other words, the pleadings must show an active antagonistic
9372. Similarly lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III,
assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a
who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372.
real and not merely a theoretical question or issue. There ought to be an actual and substantial
Outside these gratuitous statements, no concrete injury to them has been pinpointed.
controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental importance, "which must be settled early"
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized
and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they
City was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails
have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held
to allege that an application for a license to operate a radio or television station has been denied or granted by
sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of
the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a
sustaining, direct injury as a result of the law’s enforcement. To rule otherwise would be to corrupt the settled
hypothetical problem.35
doctrine of locus standi, as every worthy cause is an interest shared by the general public.

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is
specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in
proper only when there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing
Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based
must rest on direct and personal interest in the proceeding.29
merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national
law, there being no actual controversy between real litigants.
RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.
the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not
establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate
the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of
9
prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of
seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly
shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there
would then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of
RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has
been established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts"
in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to
render an advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the
Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency,"
where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official
are merely theorized, lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of
the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of
any power granted by law may be abused.45 Allegations of abuse must be anchored on real events before
courts may step in to settle actual controversies involving rights which are legally demandable and
enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of
terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no
application in the present case since these doctrines apply only to free speech cases; and that RA 9372
regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of
thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail
a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two
doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v.
Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and
Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth
and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for
testing the validity of penal statutes."50 It added that, at any rate, the challenged provision, under which the
therein petitioner was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial
invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis,
and concluded that the therein subject election offense53 under the Voter’s Registration Act of 1996, with which
the therein petitioners were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in
the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial"
invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The
possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to fester because
of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances
as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to
a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff
who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."
10
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing
"on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases.
They cannot be made to do service when what is involved is a criminal statute. With respect to such statute,
the established rule is that "one to whom application of a statute is constitutional will not be heard to attack
the statute on the ground that impliedly it might also be taken as applying to other persons or other situations
in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they
might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a
departure from the case and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out
in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort," and is generally disfavored. In determining the
constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to
the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is
protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis
of its actual operation to the parties, but also on the assumption or prediction that its very existence may
cause others not before the court to refrain from constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on
protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale
is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and
"underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a
facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution
of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the
doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would,
essentially, force the court to consider third parties who are not before it. As I have said in my opposition to
the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal
with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power
to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.65 (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial
kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free
speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot
areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire
statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
11
parties not courageous enough to bring suit. The Court assumes that an overbroad law’s "very existence may
cause others not before the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third
parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that
the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment,68 and that claims of facial overbreadth have been entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will
an overbreadth challenge succeed against a law or regulation that is not specifically addressed
to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value
to all society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to petitioners, a limited
vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or
imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test
on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to
review the law "on its face and in its entirety."72 It stressed that "statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must
be examined in light of the specific facts of the case at hand and not with regard to the statute's facial
validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty
under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine
into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article
202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the
present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements
may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised
Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime
sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the
offender is actuated by the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the
element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some
form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including
the coercion of the government to accede to an "unlawful demand." Given the presence of the first element,
any attempt at singling out or highlighting the communicative component of the prohibition cannot
recategorize the unprotected conduct into a protected speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the
part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount
of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that
the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take
down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating
speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent
of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This
holds true a fortiori in the present case where the expression figures only as an inevitable incident of making
the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances brought about through
speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a
course of conduct illegal merely because the  conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to enforce laws against agreements
in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics
and underscoring supplied). Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a
facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal
statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.In Holder, on the other hand, the US Supreme Court allowed the
pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs
faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus
legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative
counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an
extension of a failed legislative lobbying in Congress.
12
WHEREFORE, the petitions are DISMISSED. SO ORDERED.
G.R. No. 211010
VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN, REPRESENTING THE CARLESS PEOPLE OF
THE PHILIPPINES; GABRIEL ANASTACIO, REPRESENTED BY HIS MOTHER GRACE ANASTACIO,
DENNIS ORLANDOSANGALANG, REPRESENTED BY HIS MOTHER MAY ALILI SANGALANG, MARIA
PAULINA CASTANEDA, REPRESENTED BY HER MOTHERATRICIAANN CASTANEDA, REPRESENTING
THE CHILDREN OF THE PHILIPPINES AND CHILDREN OF THE FUTURE; AND RENATO PINEDA, JR.,
ARON KERR MENGUITO, MAY ALILI SANGALANG, AND GLYNDA BATHAN BATERINA, REPRESENTING
CAROWNERS WHO WOULD RATHER NOT HA VE CARS IF GOOD PUBLIC TRANSPORTATION WERE
SAFE, CONVENIENT, ACCESSIBLE AND RELIABLE, Petitioners
vs
THE CLIMATE CHANGE COMMISSION, REPRESENTED BY ITS CHAIRMAN, HIS EXCELLENCY BENIGNO
S. AQUINO III, AND ITS COMMISSIONERS MARY ANN LUCILLE SERING, HEHERSON
ALVAREZANDNADAREV SANO; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC)
REPRESENTED BY ITS SECRETARY, HONORABLE JOSEPH ABAYA; DEPARTMENT OF PUBLIC WORKS
AND HIGHWAYS (DPWH) AND THE ROAD BOARD, REPRESENTED BY ITS SECRETARY, HONORABLE
ROGELIO SINGSON; DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), REPRESENTED
BY ITS SECRETARY, HONORABLE MANUEL ROXAS; DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), REPRESENTED BY ITS SECRETARY, HONORABLE RAMON PAJE; DEPARTMENT
OF BUDGET AND MANAGEMENT (DBM), REPRESENTED BY ITS SECRETARY, HONORABLE FLORENCIO
ABAD; METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA), REPRESENTED BY ITS
CHAIRMAN, FRANCIS TOLENTINO; DEPARTMENT OF AGRICULTURE (DA), REPRESENTED BY ITS
SECRETARY, HONORABLE PROCESO ALCALA; AND JOHN DOES, REPRESENTING AS YET UNNAMED
LOCAL GOVERNMENT UNITS AND THEIR RESPECTIVE LOCAL CHIEF EXECUTIVE, JURIDICAL
ENTITIES, AND NATURAL PERSONS WHO FAIL OR REFUSE TO IMPLEMENT THE LAW OR COOPERATE
IN THE IMPLEMENTATION OF THE LAW, Respondents
DECISION
CAGUIOA, J.:
This is a petition for the issuance of writs of kalikasan and continuing mandamus to compel the
implementation of the following environmental laws and executive issuances - Republic Act No. (RA)
97291 (Climate Change Act), and RA 87492 (Clean Air Act); Executive Order No. 7743 (BO 774); AO 254, s.
20094 (AO 254); and Administrative Order No. 171, s. 20075 (AO 171).
Accordingly, the Petitioners seek to compel: (a) the public respondents to: (1) implement the Road Sharing
Principle in all roads; (2) divide all roads lengthwise, one-half (½) for all-weather sidewalk and bicycling, the
other half for Filipino-made transport vehicles; (3) submit a time-bound action plan to implement the Road
Sharing Principle throughout the country; (b) the Office of the President, Cabinet officials and public
employees of Cabinet members to reduce their fuel consumption by fifty percent (50%) and to take public
transportation fifty percent (50%) of the time; (c) Public respondent DPWH to demarcate and delineate the
road right-of-way in all roads and sidewalks; and (d) Public respondent DBM to instantly release funds for
Road Users' Tax.6
The Facts
To address the clamor for a more tangible response to climate change, Former President Gloria Macapagal-
Arroyo issued AO 171 which created the Presidential Task Force on Climate Change (PTFCC) on February 20,
2007. This body was reorganized through BO 774, which designated the President as Chairperson, and cabinet
secretaries as members of the Task Force. EO 774 expressed what is now referred to by the petitioners as the
"Road Sharing Principle." Its Section 9(a) reads:
Section 9. Task Group on Fossil Fuels. - (a) To reduce the consumption of fossil fuels, the Department of
Transportation and Communications (DOTC) shall lead a Task Group to reform the transportation sector. The
new paradigm in the movement of men and things must follow a simple principle: "Those who have less in
wheels must have more in road." For this purpose, the system shall favor nonmotorized locomotion and
collective transportation system (walking, bicycling, and the man-powered mini-train).
In 2009, AO 254 was issued, mandating the DOTC (as lead agency for the Task Group on Fossil Fuels
or TGFF) to formulate a national Environmentally Sustainable Transport Strategy (EST) for the Philippines. The
Road Sharing Principle is similarly mentioned, thus:
SECTION 4. Functions of the TGFF- In addition to the functions provided in EO 774, the TGFF shall initiate
and pursue the formulation of the National EST Strategy for the Philippines.
Specifically, the TGFF shall perform the following functions:
(a) Reform the transport sector to reduce the consumption of fossil fuels. The new paradigm in the movement
of men and things must follow a simple principle: "Those who have less in wheels must have more in road."
For this purpose, the system shall favor non-motorized locomotion and collective transportation system
(walking, bicycling, and the manpowered mini-train).
xxxx
Later that same year, Congress passed the Climate Change Act. It created the Climate Change Commission
which absorbed the functions of the PTFCC and became the lead policy-making body of the government which
shall be tasked to coordinate, monitor and evaluate the programs and action plans of the government relating
to climate change.7
Herein petitioners wrote respondents regarding their pleas for implementation of the Road Sharing Principle,
demanding the reform of the road and transportation system in the whole country within thirty (30) days from
receipt of the said letter - foremost, through the bifurcation of roads and the reduction of official and
government fuel consumption by fifty percent (50%).8 Claiming to have not received a response, they filed this
petition.
The Petition
Petitioners are Carless People of the Philippines, parents, representing their children, who in turn represent
"Children of the Future, and Car-owners who would rather not have cars if good public transportation were
safe, convenient, accessible, available, and reliable". They claim that they are entitled to the issuance of the
extraordinary writs due to the alleged failure and refusal of respondents to perform an act mandated by
environmental laws, and violation of environmental laws resulting in environmental damage of such magnitude
as to prejudice the life, health and property of all Filipinos.9
13
These identified violations10 include: (a) The government's violation of "atmospheric trust" as provided under
Article XI, Section 1 of the Constitution, and thoughtless extravagance in the midst of acute public want under
Article 25 of the Civil Code for failure to reduce personal and official consumption of fossil fuels by at least fifty
percent (50%); (b) DOTC and DPWH's failure to implement the Road Sharing Principle under EO 774; (c) DA's
failure to devote public open spaces along sidewalks, roads and parking lots to sustainable urban farming as
mandated by Section 12(b)11 f EO 774; (d) DILG's failure to coordinate with local government units (LGUs) to
guide them on the Road Sharing Principle under Section 9(g)12 of EO 774; (e) DENR's failure to reduce air
pollutant emissions; and lastly, (f) DBM's failure to make available Road Users' Tax for purposes stated in
Section 9(e)13 of EO 774.
In gist, petitioners contend that respondents' failure to implement the foregoing laws and executive issuances
resulted in the continued degradation of air quality, particularly in Metro Manila, in violation of the petitioners'
constitutional right to a balanced and healthful ecology,14 and may even be tantamount to deprivation of life,
and of life sources or "land, water, and air" by the government without due process of law.15 They also decry
the "unequal" protection of laws in the prevailing scheme, claiming that ninety-eight percent (98%) of Filipinos
are discriminated against by the law when the car-owning two percent (2%) is given almost all of the road
space and while large budgets are allocated for construction and maintenance of roads, hardly any budget is
given for sidewalks, bike lanes and non-motorized transportation systems.16
Respondents, through the Office of the Solicitor General, filed their Comment seeking the outright dismissal of
the petition for lack of standing and failure to adhere to the doctrine of hierarchy of courts.17 Moreover,
respondents argue that petitioners are not entitled to the reliefs prayed for.
Specifically, respondents assert that petitioners are not entitled to a writ of kalikasan because they failed to
show that the public respondents are guilty of an unlawful act or omission; state the environmental law/s
violated; show environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants of two or more cities; and prove that non- implementation of Road Sharing Principle will cause
environmental damage. Respondents likewise assert that petitioners are similarly not entitled to a
Continuing Mandamus because: (a) there is no showing of a direct or personal injury or a clear legal right to
the thing demanded; (b) the writ will not compel a discretionary act or anything not in a public officer's duty
to do (i.e. the manner by which the Road Sharing Principle will be applied; and to compel DA to exercise
jurisdiction over roadside lands); and (c) DBM cannot be compelled to make an instant release of funds as the
same requires an appropriation made by law (Article VI, Section 29[1] of the Constitution) and the use of the
Road Users' Tax (more appropriately, the Motor Vehicle Users' Charge) requires prior approval of the Road
Board.18
In any event, respondents denied the specific violations alleged in the petition, stating that they have taken
and continue to take measures to improve the traffic situation in Philippine roads and to improve the
environment condition - through projects and programs such as: priority tagging of expenditures for climate
change adaptation and mitigation, the Integrated Transport System which is aimed to decongest major
thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and
Urban Re-Greening Programs. These projects are individually and jointly implemented by the public
respondents to improve the traffic condition and mitigate the effects of motorized vehicles on the
environment.19 Contrary to petitioners' claims, public respondents assert that they consider the impact of the
transport sector on the environment, as shown in the Philippine National Implementation Plan on Environment
Improvement in the Transport Sector which targets air pollution improvement actions, greenhouse gases
emission mitigation, and updating of noise pollution standards for the transport sector.
In response, petitioner filed their Reply, substantially reiterating the arguments they raised in the Petition.
ISSUES
From the foregoing submissions, the main issues for resolution are:
1. Whether or not the petitioners have standing to file the petition;
2. Whether or not the petition should be dismissed for failing to adhere to the doctrine of hierarchy of courts;
and
3. Whether or not a writ of Kalikasan and/or Continuing Mandamus should issue.
RULING
The petition must be dismissed.
Procedural Issues
Citing Section 1, Rule 7 of the Rules of Procedure for Environmental Cases20 (RPEC), respondents argue that
the petitioners failed to show that they have the requisite standing to file the petition, being representatives of
a rather amorphous sector of society and without a concrete interest or injury.21 Petitioners counter that they
filed the suit as citizens, taxpayers, and representatives; that the rules on standing had been relaxed following
the decision in Oposa v. Factoran;22 and that, in any event, legal standing is a procedural technicality which
the Court may set aside in its discretion.23
The Court agrees with the petitioners' position. The RPEC did liberalize the requirements on standing, allowing
the filing of citizen's suit for the enforcement of rights and obligations under environmental laws.24 This has
been confirmed by this Court's rulings in Arigo v. Swift,25 and International Service for the Acquisition of Agri-
BioTech Applications, Inc. v. Greenpeace Southeast Asia (Philippines).26 However, it bears noting that there is
a difference between a petition for the issuance of a writ of kalikasan, wherein it is sufficient that the person
filing represents the inhabitants prejudiced by the environmental damage subject of the writ;27 and a petition
for the issuance of a writ of continuing mandamus, which is only available to one who is personally aggrieved
by the unlawful act or omission. 28
Respondents also seek the dismissal of the petition on the ground that the petitioners failed to adhere to the
doctrine of hierarchy of courts, reasoning that since a petition for the issuance of a writ of kalikasan must be
filed with the Supreme Court or with any of the stations of the Court of Appeals,29 then the doctrine of
hierarchy of courts is applicable.30 Petitioners, on the other hand, cite the same provision and argue that direct
recourse to this Court is available, and that the provision shows that the remedy to environmental damage
should not be limited to the territorial jurisdiction of the lower courts.31
The respondents' argument does not persuade. Under the RPEC, the writ of kalikasan is an extraordinary
remedy covering environmental damage of such magnitude that will prejudice the life, health or property of
inhabitants in two or more cities or provinces. It is designed for a narrow but special purpose: to accord a
stronger protection for environmental rights, aiming, among others, to provide a speedy and effective
resolution of a case involving the violation of one's constitutional right to a healthful and balanced ecology that
transcends political and territorial boundaries, and to address the potentially exponential nature of large-scale
ecological threats.32 At the very least, the magnitude of the ecological problems contemplated under the RPEC
14
satisfies at least one of the exceptions to the rule on hierarchy of courts, as when direct resort is allowed
where it is dictated by public welfare.1âwphi1 Given that the RPEC allows direct resort to this Court,33 it is
ultimately within the Court's discretion whether or not to accept petitions brought directly before it.
Requisites for issuance of Writs of
Kalikasan  and Continuing
Mandamus
We find that the petitioners failed to establish the requisites for the issuance of the writs prayed for.
For a writ of kalikasan to issue, the following requisites must concur:
1. there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;
2. the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or
private individual or entity; and
3. the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.34
It is well-settled that a party claiming the privilege for the issuance of a writ of kalikasan has to show that a
law, rule or regulation was violated or would be violated.35
In this case, apart from repeated invocation of the constitutional right to health and to a balanced and
healthful ecology and bare allegations that their right was violated, the petitioners failed to show that public
respondents are guilty of any unlawful act or omission that constitutes a violation of the petitioners' right to a
balanced and healthful ecology.
While there can be no disagreement with the general propositions put forth by the petitioners on the
correlation of air quality and public health, petitioners have not been able to show that respondents are guilty
of violation or neglect of environmental laws that causes or contributes to bad air quality. Notably, apart from
bare allegations, petitioners were not able to show that respondents failed to execute any of the laws
petitioners cited. In fact, apart from adducing expert testimony on the adverse effects of air pollution on public
health, the petitioners did not go beyond mere allegation in establishing the unlawful acts or omissions on the
part of the public respondents that have a causal link or reasonable connection to the actual or threatened
violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under
the Rules, as required of petitions of this nature.36
Moreover, the National Air Quality Status Report for 2005-2007 (NAQSR) submitted by the petitioners belies
their claim that the DENR failed to reduce air pollutant emissions - in fact, the NAQSR shows that the National
Ambient Total Suspended Particulates (TSP) value used to determine air quality has steadily declined from
2004 to 2007,37 and while the values still exceed the air quality guideline value, it has remained on this same
downward trend until as recently as 2011.38
On the other hand, public respondents sufficiently showed that they did not unlawfully refuse to implement or
neglect the laws, executive and administrative orders as claimed by the petitioners. Projects and programs
that seek to improve air quality were undertaken by the respondents, jointly and in coordination with
stakeholders, such as: priority tagging of expenditures for climate change adaptation and mitigation, the
Integrated Transport System which is aimed to decongest major thoroughfares, Truck Ban, Anti-Smoke
Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban Re-Greening Programs.
In fact, the same NAQSR submitted by the petitioners show that the DENR was, and is, taking concrete steps
to improve national air quality, such as information campaigns, free emission testing to complement the anti-
smoke-belching program and other programs to reduce emissions from industrial smokestacks and from open
burning of waste.39 The efforts of local governments and administrative regions in conjunction with other ·
executive agencies and stakeholders are also outlined.40
Similarly, the writ of continuing mandamus cannot issue.
Rule 8, Section 1 of the RPEC lays down the requirements for a petition for continuing mandamus as follows:
RULES
WRIT OF CONTINUING MANDAMUS
SECTION 1. Petition for continuing mandamus.-When any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching
thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a
sworn certification of non-forum shopping.
First, the petitioners failed to prove direct or personal injury arising from acts attributable to the respondents
to be entitled to the writ.1âwphi1 While the requirements of standing had been liberalized in environmental
cases, the general rule of real party-in-interest applies to a petition for continuing mandamus.41
Second, the Road Sharing Principle is precisely as it is denominated - a principle. It cannot be considered an
absolute imposition to encroach upon the province of public respondents to determine the manner by which
this principle is applied or considered in their policy decisions. Mandamus lies to compel the performance of
duties that are purely ministerial in nature, not those that are discretionary,42 and the official can only be
directed by mandamus to act but not to act one way or the other. The duty being enjoined in mandamus must
be one according to the terms provided in the law itself. Thus, the recognized rule is that, in the performance
of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to
act, but not to act one way or the other.43
This Court cannot but note that this is precisely the thrust of the petition - to compel the respondents to act
one way to implement the Road Sharing Principle - to bifurcate all roads in the country to devote half to
sidewalk and bicycling, and the other to Filipino-made transport - when there is nothing in EO 774, AO 254
and allied issuances that require that specific course of action in order to implement the same. Their good
intentions notwithstanding, the petitioners cannot supplant the executive department's discretion with their
own through this petition for the issuance of writs of kalikasan and continuing mandamus.
15
In this case, there is no showing of unlawful neglect on the part of the respondents to perform any act that the As previously discussed, the petitioners' failure to show any violation on the part of the respondents renders it
law specifically enjoins as a duty - there being nothing in the executive issuances relied upon by the unnecessary to rule on other allegations of violation that the petitioners rely upon as causes of action against
petitioners that specifically enjoins the bifurcation of roads to implement the Road Sharing Principle. To the the public respondents.
opposite, the respondents were able to show that they were and are actively implementing projects and
programs that seek to improve air quality.1âwphi1
In fine, the allegations and supporting evidence in the petition fall short in showing an actual or threatened
violation of the petitioners' constitutional right to a balanced and healthful ecology arising from an unlawful act
At its core, what the petitioners are seeking to compel is not the performance of a ministerial act, but a or omission by, or any unlawful neglect on the part of, the respondents that would warrant the issuance of the
discretionary act - the manner of implementation of the Road Sharing Principle. Clearly, petitioners' preferred writs prayed for.
specific course of action (i.e. the bifurcation of roads to devote for all-weather sidewalk and bicycling and
Filipino-made transport vehicles) to implement the Road Sharing Principle finds no textual basis in law or
WHEREFORE, the petition is DISMISSED.
executive issuances for it to be considered an act enjoined by law as a duty, leading to the necessary
conclusion that the continuing mandamus prayed for seeks not the implementation of an environmental law,
rule or regulation, but to control the exercise of discretion of the executive as to how the principle enunciated SO ORDERED.
in an executive issuance relating to the environment is best implemented. Clearly, the determination of the
means to be taken by the executive in implementing or actualizing any stated legislative or executive policy
relating to the environment requires the use of discretion. Absent a showing that the executive is guilty of
"gross abuse of discretion, manifest injustice or palpable excess of authority,"44 the general rule applies that
discretion cannot be checked via this petition for continuing mandamus. Hence, the
continuing mandamus cannot issue.1âwphi1

Road Users' Tax

Finally, petitioners seek to compel DBM to release the Road Users' Tax to fund the reform of the road and
G.R. No. 211010
transportation system and the implementation of the Road Sharing Principle.

It bears clarifying that the Road Users' Tax mentioned in Section 9(e) of EO 774, apparently reiterated in
Section 5 of AO 254 is the Special Vehicle Pollution Control Fund component of the Motor Vehicle Users' .
Charge ("MVUC') imposed on owners of motor vehicles in RA 8794, otherwise known as the Road Users' Tax
Law. By the express provisions of the aforementioned law, the amounts in the special trust accounts of the
MVUC are earmarked solely and used exclusively (1) for road maintenance and the improvement of the road
drainage, (2) for the installation of adequate and efficient traffic lights and road safety devices, and (3) for the
air pollution control, and their utilization are subject to the management of the Road Board.45 Verily, the
petitioners' demand for the immediate and unilateral release of the Road Users' Tax by the DBM to support the
petitioners' operationalization of this Road Sharing Principle has no basis in law. The executive issuances relied
upon by the petitioner do not rise to the level of law that can supplant the provisions of RA 8794 that require
the approval of the Road Board for the use of the monies in the trust fund. In other words, the provisions on
the release of funds by the DBM as provided in EO 774 and AO 254 are necessarily subject to the conditions
set forth in RA 8794. Notably, RA 9729, as amended by RA 10174, provides for the establishment for the
People's Survival Fund46 that may be tapped for adaptation activities, which similarly require approval from the
PSF Board.47
That notwithstanding, the claim made by the petitioners that hardly any budget is allotted to mitigating
environmental pollution is belied by the priority given to programs aimed at addressing and mitigating climate
change that the DBM and the CCC had been tagging and tracking as priority expenditures since 2013.48 With
the coordination of the DILG, this priority tagging and tracking is cascaded down to the local budget
management of local government units.49
Other causes of action
VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN, REPRESENTING THE CARLESS PEOPLE OF
THE PHILIPPINES; GABRIEL ANASTACIO, REPRESENTED BY HIS MOTHER GRACE ANASTACIO,
DENNIS ORLANDOSANGALANG, REPRESENTED BY HIS MOTHER MAY ALILI SANGALANG, MARIA
PAULINA CASTANEDA, REPRESENTED BY HER MOTHERATRICIAANN CASTANEDA, REPRESENTING
THE CHILDREN OF THE PHILIPPINES AND CHILDREN OF THE FUTURE; AND RENATO PINEDA, JR.,
ARON KERR MENGUITO, MAY ALILI SANGALANG, AND GLYNDA BATHAN BATERINA, REPRESENTING
CAROWNERS WHO WOULD RATHER NOT HA VE CARS IF GOOD PUBLIC TRANSPORTATION WERE
SAFE, CONVENIENT, ACCESSIBLE AND RELIABLE, Petitioners
vs
THE CLIMATE CHANGE COMMISSION, REPRESENTED BY ITS CHAIRMAN, HIS EXCELLENCY BENIGNO
S. AQUINO III, AND ITS COMMISSIONERS MARY ANN LUCILLE SERING, HEHERSON
ALVAREZANDNADAREV SANO; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC)
REPRESENTED BY ITS SECRETARY, HONORABLE JOSEPH ABAYA; DEPARTMENT OF PUBLIC WORKS
AND HIGHWAYS (DPWH) AND THE ROAD BOARD, REPRESENTED BY ITS SECRETARY, HONORABLE
ROGELIO SINGSON; DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), REPRESENTED
BY ITS SECRETARY, HONORABLE MANUEL ROXAS; DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), REPRESENTED BY ITS SECRETARY, HONORABLE RAMON PAJE; DEPARTMENT
OF BUDGET AND MANAGEMENT (DBM), REPRESENTED BY ITS SECRETARY, HONORABLE FLORENCIO
ABAD; METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA), REPRESENTED BY ITS
CHAIRMAN, FRANCIS TOLENTINO; DEPARTMENT OF AGRICULTURE (DA), REPRESENTED BY ITS
SECRETARY, HONORABLE PROCESO ALCALA; AND JOHN DOES, REPRESENTING AS YET UNNAMED
LOCAL GOVERNMENT UNITS AND THEIR RESPECTIVE LOCAL CHIEF EXECUTIVE, JURIDICAL
ENTITIES, AND NATURAL PERSONS WHO FAIL OR REFUSE TO IMPLEMENT THE LAW OR COOPERATE
IN THE IMPLEMENTATION OF THE LAW, Respondents

16
 DECISION
CAGUIOA, J.:
This is a petition for the issuance of writs of kalikasan and continuing mandamus to compel the
implementation of the following environmental laws and executive issuances - Republic Act No. (RA)
97291 (Climate Change Act), and RA 87492 (Clean Air Act); Executive Order No. 7743 (BO 774); AO 254, s.
20094 (AO 254); and Administrative Order No. 171, s. 20075 (AO 171).
Accordingly, the Petitioners seek to compel: (a) the public respondents to: (1) implement the Road Sharing
Principle in all roads; (2) divide all roads lengthwise, one-half (½) for all-weather sidewalk and bicycling, the
other half for Filipino-made transport vehicles; (3) submit a time-bound action plan to implement the Road
Sharing Principle throughout the country; (b) the Office of the President, Cabinet officials and public
employees of Cabinet members to reduce their fuel consumption by fifty percent (50%) and to take public
transportation fifty percent (50%) of the time; (c) Public respondent DPWH to demarcate and delineate the
road right-of-way in all roads and sidewalks; and (d) Public respondent DBM to instantly release funds for
Road Users' Tax.6
The Facts
To address the clamor for a more tangible response to climate change, Former President Gloria Macapagal-
Arroyo issued AO 171 which created the Presidential Task Force on Climate Change (PTFCC) on February 20,
2007. This body was reorganized through BO 774, which designated the President as Chairperson, and cabinet
secretaries as members of the Task Force. EO 774 expressed what is now referred to by the petitioners as the
"Road Sharing Principle." Its Section 9(a) reads:
Section 9. Task Group on Fossil Fuels. - (a) To reduce the consumption of fossil fuels, the Department of
Transportation and Communications (DOTC) shall lead a Task Group to reform the transportation sector. The
new paradigm in the movement of men and things must follow a simple principle: "Those who have less in
wheels must have more in road." For this purpose, the system shall favor nonmotorized locomotion and
collective transportation system (walking, bicycling, and the man-powered mini-train).
In 2009, AO 254 was issued, mandating the DOTC (as lead agency for the Task Group on Fossil Fuels
or TGFF) to formulate a national Environmentally Sustainable Transport Strategy (EST) for the Philippines. The
Road Sharing Principle is similarly mentioned, thus:
SECTION 4. Functions of the TGFF- In addition to the functions provided in EO 774, the TGFF shall initiate
and pursue the formulation of the National EST Strategy for the Philippines.
Specifically, the TGFF shall perform the following functions:
(a) Reform the transport sector to reduce the consumption of fossil fuels. The new paradigm in the movement
of men and things must follow a simple principle: "Those who have less in wheels must have more in road."
For this purpose, the system shall favor non-motorized locomotion and collective transportation system
(walking, bicycling, and the manpowered mini-train).
xxxx
Later that same year, Congress passed the Climate Change Act. It created the Climate Change Commission
which absorbed the functions of the PTFCC and became the lead policy-making body of the government which
shall be tasked to coordinate, monitor and evaluate the programs and action plans of the government relating
to climate change.7
Herein petitioners wrote respondents regarding their pleas for implementation of the Road Sharing Principle,
demanding the reform of the road and transportation system in the whole country within thirty (30) days from
receipt of the said letter - foremost, through the bifurcation of roads and the reduction of official and
government fuel consumption by fifty percent (50%).8 Claiming to have not received a response, they filed this
petition.
The Petition
Petitioners are Carless People of the Philippines, parents, representing their children, who in turn represent
"Children of the Future, and Car-owners who would rather not have cars if good public transportation were
safe, convenient, accessible, available, and reliable". They claim that they are entitled to the issuance of the
extraordinary writs due to the alleged failure and refusal of respondents to perform an act mandated by
environmental laws, and violation of environmental laws resulting in environmental damage of such magnitude
as to prejudice the life, health and property of all Filipinos.9
These identified violations10 include: (a) The government's violation of "atmospheric trust" as provided under
Article XI, Section 1 of the Constitution, and thoughtless extravagance in the midst of acute public want under
Article 25 of the Civil Code for failure to reduce personal and official consumption of fossil fuels by at least fifty
percent (50%); (b) DOTC and DPWH's failure to implement the Road Sharing Principle under EO 774; (c) DA's
failure to devote public open spaces along sidewalks, roads and parking lots to sustainable urban farming as
mandated by Section 12(b)11 f EO 774; (d) DILG's failure to coordinate with local government units (LGUs) to
guide them on the Road Sharing Principle under Section 9(g)12 of EO 774; (e) DENR's failure to reduce air
pollutant emissions; and lastly, (f) DBM's failure to make available Road Users' Tax for purposes stated in
Section 9(e)13 of EO 774.
In gist, petitioners contend that respondents' failure to implement the foregoing laws and executive issuances
resulted in the continued degradation of air quality, particularly in Metro Manila, in violation of the petitioners'
constitutional right to a balanced and healthful ecology,14 and may even be tantamount to deprivation of life,
and of life sources or "land, water, and air" by the government without due process of law.15 They also decry
the "unequal" protection of laws in the prevailing scheme, claiming that ninety-eight percent (98%) of Filipinos
are discriminated against by the law when the car-owning two percent (2%) is given almost all of the road
space and while large budgets are allocated for construction and maintenance of roads, hardly any budget is
given for sidewalks, bike lanes and non-motorized transportation systems.16
Respondents, through the Office of the Solicitor General, filed their Comment seeking the outright dismissal of
the petition for lack of standing and failure to adhere to the doctrine of hierarchy of courts.17 Moreover,
respondents argue that petitioners are not entitled to the reliefs prayed for.
Specifically, respondents assert that petitioners are not entitled to a writ of kalikasan because they failed to
show that the public respondents are guilty of an unlawful act or omission; state the environmental law/s
violated; show environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants of two or more cities; and prove that non- implementation of Road Sharing Principle will cause
environmental damage. Respondents likewise assert that petitioners are similarly not entitled to a
17
Continuing Mandamus because: (a) there is no showing of a direct or personal injury or a clear legal right to
the thing demanded; (b) the writ will not compel a discretionary act or anything not in a public officer's duty
to do (i.e. the manner by which the Road Sharing Principle will be applied; and to compel DA to exercise
jurisdiction over roadside lands); and (c) DBM cannot be compelled to make an instant release of funds as the
same requires an appropriation made by law (Article VI, Section 29[1] of the Constitution) and the use of the
Road Users' Tax (more appropriately, the Motor Vehicle Users' Charge) requires prior approval of the Road
Board.18
In any event, respondents denied the specific violations alleged in the petition, stating that they have taken
and continue to take measures to improve the traffic situation in Philippine roads and to improve the
environment condition - through projects and programs such as: priority tagging of expenditures for climate
change adaptation and mitigation, the Integrated Transport System which is aimed to decongest major
thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and
Urban Re-Greening Programs. These projects are individually and jointly implemented by the public
respondents to improve the traffic condition and mitigate the effects of motorized vehicles on the
environment.19 Contrary to petitioners' claims, public respondents assert that they consider the impact of the
transport sector on the environment, as shown in the Philippine National Implementation Plan on Environment
Improvement in the Transport Sector which targets air pollution improvement actions, greenhouse gases
emission mitigation, and updating of noise pollution standards for the transport sector.
In response, petitioner filed their Reply, substantially reiterating the arguments they raised in the Petition.
ISSUES
From the foregoing submissions, the main issues for resolution are:
1. Whether or not the petitioners have standing to file the petition;
2. Whether or not the petition should be dismissed for failing to adhere to the doctrine of hierarchy of courts;
and
3. Whether or not a writ of Kalikasan and/or Continuing Mandamus should issue.
RULING
The petition must be dismissed.
Procedural Issues
Citing Section 1, Rule 7 of the Rules of Procedure for Environmental Cases20 (RPEC), respondents argue that
the petitioners failed to show that they have the requisite standing to file the petition, being representatives of
a rather amorphous sector of society and without a concrete interest or injury.21 Petitioners counter that they
filed the suit as citizens, taxpayers, and representatives; that the rules on standing had been relaxed following
the decision in Oposa v. Factoran;22 and that, in any event, legal standing is a procedural technicality which
the Court may set aside in its discretion.23
The Court agrees with the petitioners' position. The RPEC did liberalize the requirements on standing, allowing
the filing of citizen's suit for the enforcement of rights and obligations under environmental laws.24 This has
been confirmed by this Court's rulings in Arigo v. Swift,25 and International Service for the Acquisition of Agri-
BioTech Applications, Inc. v. Greenpeace Southeast Asia (Philippines).26 However, it bears noting that there is
a difference between a petition for the issuance of a writ of kalikasan, wherein it is sufficient that the person
filing represents the inhabitants prejudiced by the environmental damage subject of the writ;27 and a petition
for the issuance of a writ of continuing mandamus, which is only available to one who is personally aggrieved
by the unlawful act or omission. 28
Respondents also seek the dismissal of the petition on the ground that the petitioners failed to adhere to the
doctrine of hierarchy of courts, reasoning that since a petition for the issuance of a writ of kalikasan must be
filed with the Supreme Court or with any of the stations of the Court of Appeals,29 then the doctrine of
hierarchy of courts is applicable.30 Petitioners, on the other hand, cite the same provision and argue that direct
recourse to this Court is available, and that the provision shows that the remedy to environmental damage
should not be limited to the territorial jurisdiction of the lower courts.31
The respondents' argument does not persuade. Under the RPEC, the writ of kalikasan is an extraordinary
remedy covering environmental damage of such magnitude that will prejudice the life, health or property of
inhabitants in two or more cities or provinces. It is designed for a narrow but special purpose: to accord a
stronger protection for environmental rights, aiming, among others, to provide a speedy and effective
resolution of a case involving the violation of one's constitutional right to a healthful and balanced ecology that
transcends political and territorial boundaries, and to address the potentially exponential nature of large-scale
ecological threats.32 At the very least, the magnitude of the ecological problems contemplated under the RPEC
satisfies at least one of the exceptions to the rule on hierarchy of courts, as when direct resort is allowed
where it is dictated by public welfare.1âwphi1 Given that the RPEC allows direct resort to this Court,33 it is
ultimately within the Court's discretion whether or not to accept petitions brought directly before it.
Requisites for issuance of Writs of
Kalikasan  and Continuing
Mandamus
We find that the petitioners failed to establish the requisites for the issuance of the writs prayed for.
For a writ of kalikasan to issue, the following requisites must concur:
1. there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;
2. the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or
private individual or entity; and
3. the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.34
It is well-settled that a party claiming the privilege for the issuance of a writ of kalikasan has to show that a
law, rule or regulation was violated or would be violated.35
In this case, apart from repeated invocation of the constitutional right to health and to a balanced and
healthful ecology and bare allegations that their right was violated, the petitioners failed to show that public
18
respondents are guilty of any unlawful act or omission that constitutes a violation of the petitioners' right to a
balanced and healthful ecology.
While there can be no disagreement with the general propositions put forth by the petitioners on the
correlation of air quality and public health, petitioners have not been able to show that respondents are guilty
of violation or neglect of environmental laws that causes or contributes to bad air quality. Notably, apart from
bare allegations, petitioners were not able to show that respondents failed to execute any of the laws
petitioners cited. In fact, apart from adducing expert testimony on the adverse effects of air pollution on public
health, the petitioners did not go beyond mere allegation in establishing the unlawful acts or omissions on the
part of the public respondents that have a causal link or reasonable connection to the actual or threatened
violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under
the Rules, as required of petitions of this nature.36
Moreover, the National Air Quality Status Report for 2005-2007 (NAQSR) submitted by the petitioners belies
their claim that the DENR failed to reduce air pollutant emissions - in fact, the NAQSR shows that the National
Ambient Total Suspended Particulates (TSP) value used to determine air quality has steadily declined from
2004 to 2007,37 and while the values still exceed the air quality guideline value, it has remained on this same
downward trend until as recently as 2011.38
On the other hand, public respondents sufficiently showed that they did not unlawfully refuse to implement or
neglect the laws, executive and administrative orders as claimed by the petitioners. Projects and programs
that seek to improve air quality were undertaken by the respondents, jointly and in coordination with
stakeholders, such as: priority tagging of expenditures for climate change adaptation and mitigation, the
Integrated Transport System which is aimed to decongest major thoroughfares, Truck Ban, Anti-Smoke
Belching Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban Re-Greening Programs.
In fact, the same NAQSR submitted by the petitioners show that the DENR was, and is, taking concrete steps
to improve national air quality, such as information campaigns, free emission testing to complement the anti-
smoke-belching program and other programs to reduce emissions from industrial smokestacks and from open
burning of waste.39 The efforts of local governments and administrative regions in conjunction with other ·
executive agencies and stakeholders are also outlined.40
Similarly, the writ of continuing mandamus cannot issue.
Rule 8, Section 1 of the RPEC lays down the requirements for a petition for continuing mandamus as follows:
RULES
WRIT OF CONTINUING MANDAMUS
SECTION 1. Petition for continuing mandamus.-When any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching
thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a
sworn certification of non-forum shopping.
First, the petitioners failed to prove direct or personal injury arising from acts attributable to the respondents
to be entitled to the writ.1âwphi1 While the requirements of standing had been liberalized in environmental
cases, the general rule of real party-in-interest applies to a petition for continuing mandamus.41
Second, the Road Sharing Principle is precisely as it is denominated - a principle. It cannot be considered an
absolute imposition to encroach upon the province of public respondents to determine the manner by which
this principle is applied or considered in their policy decisions. Mandamus lies to compel the performance of
duties that are purely ministerial in nature, not those that are discretionary,42 and the official can only be
directed by mandamus to act but not to act one way or the other. The duty being enjoined in mandamus must
be one according to the terms provided in the law itself. Thus, the recognized rule is that, in the performance
of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to
act, but not to act one way or the other.43
This Court cannot but note that this is precisely the thrust of the petition - to compel the respondents to act
one way to implement the Road Sharing Principle - to bifurcate all roads in the country to devote half to
sidewalk and bicycling, and the other to Filipino-made transport - when there is nothing in EO 774, AO 254
and allied issuances that require that specific course of action in order to implement the same. Their good
intentions notwithstanding, the petitioners cannot supplant the executive department's discretion with their
own through this petition for the issuance of writs of kalikasan and continuing mandamus.
In this case, there is no showing of unlawful neglect on the part of the respondents to perform any act that the
law specifically enjoins as a duty - there being nothing in the executive issuances relied upon by the
petitioners that specifically enjoins the bifurcation of roads to implement the Road Sharing Principle. To the
opposite, the respondents were able to show that they were and are actively implementing projects and
programs that seek to improve air quality.1âwphi1
At its core, what the petitioners are seeking to compel is not the performance of a ministerial act, but a
discretionary act - the manner of implementation of the Road Sharing Principle. Clearly, petitioners' preferred
specific course of action (i.e. the bifurcation of roads to devote for all-weather sidewalk and bicycling and
Filipino-made transport vehicles) to implement the Road Sharing Principle finds no textual basis in law or
executive issuances for it to be considered an act enjoined by law as a duty, leading to the necessary
conclusion that the continuing mandamus prayed for seeks not the implementation of an environmental law,
rule or regulation, but to control the exercise of discretion of the executive as to how the principle enunciated
in an executive issuance relating to the environment is best implemented. Clearly, the determination of the
means to be taken by the executive in implementing or actualizing any stated legislative or executive policy
relating to the environment requires the use of discretion. Absent a showing that the executive is guilty of
"gross abuse of discretion, manifest injustice or palpable excess of authority,"44 the general rule applies that
discretion cannot be checked via this petition for continuing mandamus. Hence, the
continuing mandamus cannot issue.1âwphi1
Road Users' Tax
Finally, petitioners seek to compel DBM to release the Road Users' Tax to fund the reform of the road and
transportation system and the implementation of the Road Sharing Principle.
19
It bears clarifying that the Road Users' Tax mentioned in Section 9(e) of EO 774, apparently reiterated in Republic of the Philippines
Section 5 of AO 254 is the Special Vehicle Pollution Control Fund component of the Motor Vehicle Users' . SUPREME COURT
Charge ("MVUC') imposed on owners of motor vehicles in RA 8794, otherwise known as the Road Users' Tax Manila
Law. By the express provisions of the aforementioned law, the amounts in the special trust accounts of the
MVUC are earmarked solely and used exclusively (1) for road maintenance and the improvement of the road
EN BANC
drainage, (2) for the installation of adequate and efficient traffic lights and road safety devices, and (3) for the
air pollution control, and their utilization are subject to the management of the Road Board.45 Verily, the
petitioners' demand for the immediate and unilateral release of the Road Users' Tax by the DBM to support the G.R. No. 208566               November 19, 2013
petitioners' operationalization of this Road Sharing Principle has no basis in law. The executive issuances relied
upon by the petitioner do not rise to the level of law that can supplant the provisions of RA 8794 that require GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE
the approval of the Road Board for the use of the monies in the trust fund. In other words, the provisions on and QUINTIN PAREDES SAN DIEGO, Petitioners,
the release of funds by the DBM as provided in EO 774 and AO 254 are necessarily subject to the conditions vs.
set forth in RA 8794. Notably, RA 9729, as amended by RA 10174, provides for the establishment for the HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
People's Survival Fund46 that may be tapped for adaptation activities, which similarly require approval from the MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE
PSF Board.47 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
That notwithstanding, the claim made by the petitioners that hardly any budget is allotted to mitigating SPEAKER OF THE HOUSE, Respondents.
environmental pollution is belied by the priority given to programs aimed at addressing and mitigating climate
change that the DBM and the CCC had been tagging and tracking as priority expenditures since 2013.48 With x-----------------------x
the coordination of the DILG, this priority tagging and tracking is cascaded down to the local budget
management of local government units.49
DECISION

Other causes of action

PERLAS-BERNABE, J.:

As previously discussed, the petitioners' failure to show any violation on the part of the respondents renders it
unnecessary to rule on other allegations of violation that the petitioners rely upon as causes of action against "Experience is the oracle of truth."1
the public respondents.
-James Madison
In fine, the allegations and supporting evidence in the petition fall short in showing an actual or threatened
violation of the petitioners' constitutional right to a balanced and healthful ecology arising from an unlawful act Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail the
or omission by, or any unlawful neglect on the part of, the respondents that would warrant the issuance of the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court shall
writs prayed for. heretofore discuss the system‘s conceptual underpinnings before detailing the particulars of the constitutional
challenge.
WHEREFORE, the petition is DISMISSED.
The Facts
SO ORDERED.
I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced to
the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who would
cast their famished bodies into the porcine feast to assuage their hunger with morsels coming from
the generosity of their well-fed master.4 This practice was later compared to the actions of American
legislators in trying to direct federal budgets in favor of their districts.5 While the advent of
refrigeration has made the actual pork barrel obsolete, it persists in reference to political bills that
"bring home the bacon" to a legislator‘s district and constituents.6 In a more technical sense, "Pork
Barrel" refers to an appropriation of government spending meant for localized projects and secured
solely or primarily to bring money to a representative's district.7 Some scholars on the subject further
use it to refer to legislative control of local appropriations.8

20
 In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of
Members of the Legislature,9 although, as will be later discussed, its usage would evolve in reference
to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of a joint committee elected by
the Senate and the House of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications."14 Also, in the area of fund realignment, the same section
provides that the said secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened
from the areas of fund release and realignment to the area of project identification. During
that year, the mechanics of the public works act was modified to the extent that the
discretion of choosing projects was transferred from the Secretary of Commerce and
Communications to legislators. "For the first time, the law carried a list of projects selected
by Members of Congress, they ‘being the representatives of the people, either on their own
account or by consultation with local officials or civil leaders.‘"16 During this period, the pork
barrel process commenced with local government councils, civil groups, and individuals
appealing to Congressmen or Senators for projects. Petitions that were accommodated
formed part of a legislator‘s allocation, and the amount each legislator would eventually get
is determined in a caucus convened by the majority. The amount was then integrated into
the administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions to the
bill until it was signed into law by the President – the Public Works Act.17 In the 1960‘s,
however, pork barrel legislation reportedly ceased in view of the stalemate between the
House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature,"19 the reprieve
was only temporary. By 1982, the Batasang Pambansa had already introduced a new item in
the General Appropriations Act (GAA) called the" Support for Local Development Projects"
(SLDP) under the article on "National Aid to Local Government Units". Based on reports,20 it
was under the SLDP that the practice of giving lump-sum allocations to individual legislators
began, with each assemblyman receiving ₱500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for
approval. Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal treasurers in
the assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public works projects, or so- called
"hard projects", but also "soft projects",21 or non-public works projects such as those which
would fall under the categories of, among others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund"
and the "Visayas Development Fund" which were created with lump-sum appropriations of
₱480 Million and ₱240 Million, respectively, for the funding of development projects in the
Mindanao and Visayas areas in 1989. It has been documented23 that the clamor raised by the
Senators and the Luzon legislators for a similar funding, prompted the creation of the
"Countrywide Development Fund" (CDF) which was integrated into the 1990 GAA24 with an
initial funding of ₱2.3 Billion to cover "small local infrastructure and other priority community
projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as their
participation in the identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were
receiving ₱18 Million each, without any limitation or qualification, and that they could identify
any kind of project, from hard or infrastructure projects such as roads, bridges, and buildings
to "soft projects" such as textbooks, medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was
to be made upon the submission of the list of projects and activities identified by, among
others, individual legislators. For the first time, the 1993 CDF Article included an allocation
for the Vice-President.29 As such, Representatives were allocated ₱12.5 Million each in CDF
funds, Senators, ₱18 Million each, and the Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the Senate
Committee on Finance and the House Committee on Appropriations on the releases made
from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation
with the implementing agency concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations which shall be duly endorsed
by (a) the Senate President and the Chairman of the Committee on Finance, in the case of
the Senate, and (b) the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations, in the case of the House of Representatives; while the list for
the remaining 50% was to be submitted within six (6) months thereafter. The same article
21
 also stated that the project list, which would be published by the DBM,35 "shall be the basis
for the release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s
political agenda.37 It has been articulated that since CIs "formed part and parcel of the
budgets of executive departments, they were not easily identifiable and were thus harder to
monitor." Nonetheless, the lawmakers themselves as well as the finance and budget officials
of the implementing agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of Education (DepEd) School Building
Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño Fund, and
the Poverty Alleviation Fund.39 The allocations for the School Building Fund, particularly,
―shall be made upon prior consultation with the representative of the legislative district
concerned.”40 Similarly, the legislators had the power to direct how, where and when these
appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44 and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which
contained a special provision requiring "prior consultation" with the Member s of Congress for
the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared
in the GAA. The requirement of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the implementing agency concerned
was explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any
expense category was expressly allowed, with the sole condition that no amount shall be
used to fund personal services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year
2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special
provision ordering the release of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The following year, 2003,50 the
same single provision was present, with simply an expansion of purpose and express
authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with
Members of Congress on the aspects of implementation delegation and project list
submission, respectively. In 2004, the 2003 GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs
and projects under the ten point agenda of the national government and shall be released
directly to the implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and implementing agencies from
which a particular PDAF project may be subsequently chosen by the identifying authority.
The 2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar
regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the proposal
and identification of PDAF projects to be funded. In contrast to the PDAF Articles, however,
the provisions under the DepEd School Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the concerned Member of
Congress61 anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of non-
governmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for
school buildings, NGOs were, by law, encouraged to participate. For such purpose, the law
stated that "the amount of at least ₱250 Million of the ₱500 Million allotted for the
construction and completion of school buildings shall be made available to NGOs including
the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability and proven track records in the
construction of public school buildings x x x."62 The same allocation was made available to
NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it was in 2007 that the
Government Procurement Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June
29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and regulations65 of
RA 9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68 (the implementing agency) may
enter into a memorandum of agreement with an NGO, provided that "an appropriation law or
ordinance earmarks an amount to be specifically contracted out to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article
included an express statement on lump-sum amounts allocated for individual legislators and
the Vice-President: Representatives were given ₱70 Million each, broken down into ₱40
Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was given to
each Senator as well as the Vice-President, with a ₱100 Million allocation each for "hard" and
"soft projects." Likewise, a provision on realignment of funds was included, but with the
qualification that it may be allowed only once. The same provision also allowed the
Secretaries of Education, Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and Public Works and Highways
to realign PDAF Funds, with the further conditions that: (a) realignment is within the same
implementing unit and same project category as the original project, for infrastructure
projects; (b) allotment released has not yet been obligated for the original scope of work,
and (c) the request for realignment is with the concurrence of the legislator concerned.71
22
 In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by
each implementing agency (priority list requirement) x x x." However, as practiced, it would
still be the individual legislator who would choose and identify the project from the said
priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012
and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at ₱200
Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now allowed
LGUs to be identified as implementing agencies if they have the technical capability to
implement the projects.77 Legislators were also allowed to identify programs/projects, except
for assistance to indigent patients and scholarships, outside of his legislative district provided
that he secures the written concurrence of the legislator of the intended outside-district,
endorsed by the Speaker of the House.78 Finally, any realignment of PDAF funds, modification
and revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and the
Senate Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of
Members of Congress, the present cases and the recent controversies on the matter have, however,
shown that the term‘s usage has expanded to include certain funds of the President such as the
Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on March
22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to help
intensify, strengthen, and consolidate government efforts relating to the exploration, exploitation, and
development of indigenous energy resources vital to economic growth.82 Due to the energy-related
activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep
Water Gas-to-Power Project",83 the special fund created under PD 910 has been currently labeled as
Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was
similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD 1869 and
accordingly issued PD 1993 on October 31, 1985,86 amending Section 1287 of the former law. As it
stands, the Presidential Social Fund has been described as a special funding facility managed and
administered by the Presidential Management Staff through which the President provides direct
assistance to priority programs and projects not funded under the regular budget. It is sourced from
the share of the government in the aggregate gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small
part to previous Presidents who reportedly used the "Pork Barrel" in order to gain congressional
support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid on
the huge sums of government money that regularly went into the pockets of legislators in the form of
kickbacks."91 He said that "the kickbacks were ‘SOP‘ (standard operating procedure) among legislators
and ranged from a low 19 percent to a high 52 percent of the cost of each project, which could be
anything from dredging, rip rapping, sphalting, concreting, and construction of school
buildings."92 "Other sources of kickbacks that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money trail became the banner story of the
Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted
pig."93 "The publication of the stories, including those about congressional initiative allocations of
certain lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage."94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in
the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support
that illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous
Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe
into allegations that "the government has been defrauded of some ₱10 Billion over the past 10 years
by a syndicate using funds from the pork barrel of lawmakers and various government agencies for
scores of ghost projects."96 The investigation was spawned by sworn affidavits of six (6) whistle-
blowers who declared that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had
swindled billions of pesos from the public coffers for "ghost projects" using no fewer than 20 dummy
NGOs for an entire decade. While the NGOs were supposedly the ultimate recipients of PDAF funds,
the whistle-blowers declared that the money was diverted into Napoles‘ private accounts.97 Thus, after
its investigation on the Napoles controversy, criminal complaints were filed before the Office of the
Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the several
presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the last three (3)
years of the Arroyo administration. The purpose of the audit was to determine the propriety of
releases of funds under PDAF and the Various Infrastructures including Local Projects (VILP)100 by the
DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government-owned-and-controlled corporations (GOCCs).101 The
total releases covered by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in VILP,
representing 58% and 32%, respectively, of the total PDAF and VILP releases that were found to have
been made nationwide during the audit period.102 Accordingly, the Co A‘s findings contained in its
Report No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were made public, the highlights of which are as
follows:103
● Amounts released for projects identified by a considerable number of legislators
significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring members
of the Lower House.
23
 ● 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.
24
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2,
2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties
for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues material to the
present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was directed to bring with
him during the Oral Arguments representative/s from the DBM and Congress who would be able to
competently and completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby requested to
appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties to
submit their respective memoranda within a period of seven (7) days, or until October 17, 2013, which the
parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the
Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy;
(b) the issues raised in the consolidated petitions are matters of policy not subject to judicial review; (c)
petitioners have legal standing to sue; and (d) the Court‘s Decision dated August 19, 1994 in G.R. Nos.
113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v. Enriquez"114 (Philconsa)
and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the
"Pork Barrel System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation of
powers; (b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political
dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the President"
under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the priority infrastructure
development projects and to finance the restoration of damaged or destroyed facilities due to calamities, as
may be directed and authorized by the Office of the President of the Philippines" under Section 12 of PD 1869,
as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar as they
constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the Court shall also
tackle certain ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the Court unless there is compliance with the legal
requisites for judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of
the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites, case law
states that the first two are the most important119 and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one which
"involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the requirement of an actual case or controversy is the requirement of "ripeness,"
meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. It is a prerequisite that something had then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot
questions."124
Based on these principles, the Court finds that there exists an actual and justiciable controversy in these
cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on
the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the provisions allowing for their utilization – such as the 2013 GAA
for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential
Social Fund – are currently existing and operational; hence, there exists an immediate or threatened injury to
petitioners as a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and
academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual
controversy between the parties or no useful purpose can be served in passing upon the merits.125 Differing
25
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,
26
so that the government may be guided on how public funds should be utilized in accordance with constitutional
principles.
Finally, the application of the fourth exception is called for by the recognition that the preparation and passage
of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The relevance of the
issues before the Court does not cease with the passage of a "PDAF -free budget for 2014."134 The evolution of
the "Pork Barrel System," by its multifarious iterations throughout the course of history, lends a semblance of
truth to petitioners‘ claim that "the same dog will just resurface wearing a different collar."135 In Sanlakas v.
Executive Secretary,136 the government had already backtracked on a previous course of action yet the Court
used the "capable of repetition but evading review" exception in order "to prevent similar questions from re-
emerging."137 The situation similarly holds true to these cases. Indeed, the myriad of issues underlying the
manner in which certain public funds are spent, if not resolved at this most opportune time, are capable of
repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance that
"the courts will not intrude into areas committed to the other branches of government."138 Essentially, the
foregoing limitation is a restatement of the political question doctrine which, under the classic formulation of
Baker v. Carr,139 applies when there is found, among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination
of a kind clearly for non- judicial discretion." Cast against this light, respondents submit that the "the political
branches are in the best position not only to perform budget-related reforms but also to do them in response
to the specific demands of their constituents" and, as such, "urge the Court not to impose a solution at this
stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but legal questions which are
within its province to resolve. A political question refers to "those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of the "Pork
Barrel System" is not an issue dependent upon the wisdom of the political branches of government but rather
a legal one which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political branches of government are incapable of rendering
precisely because it is an exercise of judicial power. More importantly, the present Constitution has not only
vested the Judiciary the right to exercise judicial power but essentially makes it a duty to proceed therewith.
Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law. It includes the duty of the courts
of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." In Estrada v. Desierto,142 the
expanded concept of judicial power under the 1987 Constitution and its effect on the political question doctrine
was explained as follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving rights which
are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against
the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; does not in reality nullify or invalidate an act of the
legislature or the executive, but only asserts the solemn and sacred obligation assigned to it by the
Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by its co-equal
branches of government. But it is by constitutional force that the Court must faithfully perform its duty.
Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not arrest or in any
manner impede the endeavors of the two other branches but, in fact, help ensure that the pillars of change are
erected on firm constitutional grounds. After all, it is in the best interest of the people that each great branch
of government, within its own sphere, contributes its share towards achieving a holistic and genuine solution
to the problems of society. For all these reasons, the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected in any
of his constitutional rights by the operation of statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly,
assert that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they
possess the requisite standing to question the validity of the existing "Pork Barrel System" under which the
taxes they pay have been and continue to be utilized. It is undeniable that petitioners, as taxpayers, are
bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers
have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money
is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an
invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they
have raised may be classified as matters "of transcendental importance, of overreaching significance to
society, or of paramount public interest."148 The CoA Chairperson‘s statement during the Oral Arguments that
the present controversy involves "not merely a systems failure" but a "complete breakdown of
controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the issues involved
herein. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.150 All told,
petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare
decisis which means "follow past precedents and do not disturb what has been settled") are general procedural
law principles which both deal with the effects of previous but factually similar dispositions to subsequent
27
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:
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First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund
wherein legislators, either individually or collectively organized into committees, are able to effectively control
certain aspects of the fund’s utilization through various post-enactment measures and/or practices. In
particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since
it is, inter alia, a post-enactment measure that allows individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund
which allows the President to determine the manner of its utilization. For reasons earlier stated,161 the Court
shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers
of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that
the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government."163 To the legislative branch of government,
through Congress,164 belongs the power to make laws; to the executive branch of government, through the
President,165 belongs the power to enforce laws; and to the judicial branch of government, through the
Court,166 belongs the power to interpret laws. Because the three great powers have been, by constitutional
design, ordained in this respect, "each department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has
no power to make or execute the law."168 The principle of separation of powers and its concepts of autonomy
and independence stem from the notion that the powers of government must be divided to avoid concentration
of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its
power over the other branches or the citizenry.169 To achieve this purpose, the divided power must be wielded
by co-equal branches of government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one branch of government to check
the arbitrary or self-interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of government
unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of
separation of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with
the other’s performance of its constitutionally assigned function";171 and "alternatively, the doctrine may be
violated when one branch assumes a function that more properly is entrusted to another."172 In other words,
there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of
another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v.
Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the various
operational aspects of budgeting" and accordingly includes "the evaluation of work and financial plans for
individual activities," the "regulation and release of funds" as well as all "other related activities" that comprise
the budget execution cycle.174 This is rooted in the principle that the allocation of power in the three principal
branches of government is a grant of all powers inherent in them.175 Thus, unless the Constitution provides
otherwise, the Executive department should exclusively exercise all roles and prerogatives which go into the
implementation of the national budget as provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members, should not
cross over the field of implementing the national budget since, as earlier stated, the same is properly the
domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it
deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the exercise of its own
judgment and wisdom, formulates an appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making role necessarily
comes to an end and from there the Executive‘s role of implementing the national budget begins. So as not to
blur the constitutional boundaries between them, Congress must "not concern it self with details for
implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the
moment the law becomes effective, any provision of law that empowers Congress or any of its members to
play any role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional."177 It must be clarified, however, that since the restriction only pertains to "any
role in the implementation or enforcement of the law," Congress may still exercise its oversight function which
is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that
Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional basis and hence, tantamount to impermissible
interference and/or assumption of executive functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1âwphi1 In
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted
in connection with it, its power to ask heads of departments to appear before and be heard by either
of its Houses on any matter pertaining to their departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
(Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF Article –
"wrecks the assignment of responsibilities between the political branches" as it is designed to allow individual
legislators to interfere "way past the time it should have ceased" or, particularly, "after the GAA is
passed."179 They state that the findings and recommendations in the CoA Report provide "an illustration of how
absolute and definitive the power of legislators wield over project implementation in complete violation of the
constitutional principle of separation of powers."180 Further, they point out that the Court in the Philconsa case
only allowed the CDF to exist on the condition that individual legislators limited their role to recommending
projects and not if they actually dictate their implementation.181
29
For their part, respondents counter that the separations of powers principle has not been violated since the puts it – "the various operational aspects of budgeting," including "the evaluation of work and financial plans
President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the final for individual activities" and the "regulation and release of funds" in violation of the separation of powers
discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa, "upheld the principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated – from the
constitutionality of the power of members of Congress to propose and identify projects so long as such moment the law becomes effective, any provision of law that empowers Congress or any of its members to
proposal and identification are recommendatory."183 As such, they claim that "everything in the Special play any role in the implementation or enforcement of the law violates the principle of separation of powers
Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184 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
The Court rules in favor of petitioners.
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.
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.
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 –
At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 – have through the statements of the Solicitor General during the Oral Arguments – have admitted that the
been consistently accorded post-enactment authority to identify the projects they desire to be funded through identification of the legislator constitutes a mandatory requirement before his PDAF can be tapped as a funding
various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of source, thereby highlighting the indispensability of the said act to the entire budget execution process:192
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
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the
feature which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF projects for as
legislator be utilized?
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 Solicitor General Jardeleza: No, Your Honor.
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,
Justice Bernabe: It cannot?
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 Solicitor General Jardeleza: It cannot… (interrupted)
"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 Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?
special provisions, it cannot be seriously doubted that legislators have been accorded post-enactment
authority to identify PDAF projects.
Solicitor General Jardeleza: Yes, Your Honor.

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 xxxx
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 Justice Bernabe: In short, the act of identification is mandatory?
under Special Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate
Committee on Finance, as the case may be"; while their statutory authority to participate in the area of fund
realignment is contained in: first , paragraph 2, Special Provision 4189 which explicitly state s, among others, Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
that "any realignment of funds shall be submitted to the House Committee on Appropriations and the Senate identification.
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, xxxx
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
Justice Bernabe: Now, would you know of specific instances when a project was implemented without the
another within the allotment received from this Fund, subject to among others (iii) the request is with the
identification by the individual legislator?
concurrence of the legislator concerned."

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I
Clearly, these post-enactment measures which govern the areas of project identification, fund release and
would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA. And the
fund realignment are not related to functions of congressional oversight and, hence, allow legislators to
SARO and the NCA are triggered by an identification from the legislator.
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.

30
 xxxx 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
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How
(contingent rule-making).199 The conceptual treatment and limitations of delegated rule-making were explained
can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must
in the case of People v. Maceren200 as follows:
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)
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
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
"subordinate legislation" calculated to promote the public interest are necessary because of "the growing
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
difficulty of administering the law."
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 xxxx
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
Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating the
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193
mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to
Chief Justice Sereno:
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)
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
b. Application.
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 the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the past practice that identification authority to individual legislators, violates the principle of non-delegability since said legislators
had been done since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special are effectively allowed to individually exercise the power of appropriation, which – as settled in Philconsa – is
Provisions. x x x (Emphasis and underscoring supplied) 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
Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures
appropriation, the Court, in Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the
written into the law or informal practices institutionalized in government agencies, else the Executive
power of appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b) a
department be deprived of what the Constitution has vested as its own.
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
2. Non-delegability of Legislative Power. 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
a. Statement of Principle.
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
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by the contain the similar legislative identification feature as herein discussed, as unconstitutional.
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
3. Checks and Balances.
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 a. Statement of Principle; Item-Veto 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
The fact that the three great powers of government are intended to be kept separate and distinct does not
immemorial practice, are allowed to legislate on purely local matters;196 and (b) constitutionally-grafted
mean that they are absolutely unrestrained and independent of each other. The Constitution has also provided
exceptions such as the authority of the President to, by law, exercise powers necessary and proper to carry
for an elaborate system of checks and balances to secure coordination in the workings of the various
out a declared national policy in times of war or other national emergency,197 or fix within specified limits, and
departments of the government.203
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

31
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
32
On the other hand, respondents maintain that the text of the Constitution envisions a process which is perpetuation of elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as such
intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are essential "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220
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-
The Court agrees in part.
grounded.214

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a
The Court agrees with petitioners.
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
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation limit since the people‘s trust. The notion of a public trust connotes accountability,221 hence, the various mechanisms in the
said amount would be further divided among individual legislators who would then receive personal lump-sum Constitution which are designed to exact accountability from public officers.
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
Among others, an accountability mechanism with which the proper expenditure of public funds may be
hence, outside of the law, it necessarily means that the actual items of PDAF appropriation would not have
checked is the power of congressional oversight. As mentioned in Abakada,222 congressional oversight may be
been written into the General Appropriations Bill and thus effectuated without veto consideration. This kind of
performed either through: (a) scrutiny based primarily on Congress‘ power of appropriation and the budget
lump-sum/post-enactment legislative identification budgeting system fosters the creation of a budget within a
hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard
budget" which subverts the prescribed procedure of presentment and consequently impairs the President‘s
by either of its Houses on any matter pertaining to their departments and its power of confirmation;223 or (b)
power of item veto. As petitioners aptly point out, the above-described system forces the President to decide
investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct
between (a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific projects of the
inquiries in aid of legislation.224
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
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
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would
legislators are given post-enactment roles in the implementation of the budget makes it difficult for them to
remain constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation
become disinterested "observers" when scrutinizing, investigating or monitoring the implementation of the
above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be treated as a mere funding
appropriation law. To a certain extent, the conduct of oversight would be tainted as said legislators, who are
source allotted for multiple purposes of spending, i.e., scholarships, medical missions, assistance to indigents,
vested with post-enactment authority, would, in effect, be checking on activities in which they themselves
preservation of historical materials, construction of roads, flood control, etc. This setup connotes that the
participate. Also, it must be pointed out that this very same concept of post-enactment authorization runs
appropriation law leaves the actual amounts and purposes of the appropriation for further determination and,
afoul of Section 14, Article VI of the 1987 Constitution which provides that:
therefore, does not readily indicate a discernible item which may be subject to the President‘s power of item
veto.
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
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays,
he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege
"limited state auditors from obtaining relevant data and information that would aid in more stringently auditing
granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-
the utilization of said Funds."216 Accordingly, she recommends the adoption of a "line by line budget or amount
owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any
per proposed program, activity or project, and per implementing agency."217
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)
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
Clearly, allowing legislators to intervene in the various phases of project implementation – a matter before
greater degree of flexibility to account for future contingencies cannot be an excuse to defeat what the
another office of government – renders them susceptible to taking undue advantage of their own office.
Constitution requires. Clearly, the first and essential truth of the matter is that unconstitutional means do not
justify even commendable ends.218
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
c. Accountability.
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-
Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate case basis.
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
Finally, while the Court accounts for the possibility that the close operational proximity between legislators and
smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into "financially-interested
the Executive department, through the former‘s post-enactment participation, may affect the process of
partners."219 They also claim that the system has an effect on re- election as "the PDAF excels in self-
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.
33
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI
of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of
Congressional Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of political
dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section 26, Article II of
the 1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the
qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself, provide
a judicially enforceable constitutional right but merely specifies guideline for legislative or executive
action.226 Therefore, since there appears to be no standing law which crystallizes the policy on political
dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not
been properly demonstrated how the Pork Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article
X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal,
term, salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of 1991"
(LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more effective partners in the attainment of
national goals. Toward this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby local government units shall be
given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed
from the National Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations, and other
concerned sectors of the community before any project or program is implemented in their respective
jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local
government units (LGUs) to develop and ultimately, become self-sustaining and effective contributors to the
national economy. As explained by the Court in Philippine Gamefowl Commission v. Intermediate Appellate
Court:228
This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development of our
local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal corporations are
the small republics from which the great one derives its strength." The vitalization of local governments will
enable their inhabitants to fully exploit their resources and more important, imbue them with a deepened
sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue
interference by the national government in purely local affairs which are best resolved by the officials and
inhabitants of such political units. The decision we reach today conforms not only to the letter of the pertinent
laws but also to the spirit of the Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional
principles on local autonomy since it allows district representatives, who are national officers, to substitute
their judgments in utilizing public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a recognition
that individual members of Congress, far more than the President and their congressional colleagues, are likely
to be knowledgeable about the needs of their respective constituents and the priority to be given each
project."231 Drawing strength from this pronouncement, previous legislators justified its existence by stating
that "the relatively small projects implemented under the Congressional Pork Barrel complement and link the
national development goals to the countryside and grassroots as well as to depressed areas which are
overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013
speech on the "abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional
Pork Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually
belies the avowed intention of "making equal the unequal." In particular, the Court observes that the gauge of
PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the specific
interests and peculiarities of the district the legislator represents. In this regard, the allocation/division limits
34
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)
35
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty (50%)
percent share of the Government in the aggregate gross earnings of the Corporation from this Franchise, or
60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be set aside and shall accrue to the
General Fund to finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a) Section 8
of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy
Development Board from any and all sources" (a determinable amount) "to be used to finance energy resource
development and exploitation programs and projects of the government and for such other purposes as may
be hereafter directed by the President" (a specified public purpose), and (b) Section 12 of PD 1869, as
amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate
gross earnings be less than ₱150,000,000.00" (also a determinable amount) "to finance the priority
infrastructure development projects and x x x the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of the President of the Philippines" (also a specified
public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains post-
enactment measures which effectively create a system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for enforcement and since they are made by individual
legislators after the GAA is passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF, but
rather the post-enactment determinations made by the individual legislators which are, to repeat, occurrences
outside of the law. Irrefragably, the 2013 PDAF Article does not constitute an "appropriation made by law"
since it, in its truest sense, only authorizes individual legislators to appropriate in violation of the non-
delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the President"
gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to the
same section and thus, construe the phrase "and for such other purposes as may be hereafter directed by the
President" to refer only to other purposes related "to energy resource development and exploitation programs
and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public purpose is sufficient for
a legal appropriation to exist, the appropriation law must contain adequate legislative guidelines if the same
law delegates rule-making authority to the Executive245 either for the purpose of (a) filling up the details of the
law for its enforcement, known as supplementary rule-making, or (b) ascertaining facts to bring the law into
actual operation, referred to as contingent rule-making.246 There are two (2) fundamental tests to ensure that
the legislative guidelines for delegated rule-making are indeed adequate. The first test is called the
"completeness test." Case law states that a law is complete when it sets forth therein the policy to be
executed, carried out, or implemented by the delegate. On the other hand, the second test is called the
"sufficient standard test." Jurisprudence holds that a law lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map out the boundaries of the delegate‘s authority and prevent
the delegation from running riot.247 To be sufficient, the standard must specify the limits of the delegate‘s
authority, announce the legislative policy, and identify the conditions under which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as
may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of
legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the
President‘s authority with respect to the purpose for which the Malampaya Funds may be used. As it reads, the
said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct
and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law. That the
subject phrase may be confined only to "energy resource development and exploitation programs and projects
of the government" under the principle of ejusdem generis, meaning that the general word or phrase is to be
construed to include – or be restricted to – things akin to, resembling, or of the same kind or class as those
specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource development and
exploitation programs and projects of the government" states a singular and general class and hence, cannot
be treated as a statutory reference of specific things from which the general phrase "for such other purposes"
may be limited; second, the said phrase also exhausts the class it represents, namely energy development
programs of the government;250 and, third, the Executive department has, in fact, used the Malampaya Funds
for non-energy related purposes under the subject phrase, thereby contradicting respondents‘ own position
that it is limited only to "energy resource development and exploitation programs and projects of the
government."251 Thus, while Section 8 of PD 910 may have passed the completeness test since the policy of
energy development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the use of the
Malampaya Funds "to finance energy resource development and exploitation programs and projects of the
government," remains legally effective and subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya Funds would be used – as it should be used –
only in accordance with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869 has
already been amended by PD 1993 which thus moots the parties‘ submissions on the same.252 Nevertheless,
since the amendatory provision may be readily examined under the current parameters of discussion, the
Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be
used "to first, finance the priority infrastructure development projects and second, to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines." The Court finds that while the second indicated purpose adequately curtails the
authority of the President to spend the Presidential Social Fund only for restoration purposes which arise from
calamities, the first indicated purpose, however, gives him carte blanche authority to use the same fund for
any infrastructure project he may so determine as a "priority". Verily, the law does not supply a definition of
"priority in frastructure development projects" and hence, leaves the President without any guideline to
construe the same. To note, the delimitation of a project as one of "infrastructure" is too broad of a
classification since the said term could pertain to any kind of facility. This may be deduced from its
lexicographic definition as follows: "the underlying framework of a system, especially public services and
facilities (such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
36
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
37
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)
38
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.
39
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES Republic of the Philippines
petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and Management be SUPREME COURT
ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports related Manila
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
EN BANC
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. G.R. No. 192935               December 7, 2010

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the LOUIS "BAROK" C. BIRAOGO, Petitioner,
budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches of vs.
government. THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of x - - - - - - - - - - - - - - - - - - - - - - -x
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 G.R. No. 193036
funds under the Pork Barrel System.

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP.
This Decision is immediately executory but prospective in effect. ORLANDO B. FUA, SR., Petitioners,
vs.
SO ORDERED. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them.

--- Justice Jose P. Laurel1

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

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

40
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo
(Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the Constitution6 as it usurps the constitutional
authority of the legislature to create a public office and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners
Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-
legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when
then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his
slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle
that a public office is a public trust and mandates that public officers and employees, who are servants of the
people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation
of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a
nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s trust
and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases
against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections "kung walang
corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it
breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of
the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their
co-principals, accomplices and accessories from the private sector, if any, during the previous administration;
and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an independent
collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee
of the Executive Branch, including government-owned or controlled corporations, to produce
documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to
matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
41
 e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person who qualifies as a state witness under the
Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on corruption
of public officers and employees and their private sector co-principals, accomplices or accessories, if
any, when in the course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice
or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel determined
by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds
for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before
December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there
is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation
of cases and instances of graft and corruption during the prior administrations, such mandate may be so
extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall
not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc
body formed under the Office of the President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to submit its finding and recommendations to
the President, Congress and the Ombudsman. Though it has been described as an "independent collegial
body," it is essentially an entity within the Office of the President Proper and subject to his control. Doubtless,
it constitutes a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate,
arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather,
42
collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers Office of the President to achieve economy, simplicity and efficiency does not include the power to
but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, create an entirely new public office which was hitherto inexistent like the "Truth Commission."
it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
The PTC is different from the truth commissions in other countries which have been created as official, Ombudsman created under the 1987 Constitution and the Department of Justice created under the
transitory and non-judicial fact-finding bodies "to establish the facts and context of serious violations of human Administrative Code of 1987.
rights or of international humanitarian law in a country’s past."9 They are usually established by states
emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
transitional justice.
prosecution officials and personnel of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past and present, who may be
Truth commissions have been described as bodies that share the following characteristics: (1) they examine indictable.
only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a
particular event; (3) they are temporary bodies that finish their work with the submission of a report
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered
international practice of four decades wherein States constitute truth commissions to exclusively
by the State.10 "Commission’s members are usually empowered to conduct research, support victims, and
investigate human rights violations, which customary practice forms part of the generally accepted
propose policy recommendations to prevent recurrence of crimes. Through their investigations, the
principles of international law which the Philippines is mandated to adhere to pursuant to the
commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They
Declaration of Principles enshrined in the Constitution.
may aim to prepare the way for prosecutions and recommend institutional reforms."11

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility,
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals
a launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly
are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against
impress the people that widespread poverty will altogether vanish if corruption is eliminated without
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the
even addressing the other major causes of poverty.
principal function of which was to heal the wounds of past violence and to prevent future conflict by providing
a cathartic experience for victims.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on
of an executive issuance or even a statute."13
judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators.
As one writer12 puts it:
In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed executive
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
order with the following arguments:
speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget about
the wrongs that they have committed in the past, we have this to say: There can be no reconciliation without
justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again." 1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the
President’s executive power and power of control necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully executed and that, in any event, the Constitution,
The Thrusts of the Petitions
Revised Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as
amended by P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it to create or form such bodies.
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
them in the following manner:
appropriation but a mere allocation of funds already appropriated by Congress.

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
3] The Truth Commission does not duplicate or supersede the functions of the Office of the
public office and appropriate funds for its operation.
Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body
and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latter’s
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot jurisdiction.
legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the

43
 4] The Truth Commission does not violate the equal protection clause because it was validly created
for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and presidential
issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be
resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to
ascertain whether the requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown
that they have sustained or are in danger of sustaining any personal injury attributable to the creation of the
PTC. Not claiming to be the subject of the commission’s investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail
Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress
as an institution and present the complaints on the usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action
which, to their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the
PTC and the budget for its operations.23 It emphasizes that the funds to be used for the creation and operation
of the commission are to be taken from those funds already appropriated by Congress. Thus, the allocation
and disbursement of funds for the commission will not entail congressional action but will simply be an
exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining,
any personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his
petition is an assertion of a clear right that may justify his clamor for the Court to exercise judicial power and
to wield the axe over presidential issuances in defense of the Constitution. The case of David v.
Arroyo24 explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits,
standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the
name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put,
the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to seek
judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is
in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, however…the
people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
44
public offence be properly pursued and punished, and that a public grievance be remedied." With respect to Administrative Code of 1987, granting the President the continuing authority to reorganize his office, cannot
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts serve as basis for the creation of a truth commission considering the aforesaid provision merely uses verbs
to restrain the unlawful use of public funds to his injury cannot be denied." such as "reorganize," "transfer," "consolidate," "merge," and "abolish."34 Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the Constitution and must be deemed
However, to prevent just about any person from seeking judicial interference in any official policy or act with
repealed upon the effectivity thereof.35
which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service,
the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later
reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the
to determine the validity of an executive or legislative action, he must show that he has sustained a direct province of Congress and not with the executive branch of government. They maintain that the delegated
injury as a result of that action, and it is not sufficient that he has a general interest common to all authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not
members of the public. permit the President to create a public office, much less a truth commission; 2) is limited to the reorganization
of the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal
organs of the Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who
achieve simplicity, economy and efficiency.36 Such continuing authority of the President to reorganize his office
impugns the validity of a statute must have "a personal and substantial interest in the case such that he
is limited, and by issuing Executive Order No. 1, the President overstepped the limits of this delegated
has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases,
authority.
such as, Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual
v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted] The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-
finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues
that the authority of the President to create public offices within the Office of the President Proper has long
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence,
been recognized.37 According to the OSG, the Executive, just like the other two branches of government,
can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public
possesses the inherent authority to create fact-finding committees to assist it in the performance of its
interest so requires, such as when the matter is of transcendental importance, of overreaching significance to
constitutionally mandated functions and in the exercise of its administrative functions.38 This power, as the
society, or of paramount public interest."25
OSG explains it, is but an adjunct of the plenary powers wielded by the President under Section 1 and his
power of control under Section 17, both of Article VII of the Constitution.39
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be relaxed and
It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his department
review. In the first Emergency Powers Cases,27 ordinary citizens and taxpayers were allowed to question the
and in the exercise of his authority to assume directly the functions of the executive department, bureau and
constitutionality of several executive orders although they had only an indirect and general interest shared in
office, or interfere with the discretion of his officials.40 The power of the President to investigate is not limited
common with the public.
to the exercise of his power of control over his subordinates in the executive branch, but extends further in the
exercise of his other powers, such as his power to discipline subordinates,41 his power for rule making,
The OSG claims that the determinants of transcendental importance28 laid down in CREBA v. ERC and adjudication and licensing purposes42 and in order to be informed on matters which he is entitled to know.43
Meralco29 are non-existent in this case. The Court, however, finds reason in Biraogo’s assertion that the
petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There
The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the President has the power to
are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness,
reorganize the offices and agencies in the executive department in line with his constitutionally granted power
novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only
of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under
to the public but also to the Bench and the Bar, they should be resolved for the guidance of all.30 Undoubtedly,
existing statutes.
the Filipino people are more than interested to know the status of the President’s first effort to bring about a
promised change to the country. The Court takes cognizance of the petition not due to overwhelming political
undertones that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the
perform its constitutional duty to settle legal controversies with overreaching significance to society. OSG, the President may create the PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.45
Power of the President to Create the Truth Commission
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the
power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not
"reorganization" as limited by the following functional and structural lines: (1) restructuring the internal
merely an adjunct body of the Office of the President.31 Thus, in order that the President may create a public
organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or
office he must be empowered by the Constitution, a statute or an authorization vested in him by law.
transferring functions from one unit to another; (2) transferring any function under the Office of the President
According to petitioner, such power cannot be presumed32 since there is no provision in the Constitution or any
to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the
specific law that authorizes the President to create a truth commission.33 He adds that Section 31 of the
President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of
45
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.
These point to situations where a body or an office is already existent but a modification or alteration thereof
has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision.
Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest meaning attributable to the term "restructure"– an "alteration of an
existing structure." Evidently, the PTC was not part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power – that
which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we
ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the
President. Hence, it is subject to the President’s continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter.47 Clearly, the
power of control is entirely different from the power to create public offices. The former is inherent in the
Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to
faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to create a
public office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory
basis under P.D. 1416, as amended by P.D. No. 1772.48 The said law granted the President the continuing
authority to reorganize the national government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title
I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public
office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure of the national government
including the power to create offices and transfer appropriations pursuant to one of the purposes of the
decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No.
1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General
agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says
"it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D.
1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is
deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended
by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The President’s power to conduct investigations to aid
him in ensuring the faithful execution of laws – in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief Executive. That the authority of the President
to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such authority.51 As explained in the landmark
case of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct
branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain
to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the President other powers that
do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.
46
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial
has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above,
the powers of the President are not limited to those specific powers under the Constitution.53 One of the
recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In
said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted.
Having been constitutionally granted full control of the Executive Department, to which respondents belong,
the President has the obligation to ensure that all executive officials and employees faithfully comply with the
law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the
fact that the investigating team and the PCAGC had the same composition, or that the former used the offices
and facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry
into matters which the President is entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to
be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the
operation of a public office, suffice it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the
Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of the Solicitor General, "whatever funds
the Congress has provided for the Office of the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are faithfully executed is well recognized.
It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof.56 As the
Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced
by the officials and employees of his department. He has the authority to directly assume the functions of the
executive department.57
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been
vested in the said body as it cannot adjudicate rights of persons who come before it. It has been said that
"Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative policy
is to apply and to decide in accordance with the standards laid down by law itself in enforcing and
administering the same law."58 In simpler terms, judicial discretion is involved in the exercise of these quasi-
judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the Court in
Cariño v. Commission on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated
is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of
the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out
by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties
to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge."
And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award
or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle
or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a
judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law.60 Even respondents themselves admit that
the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding investigation."62 The actual prosecution of suspected
47
offenders, much less adjudication on the merits of the charges against them,63 is certainly not a function given
to the commission. The phrase, "when in the course of its investigation," under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining
probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and
the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is shared with
other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is
not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges
of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on
charges against public employees and officials is likewise concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction
with the Office of the President and the local Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases
under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the
investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary
investigation or the determination of the existence of probable cause. This is categorically out of the PTC’s
sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the
President in the performance of his duties relative to the execution and enforcement of the laws of the land. In
this regard, the PTC commits no act of usurpation of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in
the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise
tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided
by the reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the Court
finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression
of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution.
Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling out the
"previous administration" as its sole object makes the PTC an "adventure in partisan hostility."66 Thus, in order
to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the classification formulated by the respondents as it does
not fall under the recognized exceptions because first, "there is no substantial distinction between the group of
officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification is not germane to the purpose of
Executive Order No. 1 to end corruption."69 In order to attain constitutional permission, the petitioners
advocate that the commission should deal with "graft and grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial
subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said administration.71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the petitioners argue that no offense is
committed against the equal protection clause for "the segregation of the transactions of public officers during
the previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order seeks to correct."72 To distinguish the
Arroyo administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for
the determination of the truth regarding certain reports of large scale graft and corruption in the government
and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith and confidence in the Government and in their
public servants.
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the
reality that unlike with administrations long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for investigation lies in the reality
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed,
are more easily established in the regime that immediately precede the current administration.
48
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure
to issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping
by a nascent administration like the Presidential Commission on Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by
former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent
citizens’ committee to investigate all the facts and circumstances surrounding "Philippine Centennial projects"
of his predecessor, former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of
the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the
sharper weapon to cut it down is the equal protection clause.74
"According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed."75 It "requires public
bodies and institutions to treat similarly situated individuals in a similar manner."76 "The purpose of the equal
protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution through the
state’s duly constituted authorities."77 "In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just those of the legislature.79 Its
inhibitions cover all the departments of the government including the political and executive departments, and
extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever
guise is taken. 80
It, however, does not require the universal application of the laws to all persons or things without distinction.
What it simply requires is equality among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however, to be valid must pass the test
of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It
is germane to the purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial differences do not make for a valid
classification."82
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class.83 "The classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all
those covered by the classification are to be treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is substantially distinguishable from all others, does
not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so constituted as to preclude addition
to the number included in the class. It must be of such a nature as to embrace all those who may thereafter
be in similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise
fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a
long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation
which is limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.
[Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal
protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the
truth "concerning the reported cases of graft and corruption during the previous administration"87 only. The
intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at
least three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their
co-principals, accomplices and accessories from the private sector, if any, during the previous administration;
and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
49
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is,
a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in the Arroyo administration cannot be
taken as basis for distinguishing said administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended
investigation to the previous administration only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."90
confirm the petitioners’ lament that the subject executive order is only an "adventure in partisan hostility." In
the case of US v. Cyprian,95 it was written: "A rather limited number of such classifications have routinely been
held or assumed to be arbitrary; those include: race, national origin, gender, political activity or membership
in a political party, union activity or membership in a labor union, or more generally the exercise of first
amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation
and which are indistinguishable from those of the members of the class must be brought under the influence of
the law and treated by it in the same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause."98 "Legislation is not unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach."99 It has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply because it happens to be incomplete.100 In several
instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where
the purpose can be attained in future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not run the risk of losing the entire
remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out
earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and
was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in
cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC
the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any
expected to conduct simultaneous investigations of previous administrations, given the body’s limited time and
particular act, event or report to be focused on unlike the investigative commissions created in the past. "The
resources. "The law does not require the impossible" (Lex non cogit ad impossibilia).91
equal protection clause is violated by purposeful and intentional discrimination."103

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the
investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order No. 1
commission does not only confine itself to cases of large scale graft and corruption committed during the
suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not
previous administration.104 The OSG points to Section 17 of Executive Order No. 1, which provides:
exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92 SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so
Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public
extended accordingly by way of a supplemental Executive Order.
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the constitution. [Emphasis supplied] The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of
investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate of
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is
the commission will still depend on the whim and caprice of the President. If he would decide not to include
of the considered view that although its focus is restricted, the constitutional guarantee of equal protection
them, the section would then be meaningless. This will only fortify the fears of the petitioners that the
under the laws should not in any way be circumvented. The Constitution is the fundamental and paramount
Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the Arroyo
law of the nation to which all other laws must conform and in accordance with which all private rights
administration."105
determined and all public authority administered.93 Laws that do not conform to the Constitution should be
stricken down for being unconstitutional.94 While the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106 that the
the Constitution. To exclude the earlier administrations in the guise of "substantial distinctions" would only "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause."

50
The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of
its constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and
the executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be
the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it seems that the present political
situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a
hindrance to the nation’s thrust to progress.
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches
of the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow
itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the
truth must be within constitutional bounds for "ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL
insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of
Executive Order No. 1.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with SO ORDERED.
Judicial Power that "includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave of
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have been fertile grounds of conflict between
the Supreme Court, on one hand, and the two co-equal bodies of government, on the other. Many times the
Court has been accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them."107

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

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

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not
be allowed to sap its strength nor greed for power debase its rectitude."109
51

July 4, 2017
G.R. No. 231658
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A.
BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY
OF THE DEPARTMENT OF NATIONAL DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN.
EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW
IMPLEMENTOR, Respondents
x-----------------------x
G.R. No. 231771
EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO,
CARL ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY,
AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO, GABRIELA
WOMEN'S PARTY REPRESENTATIVE i\RLENED.BROSAS,KABATAAN PARTY-LIST REPRESENTATIVE
SARAH JANE I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK
VINCENT D. LIM, VENCER MARI CRISOSTOMO, JOVITA MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE
SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT.
GENERAL EDUARDO ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA
ROSA, Respondents
x-----------------------x
G.R. No. 231774
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA P. MUTI-
MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND)
SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT
(DILG) SECRETARY (OFFICER-INCHARGE) CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES
(AFP) CHEF OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF
DIRECTOR GENERAL RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C.
ESPERON, JR., Respondents.
DECISION
DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued
Proclamation No. 216 declaring a state of martial law and suspending the privilege of the writ of habeas
corpus in the whole of Mindanao.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of
national emergency on account of lawless violence in Mindanao;
WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when
the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law x x x';
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that 'the crime of
rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or
any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives';
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts
committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in
February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016,
freeing their arrested comrades and other detainees;
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City,
Lanao del Sur, established several checkpoints within the City, burned down certain government and private
facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic
State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to
the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and
prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting
the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror,
and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the
powers vested in me by the Constitution and by law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not
exceeding sixty days, effective as of the date hereof.
52
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the
duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.
Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on
May 25, 2017, a written Report on the factual basis of Proclamation No. 216.
The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence which
only escalated and worsened with the passing of time.
Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent
years, we have witnessed the perpetration of numerous acts of violence challenging the authority of the duly
constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the
bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured
prominently in all these, namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1
The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking
officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which have been
unleashing havoc in Mindanao, however, confronted the government operation by intensifying their efforts at
sowing violence aimed not only against the government authorities and its facilities but likewise against
civilians and their properties. As narrated in the President's Report:
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and Maute
Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which
escalated into open hostility against the government. Through these groups' armed siege and acts of violence
directed towards civilians and government authorities, institutions and establishments, they were able to take
control of major social, economic, and political foundations of Marawi City which led to its paralysis. This
sudden taking of control was intended to lay the groundwork for the eventual establishment of a
DAESH wilayat or province in Mindanao.
Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two
hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The
group chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign
and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to
the ideals being espoused by the DAESH, as evidenced by, among others, its publication of a video footage
declaring its allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic
State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and logistical support to
the Maute Group.
The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an
Islamic State and their capability to deprive the duly constituted authorities - the President, foremost - of their
powers and prerogatives.2
In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi
City which impelled him to declare a state of martial law and suspend the privilege of writ of habeas corpus, to
wit:
• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on
various facilities - government and privately owned - in the City of Marawi.
• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the Bureau of Jail
Management and Penology (BJMP).
• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty
personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells.
• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private
vehicles).
• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard
and felt everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's
electric supply was still cut off, plunging the city into total black-out.)
• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police
Station. A patrol car of the Police Station was also taken.
• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The
Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail.
• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and
Sauiaran, fell under the control of these groups. They threatened to bomb the bridges to pre-empt military
reinforcement.
• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi City, including
Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot,
Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and
Abubakar.
• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi
City junction.
• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora,
the nun's quarters in the church, and the Shia Masjid Moncado Colony. Hostages were taken from the church.
• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless
groups.
• Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the
Marawi Central Elementary Pilot School.
53
• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several
locations. As of 0600H of 24May 2017, members of the Maute Group were seen guarding the entry gates of
Amai Pakpak Hospital. They held hostage the employees of the Hospital and took over the PhilHealth office
located thereat.
• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set
ablaze.
Law enforcement and other government agencies now face pronounced difficulty sending their reports to the
Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from
performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi
City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the
government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
preventing the government from restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered.

The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based
• Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its
terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in
armored vehicles.
Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise
compromised the security of the entire Island of Mindanao.5
• Latest information indicates that about seventy-five percent (75%) of Marawi City has been infiltrated by
lawless armed groups composed of members of the Maute Group and the ASG. As of the time of this Report,
The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in
eleven (11) members of the Armed Forces and the Philippine National Police have been killed in action, while
Mindanao, and the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions
thirty-five (35) others have been seriously wounded.
once Marawi City falls under the control of the lawless groups.

• There are reports that these lawless armed groups are searching for Christian communities in Marawi City to
The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it
execute Christians. They are also preventing Maranaos from leaving their homes and forcing young male
provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi
Muslims to join their groups.
City as escape routes, supply lines, and backdoor passages.

• Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action
Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless
of lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government
armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over
personnel, and committing armed uprising against and open defiance of the government.3
the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and
security of the Filipino people and preserve our national integrity.6
The unfolding of these events, as well as the classified reports he received, led the President to conclude that -
The President ended his Report in this wise:
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of
power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire
While the government is presently conducting legitimate operations to address the on-going rebellion, if not
Mindanao.
the seeds of invasion, public safety necessitates the continued implementation of martial law and the
suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the
The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand rebellion is completely quelled.7
their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the
decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a
In addition to the Report, representatives from the Executive Department, the military and police authorities
clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from
conducted briefings with the Senate and the House of Representatives relative to the declaration of martial
its allegiance to the Government.
law.

There exists no doubt that lawless armed groups are attempting to deprive the President of his power,
After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 3888 expressing full
authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire
support to the martial law proclamation and finding Proclamation No. 216 "to be satisfactory, constitutional
Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said
and in accordance with the law". In the same Resolution, the Senate declared that it found "no compelling
area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers
reason to revoke the same". The Senate thus resolved as follows:
over local govemments.4

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that the
According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about
Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance with the
undue constraints and difficulties to the military and government personnel, particularly in the performance of
law. The Senate hereby supports fully Proclamation No. 216 and finds no compelling reason to revoke the
their duties and functions, and untold hardships to the civilians, viz.:
sarne.9

54
The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives
likewise issued House Resolution No. 105010 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO REASON TO REVOKE PROCLAMATION
NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.
The Petitions
A) G.R. No. 231658 (Lagman Petition)
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano, Emmanuel A.
Billones, and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph of Section 18 of Article
VII of the 1987 Constitution.
First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because
there is no rebellion or invasion in Marawi City or in any part of Mindanao. It argues that acts of terrorism in
Mindanao do not constitute rebellion12 since there is no proof that its purpose is to remove Mindanao or any
part thereof from allegiance to the Philippines, its laws, or its territory.13 It labels the flying of ISIS flag by the
Maute Group in Marawi City and other outlying areas as mere propaganda114 and not an open attempt to
remove such areas from the allegiance to the Philippine Government and deprive the Chief Executive of the
assertion and exercise of his powers and prerogatives therein. It contends that the Maute Group is a mere
private army, citing as basis the alleged interview of Vera Files with Joseph Franco wherein the latter allegedly
mentioned that the Maute Group is more of a "clan's private militia latching into the IS brand theatrically to
inflate perceived capability".15 The Lagman Petition insists that during the briefing, representatives of the
military and defense authorities did not categorically admit nor deny the presence of an ISIS threat in the
country but that they merely gave an evasive answer16 that "there is ISIS in the Philippines".17 The Lagman
Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed conflict in Marawi
City was precipitated or initiated by the government in its bid to capture Hapilon.18 Based on said statement, it
concludes that the objective of the Maute Group's armed resistance was merely to shield Hapilon and the
Maute brothers from the government forces, and not to lay siege on Marawi City and remove its allegiance to
the Philippine Republic.19 It then posits that if at all, there is only a threat of rebellion in Marawi City which is
akin to "imminent danger" of rebellion, which is no longer a valid ground for the declaration of martial law.20
Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because
the President's Report containef "false, inaccurate, contrived and hyperbolic accounts".21
It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak Medical
Center. Citing online reports on the interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman
Petition insists that the Maute Group merely brought an injured member to the hospital for treatment but did
not overrun the hospital or harass the hospital personnel. 22 The Lagman Petition also refutes the claim in the
President's Report that a branch of the Landbank of the Philippines was ransacked and its armored vehicle
commandeered. It alleges that the bank employees themselves clarified that the bank was not ransacked while
the armored vehicle was owned by a third party and was empty at the time it was commandeered.23 It also
labels as false the report on the burning of the Senator Ninoy Aquino College Foundation and the Marawi
Central Elementary Pilot School. It avers that the Senator Ninoy Aquino College Foundation is intact as of May
24, 2017 and that according to Asst. Superintendent Ana Alonto, the Marawi Central Elementary Pilot School
was not burned by the terrorists.24 Lastly, it points out as false the report on the beheading of the police chief
of Malabang, Lanao del Sur, and the occupation of the Marawi City Hall and part of the Mindanao State
University.25
Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis since the
President's Report mistakenly included the attack on the military outpost in Butig, Lanao del Sur in February
2016, the mass jail break in Marawi City in August 2016, the Zamboanga siege, the Davao market bombing,
the Mamasapano carnage and other bombing incidents in Cotabato, Sultan Kudarat, and Basilan, as additional
factual bases for the proclamation of martial law. It contends that these events either took place long before
the conflict in Marawi City began, had long been resolved, or with the culprits having already been arrested.26
Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
considering that the President acted alone and did not consult the military establishment or any ranking
official27 before making the proclamation.
Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient factual
basis owing to the fact that during the presentation before the Committee of the Whole of the House of
Representatives, it was shown that the military was even successful in pre-empting the ASG and the Maute
Group's plan to take over Marawi City and other parts of Mindanao; there was absence of any hostile plan by
the Moro Islamic Liberation Front; and the number of foreign fighters allied with ISIS was
"undetermined"28 which indicates that there are only a meager number of foreign fighters who can lend
support to the Maute Group.29
Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its specific and
special jurisdiction to review the sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a
Decision voiding and nullifying Proclamation No. 216" for lack of sufficient factual basis.30
In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman Petition and
set the case for oral argument on June 13, 14, and 15, 2017.
On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed and
eventually consolidated with G.R. No. 231658.32
B) G.R. No. 231771 (Cullamat Petition)
The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewise seeks the
nullification of Proclamation No. 216 for being unconstitutional because it lacks sufficient factual basis that
there is rebellion in Mindanao and that public safety warrants its declaration. 34
In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events
happening in Marawi City only an not in the entire region of Mindanao. It concludes that Proclamation No 216
"failed to show any factual basis for the imposition of martial law in the entire Mindanao,"35 "failed to allege
any act of rebellion outside Marawi City, much less x x x allege that public safety requires the imposition o
martial law in the whole of Mindanao".36
The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups to sow
terror and cause death and damage to property"37 does not rise to the level of rebellion sufficient to declare
martial law in the whole of Mindanao.38 It also posits that there is no lawless violence in other parts of
Mindanao similar to that in Marawi City.39
55
Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last Whereas
Clause of Proclamation No. 216 for being vague as it failed to identify these rebel groups and specify the acts
of rebellion that they were supposedly waging.40
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the Report of the
President to Congress, particularly the attack at the Amai Pakpak Hospital, the ambush and burning of the
Marawi Police Station, the killing of five teachers of Dansalan College Foundation, and the attacks on various
government facilities.41
In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional or in the
alternative, should the Court find justification for the declaration of martial law and suspension of the privilege
of the writ of habeas corpus in Marawi City, to declare the same as unconstitutional insofar as its inclusion of
the other parts of Mindanao.42
C) G.R. No. 231774 (Mohamad Petition)
The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual Basis of [the]
Declaration of Martial Law and [the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself as
"a special proceeding"44 or an "appropriate proceeding filed by any citizen"45 authorized under Section 18,
Article VII of the Constitution.
The Mohamad Petition posits that martial law is a measure of last resort46 and should be invoked by the
President only after exhaustion of less severe remedies.47 It contends that the extraordinary powers of the
President should be dispensed sequentially, i.e., first, the power to call out the armed forces; second, the
power to suspend the privilege of the writ of habeas corpus; and finally, the power to declare martial law.48 It
maintains that the President has no discretion to choose which extraordinary power to use; moreover, his
choice must be dictated only by, and commensurate to, the exigencies of the situation.49
According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the imposition
of martial law.50 It asserts that the Marawi incidents "do not equate to the existence of a public necessity
brought about by an actual rebellion, which would compel the imposition of martial law or the suspension of
the privilege of the writ of habeas corpus".51 It proposes that "[m]artial law can only be justified if the rebellion
or invasion has reached such gravity that [its] imposition x x x is compelled by the needs of public
safety"52 which, it believes, is not yet present in Mindanao.
Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit: that the
Maute Group intended to establish an Islamic State; that they have the capability to deprive the duly
constituted authorities of their powers and prerogatives; and that the Marawi armed hostilities is merely a
prelude to a grander plan of taking over the whole of Mindanao, are conclusions bereft of substantiation.53
The Mohamad Petition posits that immediately after the declaration of martial law, and without waiting for a
congressional action, a suit may already be brought before the Court to assail the sufficiency of the factual
basis of Proclamation No. 216.
Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration of martial
law and the suspension of the privilege of the writ of habeas corpus, the Mohamad Petition insists that the
Court may "look into the wisdom of the [President's] actions, [and] not just the presence of
arbitrariness".54 Further, it asserts that since it is making a negative assertion, then the burden to prove the
sufficiency of the factual basis is shifted to and lies on the respondents.55 It thus asks the Court "to compel the
[r]espondents to divulge relevant information"56 in order for it to review the sufficiency of the factual basis.
In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel respondents to
present proof on the factual basis [of] the declaration of martial law and the suspension of the privilege of the
writ of habeas corpus in Mindanao"57 and declare as unconstitutional Proclamation No. 216 for lack of sufficient
factual basis.
The Consolidated Comment
The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court. Noting that
the same coincided with the celebration of the 119th anniversary of the independence of this Republic, the
Office of the Solicitor General (OSG) felt that "defending the constitutionality of Proclamation No. 216" should
serve as "a rallying call for every Filipino to unite behind one true flag and defend it against all threats from
within and outside our shores".59
The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the authority or
power to review the sufficiency of the factual basis of the declaration of martial law.60 The OSG, however,
posits that although Section 18, Article VII lays the basis for the exercise of such authority or power, the same
constitutional provision failed to specify the vehicle, mode or remedy through which the "appropriate
proceeding" mentioned therein may be resorted to. The OSG suggests that the "appropriate proceeding"
referred to in Section 18, Article VII may be availed of using the vehicle, mode or remedy of
a certiorari petition, either under Section 1 or 5, of Article VIII.61 Corollarily, the OSG maintains that the
review power is not mandatory, but discretionary only, on the part of the Court. 62 The Court has the discretion
not to give due course to the petition.63
Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of Proclamation No.
216 should be reviewed by the Court "under the lens of grave abuse of discretion"64 and not the yardstick of
correctness of the facts.65 Arbitrariness, not correctness, should be the standard in reviewing the sufficiency of
factual basis.
The OSG maintains that the burden lies not with the respondents but with the petitioners to prove that
Proclamation No. 216 is bereft of factual basis.1âwphi1 It thus takes issue with petitioners' attempt to shift the
burden of proof when they asked the Court "to compel [the] respondents to present proof on the factual
basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove"67 and that governmental actions
are presumed to be valid and constitutional.68
Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the trajectory or point
of view of the President and base on the facts available to him at the time the decision was made.69 It argues
that the sufficiency of the factual basis should be examined not based on the facts discovered after the
President had made his decision to declare martial law because to do so would subject the exercise of the
President's discretion to an impossible standard.70 It reiterates that the President's decision should be guided
only by the information and data available to him at the time he made the determination.71 The OSG thus
asserts that facts that were established after the declaration of martial law should not be considered in the
review of the sufficiency of the factual basis of the proclamation of martial law. The OSG suggests that the
assessment of after-proclamation facts lies with the President and Congress for the purpose of determining the
propriety of revoking or extending the martial law. The OSG fears that if the Court considers after-
proclamation-facts in its review of the sufficiency of the factual basis for the proclamation, it would in effect
usurp the powers of the Congress to determine whether martial law should be revoked or extended.72
56
It is also the assertion of the OSG that the President could validly rely on intelligence reports coming from the b. Who has the burden of proof?
Armed Forces of the Philippines;73 and that he could not be expected to personally determine the veracity of
thecontents of the reports.74 Also, since the power to impose martial law is vested solely on the President as
c. What is the threshold of evidence?
Commander-in-Chief, the lack of recommendation from the Defense Secretary, or any official for that matter,
will not nullify the said declaration, or affect its validity, or compromise the sufficiency of the factual basis.
5. Whether the exercise of the power of judicial review by this Court involves the calibration of graduated
powers granted the President as Commander-in-Chief, namely calling out powers, suspension of the privilege
Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the President
of the writ of habeas corpus, and declaration of martial law;
in Proclamation No. 216 and in his Report to the Congress by merely citing news reports that supposedly
contradict the facts asserted therein or by criticizing in piecemeal the happenings in Marawi. For the OSG, the
said news articles are "hearsay evidence, twice removed,"75 and thus inadmissible and without probative value, 6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void:
and could not overcome the "legal presumption bestowed on governmental acts".76
a. with its inclusion of "other rebel groups;" or
Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has sufficient
factual basis. It maintains that the burden rests with the petitioners. However, the OSG still endeavors to lay b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;
out the factual basis relied upon by the President "if only to remove any doubt as to the constitutionality of
Proclamation No. 216".77
7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President
to Congress are sufficient [bases]:
The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's Ruling.

a. for the existence of actual rebellion; or

ISSUES

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire
The issues as contained in the revised Advisory78 are as follows: Mindanao 1 region;

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate 8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the
proceeding" covered by Paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode of requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas
review required of this Court when a declaration of martial law or the suspension of the privilege of the writ corpus; and
of habeas corpus is promulgated;

9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:

2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas
corpus:
a. have the effect of recalling Proclamation No. 55 s. 2016; or

a. is required to be factually correct or only not arbitrary in his appreciation of facts;

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in Marawi and
other parts of the Mindanao region.
b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense;

After the oral argument, the parties submitted their respective memoranda and supplemental memoranda.
c. is required to take into account only the situation at the time of the proclamation, even if subsequent events
prove the situation to have not been accurately reported;
OUR RULING

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual actions
that have been taken by Congress jointly or separately;
4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus;
a. What are the parameters for review?
I. Locus standi of petitioners.
One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought before [the
Court] by a party having the requisite 'standing' to challenge it."79 As a general rule, the challenger must have
"a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement."80 Over the years, there has been a trend towards relaxation of the rule on legal
standing, a prime example of which is found in Section 18 of Article VII which provides that any citizen may
file the appropriate proceeding to assail the sufficiency of the factual basis of the declaration of martial law or

57
the suspension of the privilege of the writ of habeas corpus. "[T]he only requisite for standing to challenge the
validity of the suspension is that the challenger be a citizen. He need not even be a taxpayer."81
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the Republic;"82 similarly,
petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women, all of legal [age], and residents
of Marawi City".83 In the Lagman Petition, however, petitioners therein did not categorically mention that they
are suing's citizens but merely referred to themselves as duly elected Representatives.84 That they are suing in
their official capacities as Members of Congress couLd have elicited a vigorous discussion considering the
issuance by the House of Representatives of House Resolution No. 1050 expressing full support to President
Duterte and finding no reason to revoke Proclamation No. 216. By such resolution, the House of
Representatives is declaring that it finds no reason to review the sufficiency of the factual basis of the martial
law declaration, which is in direct contrast to the views and arguments being espoused by the petitioners in
the Lagman Petition. Considering, however, the trend towards relaxation of the rules on legal standing, as well
as the transcendental issues involved in the present Petitions, the Court will exercise judicial self-
restraint85 and will not venture into this matter. After all, "the Court is not entirely without discretion to accept
a suit which does not satisfy the requirements of a [bona fide] case or of standing. Considerations paramount
to [the requirement of legal standing] could compel assumption of jurisdiction."86 In any case, the Court can
take judicial cognizance of the fact that petitioners in the Lagman Petition are all citizens of the Philippines
since Philippine citizenship is a requirement for them to be elected as representatives. We will therefore
consider them as suing in their own behalf as citizens of this country. Besides, respondents did not question
petitioners' legal standing.
II. Whether or not the petitions are the
"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.
All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII
(Executive Department) of the 1987 Constitution which provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph
of Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the Supreme Court different
from those enumerated in Sections 1 and 5 of Article VIII.88
The Court agrees.
a) Jurisdiction must be
specifically conferred by the
Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the
law.89 Unless jurisdiction has been specifically conferred by the Constitution or by some legislative act, no body
or tribunal has the power to act or pass upon a matter brought before it for resolution. It is likewise settled
that in the absence of a clear legislative intent, jurisdiction cannot be implied from the language of the
Constitution or a statute.90 It must appear clearly from the law or it will not be held to exist.91
A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the
Court to determine the sufficiency of the factual basis of the proclamation of martial law or suspension of the
privilege of the writ of habeas corpus.
b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate
proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The
standard of review in a petition for certiorari is whether the respondent has committed any grave abuse of
discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is not
the proper tool to review the sufficiency of the factual basis of the proclamationor suspension. It must be
emphasized that under Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis
of the President's exercise of emergency powers. Put differently, if this Court applies the standard of review
used in a petition for certiorari, the same would emasculate its constitutional task under Section 18, Article
VII.
c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.
The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to
constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter of the Petition for Habeas
Corpus of Lansang,92 to wit: that the factual basis of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus is not a political question but precisely within the ambit of judicial
review.
"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of the times
out of which it grew and to which it may be rationally supposed to bear some direct relationship, the evils
intended to be remedied, and the good to be accomplished are proper subjects of inquiry."93 Fr. Joaquin G.
Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission that drafted the 1987 Constitution,
explained:
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to
impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period
upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went about
reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed during
the authoritarian years. The new formula included revised grounds for the activation of emergency powers, the
manner of activating them, the scope of the powers, and review of presidential action.94 (Emphasis supplied)
58
To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide whether Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists and other
there is a state of rebellion requiring the suspension of the privilege of the writ of habeas corpus is lodged with armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force have
the President and his decision thereon is final and conclusive upon the courts. This ruling was reversed in the assumed the magnitude of an actual state of war against our people and the Republic of the Philippines.
1971 case of Lansang where it was held that the factual basis of the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus is not a political question and is within the ambit of
And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by Ferdinand E.
judicial review.96 However, in 1983, or after the declaration of martial law by former President Ferdinand E.
Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to
Marcos, the Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted
Proclamation No. 1081 dated September 21, 1972 wherein he said, among other things:
to Montenegro. According to the Supreme Court, the constitutional power of the President to suspend the
privilege of the writ of habeas corpus is not subject to judicial inquiry.98
Whereas, martial law having been declared because of wanton destruction of lives and properties, widespread
lawlessness and anarchy and chaos and disorder now prevailing throughout the country, which condition has
Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and
been brought about by groups of men who are actively engaged in a criminal conspiracy to seize political and
suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution in effect
state power in the Philippines in order to take over the government by force and violence, the extent of which
constitutionalized and reverted to the Lansang doctrine.
has now assumed the proportion of an actual war against our people and the legitimate government ...

d) Purpose of Section 18,

And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare martial law
Article VII is to provide additional
in our country without justifiable reason. Would the Gentleman still insist on the deletion of the phrase 'and,
safeguard against possible abuse by
with the concurrence of at least a majority of all the members of the Congress'?
the President on the exercise of the
extraordinary powers.
MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an aberration in our
history and national consciousness. But given the possibility that there would be another Marcos, our
Section 18, Article VII is meant to provide additional safeguard against possible abuse by the President in the
Constitution now has sufficient safeguards. As I said, it is not really true, as the Gentleman has mentioned,
exercise of his power to declare martial law or suspend the privilege of the writ of habeas corpus. Reeling from
that there is an exclusive right to determine the factual basis because the paragraph beginning on line 9
the aftermath of the Marcos martial law, the framers of the Constitution deemed it wise to insert the now third
precisely tells us that the Supreme Court may review, in an appropriate proceeding filed by any citizen, the
paragraph of Section 18 of Article VII.99 This is clear from the records of the Constitutional Commission when
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
its members were deliberating on whether the President could proclaim martial law even without the
or the extension thereof and must promulgate its decision on the same within 30 days from its filing.
concurrence of Congress. Thus:

MR. SUAREZ. Thank you, Madam President.
The Commissioner is proposing a very substantial amendment because this means that he is vesting
exclusively unto the President the right to determine the factors which may lead to the declaration of martial
law and the suspension of the writ of habeas corpus. I suppose he has strong and compelling reasons in
seeking to delete this particular, phrase. May we be informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding
this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a
situation of actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this
declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically
terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the
proclamation always exists, even during those first 60 days.
MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the
President to determine these factors, especially the existence of an invasion or rebellion and the second factor
of determining whether the public safety requires it or not, may I call the attention of the Gentleman to what
happened to us during the past administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in
his capacity as President of the Philippines by virtue of the powers vested upon him purportedly under Article
VII, Section 10 (2) of the Constitution, wherein he made this predicate under the "Whereas" provision:
I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public interest in case of invasion or rebellion as against the
rights of citizens. And I am saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was able
to do all those things mentioned.100
To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the
President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus within the
ambit of judicial review, it also relaxed the rule on standing by allowing any citizen to question before this
Court the sufficiency of the factual basis of such proclamation or suspension. Moreover, the third paragraph of
Section 18, Article VII veritably conferred upon any citizen a demandable right to challenge the sufficiency of
the factual basis of said proclamation or suspension. It further designated this Court as the reviewing tribunal
to examine, in an appropriate proceeding, the sufficiency of the factual basis and to render its decision thereon
within a limited period of 30 days from date of filing.
e) Purpose of Section 18,
Article VII is to curtail the extent of
the powers of the President.
The most important objective, however, of Section 18, Article VII is the curtailment of the extent of the powers
of the Commander-in-Chief. This is the primary reason why the provision was not placed in Article VIII or the
Judicial Department but remained under Article VII or the Executive Department.

59
During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz Palma
expressed her sentiments on the 1987 Constitution. She said:
The executive power is vested in the President of the Philippines elected by the people for a six-year term with
no reelection for the duration of his/her life. While traditional powers inherent in the office of the President are
granted, nonetheless for the first time, there are specific provisions which curtail the extent of such powers.
Most significant is the power of the Chief Executive to suspend the privilege of the writ of habeas corpus or
proclaim martial law.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial
law for more than eight years and the suspension of the privilege of the writ even after the lifting of martial
law in 1981. The new Constitution now provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a period not exceeding 60 days, and reserving to
Congress the power to revoke such suspension or proclamation of martial law which congressional action may
not be revoked by the President. More importantly, the action of the President is made subject to judicial
review, thereby again discarding jurisprudence which render[s] the executive action a political question and
beyond the jurisdiction of the courts to adjudicate.
For the first time, there is a provision that the state of martial law does not suspend the operation of the
Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction to military tribunals over
civilians, or suspend the privilege of the writ. Please forgive me if, at this point, I state that this constitutional
provision vindicates the dissenting opinions I have written during my tenure in the Supreme Court in the
martial law cases.101
f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded
jurisdiction of this Court would, therefore, contradict the clear intention of the framers of the Constitution to
place additional safeguards against possible martial law abuse for, invariably, the third paragraph of Section
18, Article VII would be subsumed under Section 1 of Article VIII. In other words, the framers of the
Constitution added the safeguard under the third paragraph of Section 18, Article VII on top of the expanded
jurisdiction of this Court.
g) Jurisdiction of the Court is
not restricted to those enumerated in
Sections I and 5 of Article VIII
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For
instance, its jurisdiction to be the sole judge of all contests relating to the election, returns, and qualifications
of the President or Vice-President can be found in the last paragraph of Section 4, Article VII.102 The power of
the Court to review on certiorari the decision, order, or ruling of the Commission on Elections and Commission
on Audit can be found in Section 7, Article IX(A).103
h) Unique features of the third
paragraph of Section 18, Article VII
make it sui generis.
The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated
as sui generis separate and different from those enumerated in Article VIII. Under the third paragraph of
Section 18, Article VII, a petition filed pursuant therewith will follow a different rule on standing as any citizen
may file it. Said provision of the Constitution also limits the issue to the sufficiency of the factual basis of the
exercise by the Chief Executive of his emergency powers. The usual period for filing pleadings in Petition
for Certiorari is likewise not applicable under the third paragraph of Section 18, Article VII considering the
limited period within which this Court has to promulgate its decision.
A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and defended, the
manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of
executing."104 In fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of Section
18, Article VII refers to any action initiated by a citizen for the purpose of questioning the sufficiency of the
factual basis of the exercise of the Chief Executive's emergency powers, as in these cases. It could be
denominated as a complaint, a petition, or a matter to be resolved by the Court.
III. The power of the Court to review the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-equal
branches of the Government: on' the part of the President as Commander-in-Chief, in resorting to his
extraordinary powers to declare martial law and suspend the privilege of the writ of habeas corpus; and on the
part of Congress, in giving its imprimatur to Proclamation No. 216 and not revoking the same.
The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the President as
Commander-in-Chief and the review of the said presidential action. In particular, the President's extraordinary
powers of suspending the privilege of the writ of habeas corpus and imposing martial law are subject to the
veto powers of the Court and Congress.
a) The judicial power to review
versus the congressional power to
revoke.
The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on
the ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or
suspension, which revocation shall not be set aside by the President.
In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the
information and data available to the President prior to or at the time of the declaration; it is not allowed td
"undertake an independent investigation beyond the pleadings."106 On the other hand, Congress may take into
consideration not only data available prior to, but likewise events supervening the declaration. Unlike the Court
I which does not look into the absolute correctness of the factual basis as will be discussed below, Congress
could probe deeper and further; it can delve into the accuracy of the facts presented before it.
60
In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an appropriate
proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic in the sense that it may
be activated by Congress itself at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but
likewise independent from each other although concededly, they have the same trajectory, which is, the
nullification of the presidential proclamation. Needless to say, the power of the Court to review can be
exercised independently from the power of revocation of Congress.
b) The framers of the 1987
Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.
If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and Congress with
veto powers independently from each other, we quote the following exchange:
MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress will
be able to revoke such proclamation.
MR. RAMA. Yes.
MS. QUESADA. But now, if they cannot meet because they have been arrested or that the Congress has been
padlocked, then who is going to declare that such a proclamation was not warranted?
xxxx
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A
petition for a writ of habeas corpus, if the Members are detained, can immediately be applied for, and the
Supreme Court shall also review the factual basis. x x x107
c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo
Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set aside its
pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that:
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of
the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through such review should the Supreme Court step in
as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of
the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable
one in the hands of the Court.109
xxxx
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension
within the short time expected of it, then the Court can step in, hear the petitions challenging the President's
action, and ascertain if it has a factual basis. x x x110
By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the
same to Congress as well as: abdicated from its bounden duty to review. Worse, the Court considered' itself
just on stand-by, waiting and willing to act as a substitute in case Congress "defaults." It is an aberration, a
stray declaration, which must be rectified and set aside in this proceeding.111
We, therefore, hold that the Court can simultaneously exercise its power of review with, and independently
from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress
does not deprive or deny the Court of its power to review.
IV. The judicial power to review the sufficiency
of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.
The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the armed forces;
b) suspending the privilege of the writ of habeas corpus; and c) declaring martial law.112 These powers may be
resorted to only under specified conditions.
The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the
"grounds for the activation of emergency powers, the manner of activating them, the scope of the powers, and
review of presidential action."113
a) Extraordinary powers of the
President distinguished.
Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police
action.114 The President may resort to this extraordinary power whenever it becomes necessary to prevent or
suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully discretionary to the
President;"115 the only limitations being that he acts within permissible constitutional boundaries or in a
manner not constituting grave abuse of discretion.116 In fact, "the actual use to which the President puts the
armed forces is x x x not subject to judicial review."117
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law
may be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987
Constitution imposed the following limits in the exercise of these powers: "(1) a time limit of sixty days; (2)
review and possible revocation by Congress; [and] (3) review and possible nullification by the Supreme
Court."118
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The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger thereof' as
grounds for the suspension of the privilege of the writ of habeas corpus or declaration of martial law.119 They
perceived the phrase "imminent danger" to be "fraught with possibilities of abuse;"120 besides, the calling out
power of the President "is sufficient for handling imminent danger."121
The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve
curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial law serves
as a warning to citizens that the Executive Department has called upon the military to assist in the
maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and
punishment, not act in a manner that will render it more difficult to restore order and enforce the law.122 As
such, their exercise requires more stringent safeguards by the Congress, and review by the Court.123
b) What really happens during martial law?
During the oral argument, the following questions cropped up: What really happens during the imposition of
martial law? What powers could the President exercise during martial law that he could not exercise if there is
no martial law? Interestingly, these questions were also discussed by the framers of the 1987
Constitution, viz.:
FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does
martial law add to the power of the President to call on the armed forces? The first and second lines in this
provision state:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies...
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case
of Aquino v. COMELEC where the Supreme Court said that in times of martial law, the President automatically
has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation
of the Constitution; therefore, it does not suspend the principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The answer we gave to that
question in the Committee was: During martial law, the President may have the powers of a commanding
general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding
general has the authority to issue orders which have the effect of law but strictly in a theater of war, not in the
situation we had during the period of martial law. In other words, there is an effort here to return to the
traditional concept of martial law as it was developed especially in American jurisprudence, where martial law
has reference to the theater of war.124
xxxx
FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial law;
meaning, limiting it to martial law as it has existed in the jurisprudence in international law, that it is a law for
the theater of war. In a theater of war, civil courts are unable to function. If in the actual theater of war civil
courts, in fact, are unable to function, then the military commander is authorized to give jurisdiction even over
civilians to military courts precisely because the civil courts are closed in that area. But in the general area
where the civil courts are open then in no case can the military courts be given jurisdiction over civilians. This
is in reference to a theater of war where the civil courts, in fact, are unable to function.
MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical area.
FR. BERNAS. That is correct.
MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief.
FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The understanding here is
that the phrase 'nor authorize the conferment of jurisdiction on military courts and agencies over civilians' has
reference to the practice under the Marcos regime where military courts were given jurisdiction over civilians.
We say here that we will never allow that except in areas where civil courts are, in fact, unable to function and
it becomes necessary for some kind of court to function.125
A state of martial law is peculiar because the President, at such a time, exercises police power, which is
normally a function of the Legislature. In particular, the President exercises police power, with the military’s
assistance, to ensure public safety and in place of government agencies which for the time being are unable to
cope with the condition in a locality, which remains under the control of the State.126
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice
Mendoza) Statement before the Senate Committee on Justice on March 13, 2006, stated that under a valid
declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees x x x".128
Worthy to note, however, that the above-cited acts that the President may perform do not give him unbridled
discretion to infringe on the rights of civilians during martial law. This is because martial law does not suspend
the operation of the Constitution, neither does it supplant the operation of civil courts or legislative assemblies.
Moreover, the guarantees under the Bill of Rights remain in place during its pendency. And in such instance
where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those
judicially charged with rebellion or offenses connected with invasion.129
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties,130 the Constitution
has safeguards against the President's prerogative to declare a state of martial law.
c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.
Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of 'graduated
power[s]'. From the most to the least benign, these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare martial law."131 It must be stressed, however,
that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a
sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called "graduation of
powers" does not dictate or restrict the manner by which the President decides which power to choose.
62
These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it
therefore necessarily follows that the power and prerogative to determine whether the situation warrants a
mere exercise of the calling out power; or whether the situation demands suspension of the privilege of the
writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the
President. The power to choose, initially, which among these extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or threats that endanger the government, and the
very integrity of the State.132
It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision
pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would be
tantamount to an incursion into the exclusive domain of the Executive and an infringement on the prerogative
that solely, at least initially, lies with the President.
d) The framers of the 1987
Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.
The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of the
Congress in the initial imposition of martial law or suspension of the privilege of the writ of habeas
corpus further supports the conclusion that judicial review does not include the calibration of the President's
decision of which of his graduated powers will be availed of in a given situation. Voting 28 to 12, the framers
of the 1987 Constitution removed the requirement of congressional concurrence in the first imposition of
martial law and suspension of the privilege.133
MR. PADILLA.x x x
We all agree with the suspension of the writ or the proclamation of martial law should not require beforehand
the concurrence of the majority of the Members of the Congress. However, as provided by the Committee, the
Congress may revoke, amend, or shorten or even increase the period of such suspension.134
xxxx
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of
martial law there is no need for concurrence of the Members of Congress because the provision says 'in case of
actual invasion or rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino de Castro said,
there is a need for immediate response because there is an attack. Second, the fact of securing a concurrence
may be impractical because the roads might be blocked or barricaded. x x x So the requirement of an initial
concurrence of the majority of all Members of the Congress in case of an invasion or rebellion might be
impractical as I can see it.
Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in
that it is subject to judicial review at any point in time. So on that basis, I agree that there is no need for
concurrence as a prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus. x
x x135
xxxx
MR. SUAREZ. Thank you.
The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and, with the
concurrence of at least a majority of all the Members of the Congress...'
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ of habeas
corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative
of the President?
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be shortened by
the Congress or the Senate because the next sentence says that the Congress or the Senate may even revoke
the proclamation.136
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial amendment because this means that he is vesting
exclusively unto the President the right to determine the factors which may lead to the declaration of martial
law and the suspension of the writ of habeas corpus. I suppose he has strong and compelling reasons in
seeking to delete this particular phrase. May we be informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding
this phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a
situation of actual invasion or rebellion. In these situations, the President has to act quickly. Secondly, this
declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically
terminates. Thirdly, the right of the judiciary to inquire into the sufficiency of the factual basis of the
proclamation always exists, even during those first 60 days.
xxxx
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration in our
history and national consciousness. But given the possibility that there would be another Marcos, our
Constitution now has sufficient safeguards. As I said, it is not really true, as the Gentleman mentioned, that
there is an exclusive right to determine the factual basis because the paragraph being on line 9 precisely tells
us that the Supreme court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same within 30 days from its filing.
63
I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public interest in case of invasion or rebellion as against the
rights of citizens. x x x
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we are looking
for are safeguards that arereasonable and, I believe, adequate at this point. On the other hand, in case of
invasion or rebellion, even during the first 60 days when the intention here is to protect the country in that
situation, it would be unreasonable to ask that there should be a concurrence on the part of the Congress,
which situation is automatically terminated at the end of such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check on this
awesome power of the Chief Executive acting as Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those conditions.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of Congress would
be available; and, secondly, the President will be able to act quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency?
MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event of an
invasion or a rebellion.137
The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a
priori in the President's choice of extraordinary powers.
e) The Court must similarly
and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.
It cannot be overemphasized that time is paramount in situations necessitating the proclamation of martial law
or suspension of the privilege of the writ of habeas corpus. It was precisely this time element that prompted
the Constitutional Commission to eliminate the requirement of 1 concurrence of the Congress in the initial
imposition by the President of martial law or suspension of the privilege of the writ of habeas corpus.
Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas corpus is
now anchored on actual invasion or rebellion and when public safety requires it, and is no longer under threat
or in imminent danger thereof, there is a necessity and urgency for the President to act quickly to protect the
country.138 The Court, as Congress does, must thus accord the President the same leeway by not wading into
the realm that is reserved exclusively by the Constitution to the Executive Department.
j) The recommendation of the
Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.
Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-ranking
military officials, is not a condition for the President to declare martial law. A plain reading of Section 18,
Article VII of the Constitution shows that the President's power to declare martial law is not subject to any
condition except for the requirements of actual invasion or rebellion and that public safety requires it. Besides,
it would be contrary to common sense if the decision of the President is made dependent on the
recommendation of his mere alter ego. Rightly so, it is only on the President and no other that the exercise of
the powers of the Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.
g) In any event, the President
initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.
At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial law on
May 23, 201 7, the President had already issued Proclamation No. 55 on September 4, 2016, declaring a state
of national emergency on account of lawless violence in Mindanao. This, in fact, is extant in the first Whereas
Clause of Proclamation No. 216. Based on the foregoing presidential actions, it can be gleaned that although
there is no obligation or requirement on his part to use his extraordinary powers on a graduated or sequential
basis, still the President made the conscious anddeliberate effort to first employ the most benign from among
his extraordinary powers. As the initial and preliminary step towards suppressing and preventing the armed
hostilities in Mindanao, the President decided to use his calling out power first. Unfortunately, the situation did
not improve; on the contrary, it only worsened. Thus, exercising his sole and exclusive prerogative, the
President decided to impose martial law and suspend the privilege of the writ of habeas corpus on the belief
that the armed hostilities in Mindanao already amount to actual rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may
be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.
Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of the phrase
"other rebel groups"139 in its Whereas Clause and for lack of available guidelines specifying its actual
operational parameters within the entire Mindanao region, making the proclamation susceptible to broad
interpretation, misinterpretation, or confusion.
64
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence must
necessarily guess at its meaning and differ as to its application."140 "[A] statute or act may be said to be vague
when it lacks comprehensible standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. [In such instance, the statute] is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle."141
b) Vagueness doctrine applies
only in free speech cases.
The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases
or, as they are called in American law, First Amendment cases.142 A facial challenge is allowed to be made to a
vague statute and also to one which is overbroad because of possible "'chilling effect' on protected speech that
comes from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence."143
It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are
not appropriate for testing the validity of penal statutes.144 Justice Mendoza explained the reason as follows:
Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.' x x x145
Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes
entirely on the ground that they might beapplied to parties not before the Court whose activities are
constitutionally protected.146 "Such invalidation would constitute a departure from the usual requirement of
'actual case and controversy' and permit decisions to be made in a sterile abstract context having no factual
concreteness."147
c) Proclamation No. 216
cannot be facially challenged using
the vagueness doctrine.
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. Proclamation No.
216 does not regulate speech, religious freedom, and other fundamental rights that may be facially
challenged.148 What it seeks to penalize is conduct, not speech.
As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No. 1017,
issued by then President Gloria Macapagal-Arroyo declaring a state of national emergency, on ground o
vagueness is uncalled for since a plain reading of Proclamation No. 10171 shows that it is not primarily
directed at speech or even speech-related1 conduct. It is actually a call upon the Armed Forces of the
Philippines (AFP) to prevent or suppress all forms of lawless violence. Like Proclamation No. 1017,
Proclamation No. 216 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state
regulation.

d) Inclusion of "other rebel

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
groups " does not make Proclamation
'chilling effect' upon protected speech. The theory is that ' [w]hen statutes regulate or proscribe speech and no
No.216 vague.
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 The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad interpretation,
own conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in misinterpretation, and confusion, cannot be sustained.
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
In People v. Nazario,150 the Court enunciated that:
of overly broad statutes.

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
common intelligence must necessarily guess at its meaning and differ as to its application.' It is repugnant to
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take
targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
chances as in the area of free speech.
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

xxxx
But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or
by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing had made it illegal for 'three or more persons to assemble on any sidewalk and there conduct themselves in a
'on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. manner annoying to persons passing by.' Clearly, the ordinance imposed no standard at all 'because one may
They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, never know in advance what annoys some people but does not annoy others.'
the established rule is that'one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First

65
Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on its face. It
is to be distinguished, however, from legislation couched in imprecise language - but which nonetheless
specifies a standard though defectively phrased - in which case, it may be 'saved' by proper construction.151
The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the
words that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in
Proclamation No. 55, which it cited by way of reference in its Whereas clauses.
e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.
Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has no
guidelines specifying its actual operational parameters within the entire Mindanao region. Besides, operational
guidelines will serve only as mere tools for the implementation of the proclamation. In Part III, we declared
that judicial review covers only the sufficiency of information or data available to or known to the President
prior to, or at the time of, the declaration or suspension. And, as will be discussed exhaustively in Part VII, the
review will be confined to the proclamation itself and the Report submitted to Congress.
Clearly, therefore, there is no need for the Court to determine the constitutionality of the implementing and/or
operational guidelines, general orders, arrest orders and other orders issued after the proclamation for being
irrelevant to its review. Thus, any act committed under the said orders in violation of the Constitution and the
laws, such as criminal acts or human rights violations, should be resolved in a separate proceeding. Finally,
there is a risk that if the Court wades into these areas, it would be deemed as trespassing into the sphere that
is reserved exclusively for Congress in the exercise of its power to revoke.
VI. Whether or not nullifying Proclamation No.
216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.
a) The calling out power is in a
different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.
The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national
emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated September 4, 2016,
where he called upon the Armed Forces and the Philippine National 1 Police (PNP) to undertake such measures
to suppress any and all forms of lawless violence in the Mindanao region, and to prevent such lawless violence
from spreading and escalating elsewhere in the Philippines.
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different category from the
power to suspend the privilege of the writ of habeas corpus and the power to declare martial law:
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the
factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of
the President's action to call out the armed forces. The distinction places the calling out power in a different
category from the power to declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and
provided for their revocation and review without any qualification.153
In other words, the President may exercise the power to call out the Armed Forces independently of the power
to suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may
also be a prelude to a possible future exercise of the latter powers, as in this case.
Even so, the Court's review of the President's declaration of martial law and his calling out the Armed Forces
necessarily entails separate proceedings instituted for that particular purpose.
As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his power to call out
the armed forces to prevent or suppress lawless violence, invasion or rebellion may only be examined by the
Court as to whether such power was exercised within permissible constitutional limits or in a manner
constituting grave abuse of discretion.155
In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to sufficiently
comply with the requisites of locus standi, as it was not able to show any specific injury which it had suffered
or could suffer by virtue of President Joseph Estrada's order deploying the Philippine Marines to join the PNP in
visibility patrols around the metropolis.156
This locus standi requirement, however, need not be complied with in so far as the Court's jurisdiction to
review the sufficiency of the factual basis of the President's declaration of martial law or suspension of the
privilege ofthe writ of habeas corpus is concerned. In fact, by constitutional design, such review may be
instituted by any citizen before the Court,157 without the need to prove that he or she stands to sustain a
direct and personal injury as a consequence of the questioned Presidential act/s.
But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial law in this
case, such ruling could not affect the President's exercise of his calling out power through Proclamation No. 55.
b) The operative fact doctrine.
Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President
done pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute is recognized as an
"operative fact" before it is declared unconstitutional.158
Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is
null and void. As the new Civil Code puts it: 'When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws or the Constitution.' The above provision
of the Civil Code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not
a law, confers no rights, imposes no duties, and affords no protection. This doctrine admits of qualifications,
however. As the American Supreme Court stated: 'The actual existence of a statute prior to such a
determination [of constitutionality], is an operative fact and may have consequences which cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to the invalidity may have to be
66
considered in various aspects, - with respect to particular regulations, individual and corporate, and particular
conduct, private and official.
The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the
measure for the validity of legislative or executive acts. Clearly then, neither the legislative nor the executive
branch, and for that matter much less, this Court, has power under the Constitution to act contrary to its
terms. Any attempted exercise of power in violation of its provisions is to that extent unwarranted and null.
The growing awareness of the role of the judiciary as the governmental organ which has the final say on
whether or not a legislative or executive measure is valid leads to a more appreciative attitude of theemerging
concept that a declaration of nullity may have legal consequences which the more orthodox view would deny.
That for a period of time such a statute, treaty, executive order, or ordinance was in 'actual existence' appears
to be indisputable. What is more appropriate and logical then than to consider it as 'an operative fact?'
(Emphasis supplied)159
However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would
repulse any challenge to acts performed during the effectivity of martial law or suspension of the privilege of
the writ of habeas corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion of public
safety, when evidence shows otherwise.
VII. The Scope of the Power to Review.
a) The scope of the power of
review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang,160 which was
decided under the 1935 Constitution,161 held that it can inquire into, within proper bounds, whether there has
been adherence to or compliance with the constitutionally-imposed limitations on the Presidential power to
suspend the privilege of the writ of habeas corpus.162 "Lansang limited the review function of the Court to a
very prudentially narrow test of arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as
follows:
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer
that its power was 'merely to check - not to supplant - the Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. More specifically, the Court said that its power was not 'even comparable
with its power over civil or criminal cases elevated thereto by appeal...in which cases the appellate court has
all the powers of the courtof origin,' nor to its power of quasi-judicial administrative decisions where the Court
is limited to asking whether 'there is some evidentiary basis' for the administrative finding. Instead, the Court
accepted the Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that the President's
decision is correct and that public safety was endangered by the rebellion and justified the suspension of the
writ, but that in suspending the writ, the President did not act arbitrarily.'164
Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for
judicial review based on the determination of the sufficiency of the factual bases, has in fact done away with
the test of arbitrariness as provided in Lansang.
b) The "sufficiency of factual
basis test".
Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution are
presumed to know the prevailing jurisprudence at the time they were drafting the Constitution. Thus, the
phrase "sufficiency of factual basis" in Section 18, Article VII of the Constitution should be understood as the
only test for judicial review of the President's power to declare martial law and suspend the privilege of the
writ of habeas corpus under Section 18, Article VII of the Constitution. The Court does not need to satisfy itself
that the President's decision is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the introduction of the
"sufficiency of the factual basis" test.
As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the
privilege of the writ of habeas corpus, subject to the revocation of Congress and the review of this Court.
Since the exercise of these powers is a judgment call of the President, the determination of this Court as to
whether there is sufficient factual basis for the exercise of such, must be based only on facts or information
known by or available to the President at the time he made the declaration or suspension, which facts or
information are found in the proclamation as well as the written Report submitted by him to Congress. These
may be based on the situation existing at the time the declaration was made or past events. As to how far the
past events should be from the present depends on the President.
Past events may be considered as justifications for the declaration and/or suspension as long as these are
connected or related to the current situation existing at the time of the declaration.
As to what facts must be stated in the proclamation and the written Report is up to the President.165 As
Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the
proclamation and the written Report taking into account the urgency of the situation as well as national
security. He cannot be forced to divulge intelligence reports and confidential information that may prejudice
the operations and the safety of the military.
Similarly, events that happened after the issuance of the proclamation, which are included in the written
report, cannot be considered in determining the sufficiency of the factual basis of the declaration of martial law
and/or the suspension of the privilege of the writ of habeas corpus since these happened after the President
had already issued the proclamation. If at all, they may be used only as tools, guides or reference in the
Court's determination of the sufficiency of factual basis, but not as part or component of the portfolio of the
factual basis itself.
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should
look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should
the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the
President could not be expected to verify the accuracy and veracity of all facts reported to him due to the
urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him
and therefore impede the process of his decision-making. Such a requirement will practically necessitate the
67
President to be on the ground to confirm the correctness of the reports submitted to him within a period that
only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the
President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is,
to borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root cause of the
emergency".166 Possibly, by the time the President is satisfied with the correctness of the facts in his
possession, it would be too late in the day as the invasion or rebellion could have already escalated to a level
that is hard, if not impossible, to curtail.
Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible
evidence that the President ca appraise and to which he can anchor his judgment,167 as appears to be the case
here.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J. Velasco
Jr. in Fortun:
President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the
Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was
within their realm of competence, and that a state of emergency has also been declared in Central Mindanao
to prevent lawless violence similar to the 'Maguindanao massacre,' which may be an indication that there is a
threat to the public safety warranting a declaration of martial law or suspension of the writ.
Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending
the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of
rebellion. The President is called to act as public safety requires.168
Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law
even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent
events prove that the situation had not been accurately reported to him.
After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the
declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is
concerned. In any event, safeguards under Section 18, Article VII of the Constitution are in place to cover such
a situation, e.g., the martial law period is good only for 60 days; Congress may choose to revoke it even
immediately after the proclamation is made; and, this Court may investigate the factual background of the
declaration.169
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or
inaccuracies in some of the facts stated in the proclamation and the written report are not enough reasons for
the Court to invalidate the declaration and/or suspension as long as there are other facts in the proclamation
and the written Report that support the conclusion that there is an actual invasion or rebellion and that public
safety requires the declaration and/or suspension.
In sum, the Court's power to review is limited to the determination of whether the President in declaring
martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our
review would be limited to an examination on whether the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension
are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus.
VIII. The parameters for determining the
sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.
a) Actual invasion or rebellion,
and public safety requirement.
Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1)
actual invasion or rebellion, and (2) public safety requires the exercise of such power."170 Without the
concurrence of the two conditions, the President's declaration of martial law and/or suspension of the privilege
of the writ of habeas corpus must be struck down.
As a general rule, a word used in a statute which has a technical or legal meaning, is construed to have the
same technical or legal meaning.171 Since the Constitution did not define the term "rebellion," it must be
understood to have the same meaning as the crime of "rebellion" in the Revised Penal Code (RPC).172
During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner Florenz D.
Regalado alluded to actual rebellion as one defined under Article 134 of the RPC:
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent
rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature or
Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident,
everybody knows what happened. Would the Committee consider that an actual act of rebellion?
MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal
Code, that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned
in Article 134 and by the means employed under Article 135. x x x173
Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of
the RPC. To give it a different definition would not only create confusion but would also give the President wide
latitude of discretion, which may be abused - a situation that the Constitution see k s to prevent.174
Article 134 of the RPC states:
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by
rising publicly and taking arms against the Government for the purpose of removing from the allegiance to
said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land,
naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.
Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a) public uprising
and (b) taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to
remove from the allegiance to the Government or its laws: (i) the territory of the Philippines or any part
thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers and prerogatives."175
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b) Probable cause is the Petitioners concede that there is an armed public uprising in Marawi City.179 However, they insist that the
allowable standard of proof for the armed hostilities do not constitute rebellion in the absence of the element of culpable political
President. purpose, i.e., the removal from the allegiance to the Philippine Government or its laws: (i) the territory of the
Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the
Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.
In determining the existence of rebellion, the President only needs to convince himself that there is probable
cause or evidence showing that more likely than not a rebellion was committed or is being committed.176 To
require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers. Along The contention lacks merit.
this line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-Arroyo, concluded that the President
needs only to satisfy probable cause as the standard of proof in determining the existence of either invasion or
a) Facts, events and
rebellion for purposes of declaring martial law, and that probable cause is the most reasonable, most practical
information upon which the President
and most expedient standard by which the President can fully ascertain the existence or non-existence of
anchored his decision to declare
rebellion necessary for a declaration of martial law or suspension of the writ. This is because unlike other
martial law and suspend the privilege
standards of proof, which, in order to be met, would require much from the President and therefore unduly
of the writ of habeas corpus.
restrain his exercise of emergency powers, the requirement of probable cause is much simpler. It merely
necessitates an "average man [to weigh] the facts and circumstances without resorting to the calibration of
the rules of evidence of which he has no technical knowledge. He [merely] relies on common sense [and] x x x Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM,180 the Court will
needs only to rest on evidence showing that, more likely than not, a crime has been committed x x x by the consider only those facts and/or events which were known to or have transpired on or before that time,
accused."177 consistent with the scope of judicial review. Thus, the following facts and/or events were deemed to have been
considered by the President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No.
216 itself:
To summarize, the parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion
or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable
cause for the President to believe that there is actual rebellion or invasion. 1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account of
lawless violence in Mindanao;181
Having laid down the parameters for review, the Court shall nowproceed to the core of the controversy -
whether Proclamation No. 216,Declaring a State of Martial Law and Suspending the Privilege of the Writ 2. Series of violent acts182 committed by the Maute terrorist group including:
of Habeas Corpus in the whole of Mindanao, lacks sufficient factual basis.
a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing and
IX. There is sufficient factual basis for the wounding several soldiers;
declaration of martial law and the suspension of
the writ of habeas corpus. b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute Group
and other detainees;
At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of accuracy
or veracity of the facts upon which the President anchored his declaration of martial law or suspension of the 3. On May 23, 2017:183
privilege of the writ of habeas corpus; rather, only the sufficiency of the factual basis as to convince the
President that there is probable cause that rebellion exists. It must also be reiterated that martial law is a
matter ofurgency and much leeway and flexibility should be accorded the President. As such, he is not a) Takeover of a hospital in Marawi;
expected to completely validate all the information he received before declaring martial law or suspending the
privilege of the writ of habeas corpus. b) Establishment of several checkpoints within Marawi;

We restate the elements of rebellion for reference: c) Burning of certain government and private facilities;

1. That there be (a) public uprising, and (b) taking up arms against the Government; and d) Mounting casualties on the part of the government;

2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said
Government or its laws the territory of the Philippines or any part thereof, or any body of land, naval or other
armed forces or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or
prerogatives.178
e) Hoisting the flag of ISIS in several areas; and
f) Capability of the Maute Group and other rebel groups to sow terror, and cause death and damage to
property not only in Lanao del Sur but also in other parts of Mindanao; and the Report184 submitted to
Congress:

69
1. Zamboanga siege;185 b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the escape of
inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel and/or locked them inside the
cells; confiscated cellphones, personnel-issued firearms, and vehicles;203
2. Davao bombing;186

c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power outage by evening;204
3. Mamasapano carnage;187

d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station; commandeered a
4. Cotabato bombings;188
police car;205

5. Sultan Kudarat bombings;189

e) BJMP personnel evacuated the Marawi City Jail and other affected areas;206

6. Sulu bombings;190
f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was taken by the
rebels;207
7. Basilan bombings; 191

g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;208
8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG and the Maute
Group;192
h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters in the church,
and the Shia Masjid Moncado Colony;209
9. Escalation of armed hostility against the government troops;193
i) taking of hostages from the church;210
10. Acts of violence directed not only against government authorities and establishments but civilians as
well;194
j) killing of five faculty members of Dansalan College foundation;211

11. Takeover of major social, economic and political foundations which paralyzed Marawi City;195
k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot School;212

12. The object of the armed hostilities was to lay the groundwork for the establishment of a
1) overrunning of Amai Pakpak Hospital;213
DAESH/ISIS wilayat or province;196

m) hoisting the ISIS flag in several areas;214

13. Maute Group has 263 active members, armed and combat-ready;197

n) attacking and burning of the Filipino-Libyan Friendship Hospital;215

14. Extensive networks or linkages of the Maute Group with foreign and local armed groups;198

o) ransacking of a branch of Landbank of the Philippines and commandeering an armored vehicle;216

15. Adherence of the Maute Group to the ideals espoused by ISIS;199

p) reports regarding Maute Group's plan to execute Christians;217

16. Publication of a video showing Maute Group's declaration of allegiance to ISIS;200

q) preventing Maranaos from leaving their homes;218

17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group;201

r) forcing young Muslims to join their group;219 and

18. Events on May 23, 2017 in Marawi City, particularly:

s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City,
a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various government and
seizing public and private facilities, perpetrating killings of government personnel1 , and committing armed
privately-owned facilities;202
uprising against and open defiance of the Government.220

b) The President's Conclusion

70
After the assessment by the President of the aforementioned facts, he arrived at the following conclusions, as
mentioned in Proclamation No. 216 and the Report:
1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine Government this
part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the
land and to maintain public order and safety in Mindanao, constituting the crime of rebellion."221
2) "[L]awless armed groups have taken up arms and committed public uprising against the duly constituted
government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City
of Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief
Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and
safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a
whole."222
3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic State and
their capability to deprive the duly constituted authorities - the President, foremost - of their powers and
prerogatives. "223
9) "Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless
armed men, the siege f Marawi City is a vital cog in attaining their long-standing goal: absolute control over
the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and
security of the Filipino people and preserve our national integrity."229
Thus, the President deduced from the facts available to him that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its
territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to
believe that there was probable cause that the crime of rebellion was and is being committed and that public
safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus.
A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation
No. 216, had sufficient factual bases tending to show that actual rebellion exists. The President's conclusion,
that there was an armed public uprising, the culpable purpose of which was the removal from the allegiance of
the Philippine Government a portion of its territory and the deprivation of the President from performing his
powers and prerogatives, was reached after a tactical consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.

After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of
4) "These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of
martial law and suspension of the privilege of the writ of habeas corpus. As Justice Carpio decreed in his
power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire
Dissent in Fortun:
Mindanao."224

x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly burden
5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand
and effectively incapacitate her from exercising such powers.
their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the
decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a
clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof
its allegiance to the Government."225 required for convicting an accused charged with a criminal offense.x x x

6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his power, xxxx
authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire
Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said
Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish
area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers
the existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the
over local governments."226
writ amounts to an excessive restriction on 'the President's power to act as to practically tie her hands and
disable her from effectively protecting the nation against threats to public safety.'
7) "Law enforcement and other government agencies now face pronounced difficulty sending their reports to
the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from
Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a
performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi
lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the
City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the
President in exercising her emergency powers, as it requires proof greater than preponderance of evidence
government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
although not beyond reasonable doubt.
preventing the government from restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered."227
Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is demanded for a
lawful declaration of martial law.
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based
terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in
Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise xxxx
compromised the security of the entire Island of Mindanao."228
Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and
impose martial law or suspend the writ unreasonably curtails the President's emergency powers.

71
Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of her emergency Philippines233 denying that the Maute group occupied
powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that the Marawi Police Station.
amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
3. that lawless armed groups likewise ransacked the Statement made by the bank officials in the on-line
I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the Landbank of the Philippines and commandeered one news article of Philstar234 that the Marawi City branch
standard of proof for a valid declaration of martial law and suspension of the writ. of its armored vehicles (Report); was not ransacked but sustained damages from the
attacks.

Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor 4. that the Marawi Central Elementary Pilot School Statements in the on-line news article of
and for the issuance of an arrest warrant by a judge. Probable cause has been defined as a 'set of facts and was burned (Proclamation No. 216 and the Report); Philstar235 made by the Marawi City Schools Division
circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Assistant Superintendent Ana Alonto denying that the
Information or any offense included therein has been committed by the person sought to be arrested.' school was burned and Department of Education
Assistant Secretary Tonisito Umali stating that they
In determining probable cause, the average man weighs the facts and circumstances without resorting to the have not received any report of damage.
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A 5. that the Maute Group attacked various Statement in the on-line news article of
finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been government facilities (Proclamation No. 216 and the Inquirer236 made by Marawi City Mayor Majul
committed and that it was committed by the accused. Probable cause demands more than suspicion; it Report). Gandamra stating that the ASG and the Maute Terror
requires less than evidence that would justify conviction. Groups have not taken over any government facility
in Marawi City.
Probable cause, basically premised on common sense, is the most reasonable, most practical, and most
expedient standard by which the President can fully ascertain the existence or non-existence of rebellion,
necessary for a declaration of martial law x x x230 However, the so-called counter-evidence were derived solely from unverified news articles on the internet,
with neither the authors nor the sources shown to have affirmed the contents thereof It was not even shown
that efforts were made to secure such affirmation albeit the circumstances proved futile. As the Court has
c) Inaccuracies, simulations, consistently ruled, news articles are hearsay evidence, twice removed, and are thus without any probative
falsities, and hyperboles. value, unless offered for a purpose other than proving the truth of the matter asserted.237 This pronouncement
applies with equal force to the Cullamat Petition which likewise submitted online news articles238 as basis for
The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the Report are false, their claim of insufficiency of factual basis.
inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned, the Court is not concerned about
absolute correctness, accuracy, or precision of the facts because to do so would unduly tie the hands of the Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in these cases.
President in responding to an urgent situation. As long as there are other facts in the proclamation and the written Report indubitably showing the presence
of an actual invasion or rebellion and that public safety requires the declaration and/or suspension, the finding
Specifically, it alleges that the following facts are not true as shown by its counter-evidence.231 of sufficiency of factual basis, stands.

FACTUAL STATEMENTS
(1) that the Maute group attacked Amai Pakpak
Hospital and hoisted the DAESH flag there, among
several locations. As of 0600H of 24 May 2017,
members of the Maute Group were seen guarding the
entry gates of the Amai Pakpak Hospital and that
they held hostage the employees of the Hospital and
took over the PhilHealth office located thereat
(Proclamation No. 216 and Report);
COUNTER-EVIDENCE
Statements made by:
(a) Dr. Amer Saber, Chief of the Hospital
(b) Health Secretary Paulyn Ubial;
(c) PNP Spokesperson Senior Supt. Dionardo Carlos;
(d) AFP Public Affairs Office Chief Co. Edgard
Arevalo; and
(e) Marawi City Mayor Majul Gandamra denying that
the hospital was attacked by the Maute Group citing
online news articles of Philstar, Sunstar, Inquirer,
and Bombo Radyo.232
d) Ruling in Bedol v.
Commission on Elections not
Applicable.
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be admitted on
grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this case is misplaced. The Court
in Bedol made it clear that the doctrine of independent relevant statement, which is an ·exception to the
hearsay rule, applies in cases "where only the fact that such statements were made is relevant, and the truth
or falsity thereof is immaterial."240 Here, the question is not whether such statements were made by Saber, et.
al., but rather whether what they said are true. Thus, contrary to the view of petitioners, the exception
in Bedol finds no application here.

2. that the Maute Group ambushed and burned the Statements made by PNP Director General Ronald e) There are other independent
Marawi Police Station (Proclamation No. 216 and the dela Rosa and Marawi City Mayor Majul Gandamra in facts which support the finding that,
Report); the online news reports of ABS-CBN News and CNN more likely than not, rebellion exists
and that public safety requires it.

72
Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report; along with the protection of the security of the
these alleged false data is an arsenal of other independent facts showing that more likely than not, actua1 nation and the good and safety of the
rebellion exists, and public safety requires the declaration of martial law or suspension of the privilege of the public.
writ of habeas corpus. To be precise, the alleged false and/or inaccurate statements are only five out of the
severa1 statements bulleted in the President's Report. Notably, in the interpellation by Justice Francis H.
Considering the nation's and its people's traumatic experience martial law under the Marcos regime, one would
Jardeleza during the second day of the oral argument, petitioner Lagman admitted that he was not aware or
expect the framers of the 1987 Constitution to stop at nothing from not resuscitating the law. Yet it would
that he had no personal knowledge of the other incidents cited.241 As it thus stands, there is no question or
appear that the constitutional writers entertained no doubt about the necessity and practicality of such specie
challenge with respect to the reliability of the other incidents, which by themselves are ample to preclude the
of extraordinary power and thus, once again, bestowed on the Commander-in-Chief the power to declare
conclusion that the President's report is unreliable and that Proclamation No. 216 was without sufficient factual
martial law albeit in its diluted form.
basis.

Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are necessary for the
Verily, there is no credence to petitioners' claim that the bases for the President's imposition of martial law and
protection of the security of the nation; suspension of the privilege of the writ of habeas corpus is
suspension of the writ of habeas corpus were mostly inaccurate, simulated, false and/or hyperbolic.
"precautionary , and although it might [curtail] certain rights of individuals, [it] is for the purpose of defending
and protecting the security of the state or the entire country and our sovereign people".253 Commissioner Ople
X. Public safety requires the declaration of referred to the suspension of the privilege of the writ of habeas corpus as a "form of immobilization" or "as a
martial law and the suspension of the privilege of means of immobilizing potential internal enemies" "especially in areas like Mindanao."254
the writ of habeas corpus in the whole of
Mindanao.
Aside from protecting the security of the country, martial law also guarantees and promotes public safety. It is
worthy of mention that rebellion alone does not justify the declaration of martial law or suspension of the
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of privilege of the writ of habeas corpus; the public safety requirement must likewise be present.
martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or
suspension of the privilege of the writ of habeas corpus to be valid, there must be a concurrence of actual
b) As Commander-in-Chief, the
rebellion or invasion and the public safety requirement. In his Report, the President noted that the acts of
President receives vital, relevant,
violence perpetrated by the ASG and the Maute Group were directed not only against government forces or
classified, and live information which
establishments but likewise against civilians and their properties.242 In addition and in relation to the armed
equip and assist him in making
hostilities, bomb threats were issued;243 road blockades and checkpoints were set up;244 schools and churches
decisions.
were burned;245 civilian hostages were taken and killed;246 non-Muslims or Christians were targeted;247 young
male Muslims were forced to join their group;248 medical services and delivery of basic services were
hampered;249 reinforcements of government troops and civilian movement were hindered;250 and the security In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for Proclamation
of the entire Mindanao Island was compromised.251 No. 216. For the President, the totality of facts and events, more likely than not, shows that actual rebellion
exists and that public safety requires the declaration of martial law and suspension of the privilege of the writ
of habeas corpus. Otherwise stated, the President believes that there is probable cause that actual rebellion
These particular scenarios convinced the President that the atrocities had already escalated to a level that
exists and public safety warrants the issuance of Proclamation No. 216. In turn, the Court notes that the
risked public safety and thus impelled him to declare martial law and suspend the privilege of the writ
President, in arriving at such a conclusion, relied on the facts and events included in the Report, which we find
of habeas corpus. In the last paragraph of his Report, the President declared:
sufficient.

While the government is presently conducting legitimate operations to address the on-going rebellion, if not
the seeds of invasion, public safety necessitates the continued implementation of martial law and the
suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the
rebellion is completely quelled.252
Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the
privilege of the writ f habeas corpus have been properly and fully complied with. Proclamation No. 216 has
sufficient factual basis there being probable cause to believe that rebellion exists and that public safety
requires the martial law declaration and the suspension of the privilege of the writ of habeas corpus.
XI. Whole of Mindanao
a) The overriding and
paramount concern of martial law is
To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all-
encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has
possession of documents and information classified as "confidential", the contents of which cannot be included
in the Proclamation or Report for reasons of national security. These documents may contain information
detailing the position of government troops and rebels, stock of firearms or ammunitions, ground commands
and operations, names of suspects and sympathizers, etc. , In fact, during the closed door session held by the
Court, some information came to light, although not mentioned in the Proclamation or Report. But then again,
the discretion whether to include the same in the Proclamation or Report is the judgment call of the President.
In fact, petitioners concede to this. During the oral argument, petitioner Lagman admitted that "the assertion
of facts [in the Proclamation and Report] is the call of the President."255
It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the
President as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified evidence or
documents/]reports and be satisfied that the public safety demands the suspension of the
73
writ."256 Significantly, respect to these so-called classified documents is accorded even "when [the] authors of Chief's powers; further curtailment of
or witnesses to these documents may not be revealed."257 Presidential powers should not only
be discouraged but also avoided.
In fine, not only does the President have a wide array of information before him, he also has the right,
prerogative, and the means to access vital, relevant, and confidential data, concomitant with his position as Considering the country's history, it is understandable that the resurgence of martial law would engender
Commander-in-Chief of the Armed Forces. apprehensions among the citizenry. Even the Court as an institution cannot project a stance of nonchalance.
However, the importance of martial law in the context of our society should outweigh one's prejudices and
apprehensions against it. The significance of martial law should not be undermined by unjustified fears and
c) The Court has no machinery
past experience. After all, martial law is critical and crucial to the promotion of public safety, the preservation
or tool equal to that of the
of the nation's sovereignty and ultimately, the survival of our country. It is vital for the protection of the
Commander-in-Chief to ably and
country not only against internal enemies but also against those enemies lurking from beyond our shores. As
properly assess the ground
such, martial law should not be cast aside, or its scope and potency limited and diluted, based on bias and
conditions.
unsubstantiated assumptions.

In contrast, the Court does not have the same resources available to the President. However, this should not
Conscious of these fears and apprehensions, the Constitution placed several safeguards which effectively
be considered as a constitutiona1 lapse. On the contrary, this is in line with the function of the Court,
watered down the power to declare martial law. The 1987 Constitution "[clipped] the powers of [the]
particularly in this instance, to determine the sufficiency of factual basis of Proclamation No. 216. As
Commander-in-Chief because of [the] experience with the previous regime."261 Not only were the grounds
thoroughly discussed in Part VIII, the determination by the Court of the sufficiency of factual basis must be
limited to actual invasion or rebellion, but its duration was likewise fixed at 60 days, unless sooner revoked,
limited only to the facts and information mentioned in the Report and Proclamation. In fact, the Court,
nullified, or extended; at the same time, it is subject to the veto powers of the Court and Congress.
in David v. President Macapagal-Arroyo,258 cautioned not to "undertake an independent investigation beyond
the pleadings." In this regard, "the Court will have to rely on the fact-finding capabilities of the [E]xecutive
[D]epartment;"259 in turn, the Executive Department will have to open its findings to the Court,260 which it did Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted his colleagues
during the closed door session last June 15, 2017. in the Constitutional Convention to look at martial law from a new perspective by elaborating on the sufficiency
of the proposed safeguards:
d) The 1987 Constitution
grants to the President, as MR. MONSOD. x x x
Commander-in-Chief, the discretion
to determine the territorial coverage
Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a fixed
or application of martial law or
period not exceeding 60 days, which is subject to judicial review, is going to result in numerous violations of
suspension of the privilege of the writ
human rights, the predominance of the military forever and in untold sufferings. Madam President, we are
of habeas corpus.
talking about invasion and rebellion. We may not have any freedom to speak of after 60 days, if we put as a
precondition the concurrence of Congress. That might prevent the President from acting at that time in order
Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the public safety to meet the problem. So I would like to suggest that, perhaps, we should look at this in its proper perspective.
requires it, [the President] may x x x suspend the privilege of writ of habeas corpus or place the Philippines We are only looking at a very specific case. We are only looking at a case of the first 60 days at its maximum.
or any part thereof under martial law." Clearly, the Constitution grants to the President the discretion to And we are looking at actual invasion and rebellion, and there are other safeguards in those cases.262
determine the territorial coverage of martial law and the suspension of the privilege of the writ of habeas
corpus. He may put the entire Philippines or only a part thereof under martial law.
Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against presidential
abuses and commission of human rights violations. In voting yes for the elimination of the requirement of prior
This is both an acknowledgement and a recognition that it is the Executive Department, particularly the concurrence of Congress, Bishop Bacani stated, viz.:
President as Commander-in-Chief, who is the repository of vital, classified, and live information necessary for
and relevant in calibrating the territorial application of martial law and the suspension of the privilege of the
BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern for human
writ of habeas corpus. It, too, is a concession that the President has the tactical and military support, and thus
rights, I believe that a good President can also safeguard human rights and human lives as well. And I do not
has a more informed understanding of what is happening on the ground. Thus, the Constitution imposed a
want to unduly emasculate the powers of the President. Xxx263
limitation on the period of application, which is 60 days, unless sooner nullified, revoked or extended, but not
on the territorial scope or area of coverage; it merely stated "the Philippines or any part thereof," depending
on the assessment of the President. Commissioner Delos Reyes shared the same sentiment, to wit:

e) The Constitution has MR. DE LOS REYES. May I explain my vote, Madam President.
provided sufficient safeguards against
possible abuses of Commander-in-

74
x x x The power of the President to impose martial law is doubtless of a very high and delicate nature. A free
people are naturally jealous of the exercise of military power, and the power to impose martial law is certainly
felt to be one of no ordinary magnitude. But as presented by the Committee, there are many safeguards: 1) it
is limited to 60 days; 2) Congress can revoke it; 3) the Supreme Court can still review as to the sufficiency of
factual basis; and 4) it does not suspend the operation of the Constitution. To repeat what I have quoted when
I interpellated Commissioner Monsod, it is said that the power to impose martial law is dangerous to liberty
and may be abused. All powers may be abused if placed in unworthy hands. But it would be difficult, we think,
to point out any other hands in which this power will be more safe and at the same time equally effectual.
When citizens of the State are in arms against each other and the constituted authorities are unable to execute
the laws, the action of the President must be prompt or it is of little value. x x x264 (Emphasis supplied)
At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution
that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his extraordinary
powers are already in place and that no further emasculation of the presidential powers is called for in the
guise of additional safeguards. The Constitution recognizes that any further curtailment, encumbrance, or
emasculation of the presidential powers would not generate any good among the three co-equal branches, and
to the country and its citizens as a whole. Thus:
MR. OPLE. The reason for my concern, Madam President, is that when we put all of these encumbrances on the
President and Commander-in-Chief during an actual invasion or rebellion, given an intractable Congress that
may be dominated by opposition parties, we may be actually impelling the President to use the sword of
Alexander to cut the Gordian knot by just declaring a revolutionary government that sets him free to deal with
the invasion or the insurrection. x x x265 (Emphasis supplied)
f) Rebellion and public safety;
nature, scope, and range.
It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the
government;"266 and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd
action, that cannot be confined a priori, within predetermined bounds."267 We understand this to mean that the
precise extent or range of the rebellion could not be measured by exact metes and bounds.
To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ermita,
Manila where the Court's compound is situated. They overpowered the guards, entered the Court's premises,
and hoisted the ISIS flag. Their motive was political, i.e., they want to remove from the allegiance to the
Philippine government a part of the territory of the Philippines, particularly the Court's compound and establish
it as an ISIS-territory.
Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly say that
the rebellion is confined only within the Court's compound? Definitely not. The possibility that there are other
rebels positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or the Manila
Science High Schoo1 (MSHS) could not be discounted. There is no way of knowing that all participants in the
rebellion went and stayed inside the Court's compound.
Neither could it be validly argued that the armed contingent positioned in PGH or MSHS is not engaged in
rebellion because there is no publicity in their acts as, in fact, they were merely lurking inside the compound of
PGH and MSHS. However, it must be pointed out that for the crime of rebellion to be consummated, it
is not required that all armed participants should congregate in one place, in this case, the Court's compound,
and publicly rise in arms against the government for the attainment of their culpable purpose. It suffices that
a portion of the contingent gathered and formed a mass or a crowd and engaged in an armed public uprising
against the government. Similarly, it cannot be validly concluded that the grounds on which the armed public
uprising actually to6k place should be the measure of the extent, scope or range, of the actual I rebellion. This
is logical since the other rebels positioned in PGH, MSHS, I or elsewhere, whose participation did not involve
the publicity aspect of rebellion, may also be considered as engaging in the crime of rebellion.
Proceeding from the same illustration, suppose we say that the President, after finding probable cause that
there exists actual rebellion and that public safety requires it, declares martial law and suspends the writ
of habeas corpus in the whole of Metro Manila, could we then say that the territorial coverage of the
proclamation is too expansive?
To answer this question, we revert back to the premise that the discretion to determine the territorial scope of
martial law lies with the President. The Constitution grants him the prerogative whether to put the entire
Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be
confined only in the particular place where the armed public uprising actually transpired. This is not only
practical but also logical. Martial law is an urgent measure since at stake is the nation's territorial sovereignty
and survival. As such, the President has to respond quickly. After the rebellion in the Court's compound, he
need not wait for another rebellion to be mounted in Quezon City before he could impose martial law thereat.
If that is the case, then the President would have to wait until every remote corner in the country is infested
with rebels before he could declare martial law in the entire Philippines. For sure, this is not the scenario
envisioned by the Constitution.
Going back to the illustration above, although the President is not required to impose martial law only within
the Court's compound because it is where the armed public uprising actually transpired, he may do so if he
sees fit. At the same time, however, he is not precluded from expanding the coverage of martial law beyond
the Court's compound. After all, rebellion is not confined within predetermined bounds.
Public safety, which is another component element for the declaration of martial law, "involves the prevention
of and protection from events that could endanger the safety of the general public from significant danger,
injury/harm, or damage, such as crimes or disasters."268 Public safety is an abstract term; it does not take any
physical form. Plainly, its range, extent or scope could not be physically measured by metes and bounds.
Perhaps another reason why the territorial scope of martial law should not necessarily be limited to the
particular vicinity where the armed public uprising actually transpired, is because of the unique characteristic
of rebellion as a crime. "The crime of rebellion consists of many acts. It is a vast movement of men and a
complex net of intrigues and plots. Acts committed in furtherance of rebellion[,] though crimes in
themselves[,] are deemed absorbed in one single crime of rebellion."269 Rebellion absorbs "other acts
committed in its pursuance".270 Direct assault,271 murder,272 homicide,273 arson,274 robbery,275 and
kidnapping,276 just to name a few, are absorbed in the crime of rebellion if committed in furtherance of
rebellion; "[i]t cannot be made a basis of a separate charge."277 Jurisprudence also teaches that not only
common crimes may be absorbed in rebellion but also "offenses under special laws [such as Presidential
Decree No. 1829]278 which are perpetrated in furtherance of the political offense".279 "All crimes, whether
punishable under a special law or general law, which are me e components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as
separate crimes in themselves.280
Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in furtherance
of the crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila, is stripped of its common
complexion and is absorbed in the crime of rebellion. This all the more makes it difficult to confine the
application of martial law only to the place where the armed public uprising is actually taking place. In the
75
illustration above, Padre Faura could only be the nerve center of the rebellion but at the same time rebellion is
also happening in Makati City.
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the
"range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical
dimensions. Their transitory and abstract nature defies precise measurements; hence, the determination of the
territorial scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must
have considered these limitations when it granted the President wide leeway and flexibility in determining the
territorial scope of martial law.
Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there
is actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. It is not
intended merely to prevent the escape of lawless elements from Marawi City, but also to avoid enemy
reinforcements and to cut their supply lines coming from different parts of Mindanao. Thus, limiting the
proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose
of declaring martial law, it will make the exercise thereof ineffective and useless.
g) The Court must stay within
the confines of its power.
The Court can only act within the confines of its power.1âwphi1 For the Court to overreach is to infringe upon
another's territory. Clearly, the power to determine the scope of territorial application belongs to the President.
"The Court cannot indulge in judicial legislation without violating the principle of separation of powers, and,
hence, undermining the foundation of our republican system."281
To reiterate, the Court is not equipped with the competence and logistical machinery to determine the
strategical value of other places in the military's efforts to quell the rebellion and restore peace. It would be
engaging in an act of adventurism if it dares to embark on a mission of deciphering the territorial metes and
bounds of martial law. To be blunt about it, hours after the proclamation of martial law none of the members
of this Court could have divined that more than ten thousand souls would be forced to evacuate to Iligan and
Cagayan de Oro and that the military would have to secure those places also; none of us could have predicted
that Cayamora Maute would be arrested in Davao City or that his wife Ominta Romato Maute would be
apprehended in Masiu, Lanao del Sur; and, none of us had an inkling that the Bangsamoro Islamic Freedom
Fighters (BIFF) would launch an attack in Cotabato City. The Court has no military background and technical
expertise to predict that. In the same manner, the Court lacks the technical capability to determine which part
of Mindanao would best serve as forward operating base of the military in their present endeavor in Mindanao.
Until now the Court is in a quandary and can only speculate whether the 60-day lifespan of Proclamation No.
216 could outlive the present hostilities in Mindanao. It is on this score that the Court should give the
President sufficient leeway to address the peace and order problem in Mindanao.
Thus, considering the current situation, it will not serve any purpose if the President is goaded into using "the
sword of Alexander to cut the Gordian knot"282 by attempting to impose another encumbrance; after all "the
declaration of martial law or the suspension of the privilege of the writ of habeas corpus is essentially an
executive act."283
Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the President a
nudge, so to speak, as some sort of reminder of the nation's experience under the Marcos-styled martial law.
However, it is not fair to judge President Duterte based on the ills some of us may have experienced during
the Marcos-martial law era. At this point, the Court quotes the insightful discourse of Commissioner Ople:
MR. OPLE. x x x
xxxx
Madam President, there is a tendency to equate patriotism with rendering the executive branch of the
government impotent, as though by reducing drastically the powers of the executive, we are rendering a
service to human welfare. I think it is also important to understand that the extraordinary measures
contemplated in the Article on the Executive pertain to a practical state of war existing in this country when
national security will become a common bond of patriotism of all Filipinos, especially if it is an actual invasion
or an actual rebellion, and the President may have to be given a minimum flexibility to cope with such
unprecedented threats to the survival of a nation. I think the Commission has done so but at the same time
has not, in any manner, shunned the task of putting these powers under a whole system of checks and
balances, including the possible revocation at any time of a proclamation of martial law by the Congress, and
in any case a definite determination of these extraordinary powers, subject only to another extension to be
determined by Congress in the event that it is necessary to do so because the emergency persists.
So, I think this Article on the Executive for which I voted is completely responsible; it is attuned to the
freedom and the rights of the citizenry. It does not render the presidency impotent and, at the same time, it
allows for a vigorous representation of the people through their Congress when an emergency measure is in
force and effect.284
h) Several local armed groups
have formed linkages aimed at
committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.
With a predominantly Muslim population, Marawi City is "the only Islamic City of the South."285 On April 15,
1980, it was conferred the official title of "Islamic City of Marawi."286 The city's first name, "Dansalan," "was
derived from the word 'dansal', meaning a destination point or rendezvous. Literally, it also means arrival or
coming."287 Marawi lies in the heart of Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in
Marawi City thereby making Marawi City the point of reference of all roads in Mindanao.
Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for
symbolic and strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in the
Report, "[l]awless armed groups have historically used provinces adjoining Marawi City as escape routes,
supply lines, and backdoor passages;"288 there is also the plan to establish a wilayat in Mindanao by staging
the siege of Marawi. The report that prior to May 23, 2017, Abdullah Maute had already dispatched some of his
men to various places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing operations,
carnapping, and the murder of military and police personnel,289 must also be considered. Indeed, there is some
semblance of truth to the contention that Marawi is only the start, and Mindanao the end.
Other events also show that the atrocities were not concentrated in Marawi City. Consider these:
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno, Lamita City,
Basilan. A civilian was killed while another was wounded.290
b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island, Taganak, Tawi-Tawi.291
76
c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan resulting in the
death of two children and the wounding of three others.292
d. From March to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in
Mindanao. These resulted in the death and wounding of several personalities.293
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu.294
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and government
troops.295
g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde.296
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later.297
There were also intelligence reports from the military about offensives committed by the ASG and other local
rebel groups. All these suggest that the rebellion in Marawi has already spilled over to other parts of Mindanao.
Moreover, considering the widespread atrocities in Mindanao and the linkages established among rebel groups,
the armed uprising that was initially staged in Marawi cannot be justified as confined only to Marawi. The Court
therefore will not simply disregard the events that happened during the Davao City bombing, the Mamasapano
massacre, the Zamboanga City siege, and the countless bombings in Cotabato, Sultan Kudarat, Sulu, and
Basilan, among others.298 The Court cannot simply take the battle of Marawi in isolation. As a crime without
predetermined bounds, the President has reasonable basis to believe that the declaration of martial law, as
well as the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, is most
necessary, effective, and called for by the circumstances.
i) Terrorism neither negates
nor absorbs rebellion.
It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While some groups
have sought legal and peaceful means, others have resorted to violent extremism and terrorism. Rebellion
may be subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate
crimes. In fact, rebellion is only one of the various means by which terrorism can be committed.299 However,
while the scope of terrorism may be comprehensive, its purpose is distinct and well-defined. The objective of a
"'terrorist" is to sow and create a condition of widespread fear among the populace in order to coerce the
government to give in to an unlawful demand. This condition of widespread fear is traditionally achieved
through bombing, kidnapping, mass killing, and beheading, among others. In contrast, the purpose of
rebellion, as previously discussed, is political, i.e., (a) to remove from the allegiance to the Philippine
Government or its laws: (i) the territory of the Philippines or any part thereof; (ii) any body of land, naval, or
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.
In determining what crime was committed, we have to look into the main objective of the malefactors. If it is
political, such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to
establish a wilayat therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and
create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the
government to give in to an unlawful demand, the crime is terrorism. Here, we have already explained and
ruled that the President did not err in believing that what is going on in Marawi City is one contemplated under
the crime of rebellion.
In any case, even assuming that the insurgency in Marawi City can also be characterized as terrorism, the
same will not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise
known as the Human Security Act of 2007 expressly provides that "[n]othing in this Act shall be interpreted as
a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the
government." Thus, as long as the President complies with all the requirements of Section 18, Article VII, the
existence of terrorism cannot prevent him from exercising his extraordinary power of proclaiming martial ' law
or suspending the privilege of the writ of habeas corpus. After all, the extraordinary powers of the President
are bestowed on him by the Constitution. No act of Congress can, therefore, curtail or diminish such powers.
Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and terrorism are
mutuallty exclusive of each other or that they cannot co-exist together. RA 9372 does not expressly or
impliedly repeal Art. 134 of the RPC. And while rebellion is one of the predicate crimes of terrorism, one cannot
absorb the other as they have different elements.300
Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege of the
writ of habeas corpus in the entire Mindanao region.
At the end of the day, however ardently and passionately we may believe in the validity or correctness of the
varied and contentious causes or principles that we espouse, advocate or champion, let us not forget that at
this point in time we, the Filipino people, are confronted with a crisis of such magnitude and proportion that we
all need to summon the spirit of unity and act as one undivided nation, if we are to overcome and prevail in
the struggle at hand.
Let us face up to the fact that the siege in Marawi City has entered the second month and only God or Allah
knows when it would end. Let us take notice of the fact that the casualties of the war are mounting. To date,
418 have died. Out of that were 303 Maute rebels as against 71 government troops and 44 civilians.
Can we not sheathe our swords and pause for a while to bury our dead, including our differences and
prejudices?
WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216
and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED.
SO ORDERED.
77
 December 5, 2017
G.R. No. 231658, G.R. No. 231658, G.R. No. 231771, G.R. No. 231774
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A.
BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners,
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY
OF THE DEPARTMENT OF NATIONAL DEFENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN.
EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW
IMPLEMENTOR, , Respondents.
RESOLUTION
DEL CASTILLO, J.:
On July 4, 2017, the Court rendered its Decision finding sufficient factual bases for the issuance of
Proclamation No. 216 and declaring it as constitutional. Petitioners timely filed separate Motions for
Reconsideration. The Office of the Solicitor General (OSG) also filed its Comment.
After a careful review of the arguments raised by the parties, we find no reason to reverse our July 4, 2017
Decision.
All three Motions for Reconsideration question two aspects of the July 4, 2017 Decision, i.e., the sufficiency of
the factual bases of Proclamation No. 216 and the parameters used in determining the sufficiency of the
factual bases. Petitioners, however, failed to present any substantial argument to convince us to reconsider
our July 4, 2017 Decision.
Sufficiency of the Factual Bases of
Proclamation No. 216 has been
rendered moot by tile expiration of the
said Proclamation.
Section 18, Article VII of the Constitution provides that ''the President x x x may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. x x x 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."
From the foregoing, it is clear that the President's declaration of martial law and/or suspension of the privilege
of the writ of habeas corpus is effective for 60 days. As aptly described by Commissioner Monsod, "this
declaration has a time fuse. It is only good for a maximum of 60 days. At the end of 60 days, it automatically
terminates."1 Any extension thereof should be determined by Congress. The act of declaring martial law and/or
suspending the privilege of the writ of habeas corpus by the President, however, is separate from the approval
of the extension of the declaration and/or suspension by Congress. The initial declaration of martial law and/or
suspension of the writ of habeas corpus is determined solely by the President, while the extension of the
declaration and/or suspension, although initiated by the President, is approved by Congress,
In this case, Proclamation No. 216 issued on 1vfay 23, 2017 expired on July 23, 2017. Consequently, the issue
of whether there were sufficient factual bases for the issuance of the said Proclamation has been rendered
moot by its expiration. We have consistently ruled that a case becomes moot and academic when it "ceases to
present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no
practical value."2 As correctly pointed out by the OSG, "the martial law and suspension of the privilege of the
writ of habeas corpus now in effect in Mindanao no longer finds basis in Proclamation No. 216"3 but in
Resolution of Both Houses No. 11 (RBH No. 11) adopted on July 22, 2017. RBH No. 11 is totally different and
distinct from Proclamation No. 216. The former is a joint executive-legislative act while the latter is purely
executive in nature.
The decision of the Congress to extend the same is of no moment. The approval of the extension is a distinct
and separate incident, over which we have no jurisdiction to review as the instant Petition only pertains to the
President's issuance of Proclamation No. 216.
Thus, considering the expiration of Proclamation No. 216 and considering further the approval of the extension
of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by Congress,
we find no reason to disturb our finding that there were sufficient factual bases for the President's issuance of
Proclamation No. 216.
However, although the Motions for Reconsideration are dismissible on the ground of mootness, we deem it
prudent to emphasize our discussion on the parameters for determining the sufficiency of factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus.
The Constitution requires sufficiency of
factual basis, not accuracy.
Petitioners, in essence, posit that the Court is required to determine the accuracy of the factual basis of the
President for the declaration of martial law and/or the suspension of the privilege of the writ of habeas
corpus. To recall, we held that "the parameters for determining the sufficiency of factual basis are as follows:
1) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3)
there is probable cause for the President to believe that there is actual rebellion or invasion."4 Moreover, we
stated in the assailed Decision that "the phrase 'sufficiency of factual basis' in Section 18, Article VII of the
Constitution should be understood as the only test for judicial review of the President's power to declare
martial law and suspend the privilege of the writ of habeas corpus."5 Requiring the Court to determine the
accuracy of the tactual basis of the President contravenes the Constitution as Section 18, Article VII only
requires the Court to determine the sufficiency of the factual basis. Accuracy is not the same as sufficiency as
the former requires a higher degree of standard. As we have explained in our July 4, 2017 Decision:
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should
look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should
the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the
President could not be expected to verify the accuracy and veracity of all facts reported to him due to the
urgency of the situation. To require precision in the President's appreciation of facts would unduly burden him
and therefore impede the process of his decision-making. Such a requirement will practically necessitate the
President to be on the ground to confirm the correctness of the reports submitted to him within a period that
only the circumstances obtaining would be able to dictate. Such a scenario, of course, would not only place the
President in peril but would also defeat the very purpose of the grant of emergency powers upon him, that is,
to borrow the words of Justice Antonio T. Carpio in Fortun, to 'immediately put an end to the root cause of the
emergency'. Possibly, by the time the President is satisfied with the correctness of the facts in his possession,
78
it would be too late in the day as the invasion or rebellion could have already escalated to a level that is hard,
if not impossible, to curtail.
Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible
evidence that the President can appraise and to which he can anchor his judgment, as appears to be the case
here.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J.
Velasco, Jr. in Fortun:
President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the
Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was
within their realm of competence, and that a state of emergency has also been declared in Central Mindanao
to prevent lawless violence similar to the 'Maguindanao massacre,' which may be an indication that there is a
threat to the public safety warranting a declaration of martial law or suspension of the writ.
Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending
the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of
rebellion. The President is called to act as public safety requires.
Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law
even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent
events prove that the situation had not been accurately reported to him. After all, the Court's review is
confined to the sufficiency, not accuracy, of the information at hand during the declaration or suspension;
subsequent events do not have any bearing insofar as the Court's review is concerned. x x x
Hence, the maxim falsus in uno,falsus in omnibus finds no application in this case. Falsities of and/or
inaccuracies in some of the facts stated in the proclamation and -written report are not enough
reasons for the Court to invalidate the declaration and/or suspension as long as there are other facts in
the proclamation and the written Report that support the conclusion that there is an actual
invasion or rebellion and that public safety requires the declaration and/or suspension.
In sum, the Court's power to review is limited to the determination of whether the President in
declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient
factual basis. Thus, our review would be limited to an examination on whether the President acted
within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at
the time of the declaration or suspension are sufficient for him to declare martial law or suspend
the privilege of the writ of habeas corpus. 6 (Emphasis supplied)
This is consistent with our ruling that "the President only needs to convince himself that there is probable
cause or evidence showing that more likely than not a rebellion was committed or is being committed."7 The
standard of proof of probable cause does not require absolute truth. Since "martial law is a matter of urgency
x x x the President x x x is not expected to completely validate all the information he received before declaring
martial law or suspending the privilege of the writ of habeas corpus."8
Notably, out of the several facts advanced by the President as basis for Proclamation No. 216, only five of
them were being questioned by the petitioners. However, they were not even successful in their refutation
since their "counter-evidence were derived solely from unverified news articles on the internet, with neither
the authors nor the sources shown to have affirmed the contents thereof. It was not even shown
that efforts were made to secure such affirmation albeit the circumstances proved futile."9 Even
granting that the petitioners were successful in their attempt to refute the aforesaid five incidents, there are
other facts sufficient to serve as factual basis for the declaration of martial law and suspension of the privilege
of the writ of habeas corpus.
There is absolutely no basis to petitioners' claim that the Court abdicated its power to review. To be sure, our
findings that there was sufficient factual basis for the issuance of Proclamation No. 216 and that there was
probable cause, that is, that more likely than not, rebellion exists and that public safety requires the
declaration of martial law and suspension of the privilege of the writ of habeas corpus, were reached after due
consideration of the facts, events, and information enumerated in the proclamation and report to Congress.
The Court did not content itself with the examination only of the pleadings/documents submitted by the
parties. In addition, it conducted a closed-door session where it tried to ferret additional information,
confirmation and clarification from the resource persons, particularly Secretary of National Defense Delfin
Lorenzana and Armed Forces of the Philippines Chief of Staff Eduardo Año. At this juncture, it must be stated
that the Court is not even obliged to summon witnesses as long as it satisfies itself with the sufficiency of the
factual basis; it is purely discretionary on its part whether to call additional witnesses. In any event, reliance
on so-called intelligence reports, even without presentation of its author, is proper and allowed by law.
The Court's acknowledgment of the President's superior data gathering apparatus, and the fact that it has
given the Executive much leeway and flexibility, should never be understood as a prelude to surrendering the
judicial power to review. The Court never intended to concede its power to verify the sufficiency of factual
basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus. The
leeway and flexibility accorded to the Executive must be construed in the context of the present set up wherein
the declaration of martial law and suspension of the privilege of the writ of habeas corpus are grounded on
actual invasion or rebellion, not on imminent threat or danger thereof; as such, time is of the essence for the
President to act quickly to protect the country. It is also a recognition of the unassailable fact that as
Commander-in Chief, the President has access to confidential information. In fact, Fr. Joaquin Bernas even
opined that the Court might have to rely on the fact-finding capabilities of the Executive; in turn, the Executive
should share its findings with the Court if it wants to convince the latter of the propriety of its
action.10 Moreover, it is based on the understanding that martial law is a flexible concept; that "the precise
extent or range of the rebellion [cannot] be measured by exact metes and bounds;"11 that public safety
requirement cannot be quantified or measured by metes and bounds; that the Constitution does not provide
that the territorial scope or coverage of martial law should be confined only to those areas where the armed
public uprising actually transpired; that it will be impractical to expand the territorial application of martial law
each time the coverage of actual rebellion expands and in direct proportion therewith; and, that there is
always a possibility that the rebellion and other accompanying hostilities will spill over.
As regards the other arguments raised by petitioners, the same are a mere rehash which have already been
considered and found to have no merit.
WHEREFORE, petitioners' Motions for Reconsideration are hereby DENIED WITH FINALITY for mootness
and lack of merit.
No further pleadings shall be entertained.
Let entry of judgment be made in immediately.
SO ORDERED.
79

REPRESENTATIVES EDCEL LAGMAN, TOMASITO S. VILLARIN, EDGAR R. ERICE, TEDDY BRAWNER
BAGUILAT, JR., GARY C. ALEJANO, AND EMMANUEL A. BILLONES, Petitioners, vs. SENATE
PRESIDENT AQUILINO PIMENTEL III, SPEAKER PANTALEON D. ALVAREZ, EXECUTIVE SECRETARY
SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN N. LORENZANA, BUDGET SECRETARY
BENJAMIN E. DIOKNO AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL REY
LEONARDO GUERRERO, Respondents.
GR Nos. 235935, 236061, 236145, 236155
February 6, 2018
TOPIC: martial law extension
PONENTE: Tijam
FACTS:
These are consolidated petitions assailing the constitutionality of the extension of the proclamation of martial
law and suspension of the writ of habeas corpus in the entire Mindanao for one year from January 1 to
December 31, 2018.
On May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, declaring a state of martial law
and suspending the privilege of the writ of habeas corpus in the whole of Mindanao for a period not exceeding
sixty (60) days, to address the rebellion mounted by members of the Maute Group and Abu Sayyaf Group
(ASG).
On May 25, 2017, within the 48-hour period set in Section 18, Article VII of the Constitution, the President
submitted to the Senate and the House of Representatives his written Report, citing the events and reasons
that impelled him to issue Proclamation No. 216. Thereafter, the Senate adopted P.S. Resolution No. 388 while
the House of Representatives issued House Resolution No. 1050, both expressing full support to the
Proclamation and finding no cause to revoke the same.
On July 18, 2017, the President requested the Congress to extend the effectivity of Proclamation No. 216. In a
Special Joint Session on July 22, 2017, the Congress adopted Resolution of Both Houses No. 2 extending
Proclamation No. 216 until December 31, 2017.
In a letter to the President, through Defense Secretary Lorenzana, AFP Chief of Staff General Guerrero,
recommended the further extension of martial law and suspension of the privilege of the writ of
habeas corpus in the entire Mindanao for one year beginning January 1, 2018 “for compelling reasons based
on current security assessment.”
On the basis of this security assessment, Secretary Lorenzana wrote a similar recommendation to the
President “primarily to ensure total eradication of DAESH-inspired Da’awatul Islamiyah Waliyatul Masriq
(DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), and
the communist terrorists (CTs) and their coddlers, supporters and financiers, and to ensure speedy
rehabilitation, recovery and reconstruction efforts in Marawi, and the attainment of lasting peace, stability,
economic development and prosperity in Mindanao.”
Acting on said recommendations, the President, in a letter dated December 8, 2017, asked both the Senate
and the House of Representatives to further extend the proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in the entire Mindanao for one year, from January 1, 2018 to December
31, 2018, or for such period as the Congress may determine.
On December 13, 2017, the Senate and the House of Representatives, in a joint session, adopted Resolution of
Both Houses No. 4 further extending the period of martial law and suspension of the privilege of the writ of
habeas corpus in the entire Mindanao for one year, from January 1, 2018 to December 31, 2018.
ISSUE:
PROCEDURAL:
1. Whether or not the petitioners’ failure to attach Resolution of Both Houses No. 4 fatal to their
petitions.
2. Whether or not the President should be dropped as party respondent.
3. Whether or not the Congress was an indispensable party to the consolidated petitions.
4. Whether or not the Court was barred by the doctrine of conclusiveness of judgment from examining
the persistence of rebellion in Mindanao.
5. Whether or not the petitioners may invoke the expanded (certiorari) jurisdiction of the Supreme Court
under Section 1, Article VIII of the Constitution in seeking review of the extension of Proclamation No. 216.
6. Whether or not the manner in which Congress deliberated on the President’s request for extension of
martial law is subject to judicial review.
7. Whether or not the Congress has the power to extend and determine the period of martial law and
the suspension of the privilege of the writ of habeas corpus.
8. Whether or not the President and the Congress had sufficient factual basis to extend Proclamation No.
216.
9. Whether or not there is necessity to impose tests on the choice and manner of the President’s
exercise of military powers.
10. Whether or not the petitioners were able to comply with all the requisites for the issuance of an
injunctive writ.
HELD:
FIRST ISSUE: Whether or not the petitioners’ failure to attach Resolution of Both Houses No. 4 fatal to their
petitions. NO.
The Court held that since Resolution of Both Houses No. 4 is an official act of Congress, the they can take
judicial notice thereof. Section 1, Rule 129 of the Rules of Court provides that a court can take judicial notice
of the official acts of the legislative department without the introduction of evidence.
 Moreover, the Court noted that respondents annexed a copy of the Resolution to their Consolidated Comment.
 
80
SECOND ISSUE: Whether or not the President should be dropped as party respondent. YES.
The Court held that the President should be dropped as party respondent considering that he enjoys the
presidential immunity from suit.
The Court reiterated their ruling in Rubrico v. Macapagal-Arroyo, to wit:
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.
THIRD ISSUE: Whether or not the Congress was an indispensable party to the consolidated petitions. YES.
The Court held that in cases impugning the extension of martial law for lack of sufficient factual basis, the
entire body of the Congress, composed of the Senate and the House of Representatives, must be impleaded,
being an indispensable party thereto.
The Court further ruled that in these consolidated petitions, petitioners are questioning the constitutionality of
a congressional act, specifically the approval of the President’s request to extend martial law in Mindanao.
Clearly, therefore, it is the Congress as a body, and not just its leadership, which has interest in the subject
matter of these cases.
 
FOURTH ISSUE: Whether or not the Court was barred by the doctrine of conclusiveness of judgment from
examining the persistence of rebellion in Mindanao. NO.
The Court held that as to the second requirement, there was np identity of issues between the Lagman and
Padilla cases, on one hand, and the case at bar.
Conclusiveness of judgment, a species of the principle of res judicata, bars the re-litigation of any right, fact or
matter in issue directly adjudicated or necessarily involved in the determination of an action before a
competent court in which judgment is rendered on the merits. In order to successfully apply in a succeeding
litigation the doctrine of conclusiveness of judgment, mere identities of parties and issues is required.
1.
The issue put forth by petitioners in the earlier Lagman case, which this Court already settled, refers to the
existence of a state of rebellion which would trigger the President’s initial declaration of martial law, whereas
the factual issue in the case at bar refers to the persistence of the same rebellion in Mindanao which would
justify the extension of martial law.
2.
The fact that petitioners are not barred from questioning the alleged persistence of the rebellion in these
consolidated petitions is also supported by the transitory nature of the Court’s judgment on the
sufficiency of the factual basis for a declaration of martial law.
Verily, the Court’s review in martial law cases is largely dependent on the existing factual scenario used as
basis for its imposition or extension. The gravity and scope of rebellion or invasion, as the case may be, should
necessarily be re-examined, in order to make a justiciable determination on whether rebellion persists in
Mindanao as to justify an extension of a state of martial law.
FIFTH ISSUE: Whether or not the petitioners may invoke the expanded (certiorari) jurisdiction of the
Supreme Court under Section 1, Article VIII of the Constitution in seeking review of the extension of
Proclamation No. 216. NO.
The Court reiterated their earlier ruling in Lagman case where they emphasized that the Court’s jurisdiction
under the third paragraph of Section 18, Article VII is special and specific, different from those enumerated in
Sections 1 and 5 of Article VIII. It was further stressed therein that the standard of review in a petition for
certiorari is whether the respondent has committed any grave abuse of discretion amounting to lack or excess
of jurisdiction in the performance of his or her functions, whereas under Section 18, Article VII, the Court is
tasked to review the sufficiency of the factual basis of the President’s exercise of emergency powers.
Hence, the Court concluded that a petition for certiorari pursuant to Section 1 or Section 5 of Article VIII is not
the proper tool to review the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus.
The Court added that to apply the standard of review in a petition for certiorari will emasculate the Court’s
constitutional task under Section 18, Article VII, which was precisely meant to provide an additional safeguard
against possible martial law abuse and limit the extent of the powers of the Commander-in-Chief.
Finally, the Court held that a certiorari petition invoking the Court’s expanded jurisdiction is not the proper
remedy to review the sufficiency of the factual basis of the Congress’ extension of the proclamation of martial
law or suspension of the privilege of the writ.
PRELIMINARIES ON MARTIAL LAW
Congressional check on martial law
Congressional check on the President’s martial law and suspension powers thus consists of:
The power to review the President’s proclamation of martial law or suspension of the privilege of the
writ of habeas corpus, and to revoke such proclamation or suspension. The review is “automatic in the sense
that it may be activated by Congress itself at any time after the proclamation or suspension is made.” The
Congress’ decision to revoke the proclamation or suspension cannot be set aside by the President.
The power to approve any extension of the proclamation or suspension, upon the President’s
initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it.
81
Joint executive and legislative act
When approved by the Congress, the extension of the proclamation or suspension, as described during the
deliberations on the 1987 Constitution, becomes a “joint executive and legislative act” or a “collective
judgment”         between the President and the Congress.
SIXTH ISSUE: Whether or not the manner in which Congress deliberated on the President’s request for
extension of martial law is subject to judicial review. NO.
The Court ruled that they cannot review the rules promulgated by Congress in the absence of any
constitutional violation. Petitioners have not shown that the above-quoted rules of the Joint Session violated
any provision or right under the Constitution.
Construing the full discretionary power granted to the Congress in promulgating its rules, the Court, in the
case of Spouses Dela Paz (Ret.) v. Senate Committee on Foreign Relations, et al. explained that the limitation
of this unrestricted power deals only with the imperatives of quorum, voting and publication. It should be
added that there must be a reasonable relation between the mode or method of proceeding established by the
rule and the result which is sought to be attained.
In the instant case, the rules in question did not pertain to quorum, voting or publication. Furthermore,
deliberations on extending martial law certainly cannot be equated to the consideration of regular or ordinary
legislation. The Congress may consider such matter as urgent as to necessitate swift action, or it may take its
time investigating the factual situation. This Court cannot engage in undue speculation that members of
Congress did not review and study the President’s request based on a bare allegation that the time allotted for
deliberation was too short.
 
SEVENTH ISSUE: Whether or not the Congress has the power to extend and determine the period of martial
law and the suspension of the privilege of the writ of habeas corpus. YES.
Section 18, Article VII of the 1987 Constitution is indisputably silent as to how many times the Congress, upon
the initiative of the President, may extend the proclamation of martial law or the suspension of the privilege of
habeas corpus.
What is clear is that the ONLY limitations to the exercise of the congressional authority to extend such
proclamation or suspension are (1) that the extension should be upon the President’s initiative; (2)
that it should be grounded on the persistence of the invasion or rebellion and the demands of
public safety; and (3) that it is subject to the Court’s review of the sufficiency of its factual basis
upon the petition of any citizen.
Section 18, Article VII did not also fix the period of the extension of the proclamation and suspension.
However, it clearly gave the Congress the authority to decide on its duration; thus, the provision states that
that the extension shall be “for a period to be determined by the Congress.”
Commissioner Jose E. Suarez’s proposal to limit the extension to 60 days was not adopted by the majority of
the Commission’s members. The framers evidently gave enough flexibility on the part of the Congress to
determine the duration of the extension. Plain textual reading of Section 18, Article VII and the records of the
deliberation of the Constitutional Commission buttress the view that as regards the frequency and
duration of the extension, the determinative factor is as long as “the invasion or rebellion persists
and public safety requires” such extension.
EIGHTH ISSUE: Whether or not the President and the Congress had sufficient factual basis to extend
Proclamation No. 216. YES.
Section 18, Article VII of the 1987 Constitution requires two factual bases for the extension of the
proclamation of martial law or of the suspension of the privilege of the writ of habeas corpus: (a) the invasion
or rebellion persists; and (b) public safety requires the extension.
Rebellion persists as to satisfy the first condition for the extension of martial law or of the
suspension of the privilege of the writ of habeas corpus.
The reasons cited by the President in his request for further extension indicate that the rebellion, which caused
him to issue Proclamation No. 216, continues to exist and its “remnants” have been resolute in establishing a
DAESH/ISIS territory in Mindanao, carrying on through the recruitment and training of new members, financial
and logistical build-up, consolidation of forces and continued attacks.
AFP General Guerrero also cited, among others, the continued armed resistance of the DAESH-inspired DIWM
and their allies. Moreover, The AFP’s data also showed that Foreign Terrorist Fighters (FTFs) are now acting as
instructors to the new members of the Dawlah Islamiyah.
Also, it does not necessarily follow that with the liberation of Marawi, the DAESH/ISIS-inspired rebellion no
longer exists. Secretary Lorenzana, during the Congress’ Joint Session on December 13, 2017, explained that
while the situation in Marawi has substantially changed, the rebellion has not ceased but simply moved to
other places in Mindanao.
Acts upon which extension was based posed danger to general public
The Court also ruled that the acts, circumstances and events upon which the extension was based posed a
significant danger, injury or harm to the general public.
The Court added that the information upon which the extension of martial law or of the suspension of the
privilege of the writ of habeas corpus shall be based principally emanate from and are in the possession of the
Executive Department. Thus, “the Court will have to rely on the fact-finding capabilities of the Executive
Department; in tum, the Executive Department will have to open its findings to the scrutiny of the Court.”
The Executive Department did open its findings to the Court when the· AFP gave its “briefing” or
“presentation” during the oral arguments, presenting data, which had been vetted by the NICA, “based on
intelligence reports gathered on the ground,” from personalities they were able to capture and residents in
affected areas, declassified official documents, and intelligence obtained by the PNP. According to the AFP, the
82
same presentation, save for updates, was given to the Congress. As it stands, the information thus presented
has not been challenged or questioned as regards its reliability.
The facts as provided by the Executive and considered by Congress amply establish that rebellion persists in
Mindanao and public safety is significantly endangered by it. The Court, thus, holds that there exists sufficient
factual basis for the further extension sought by the President and approved by the Congress in its Resolution
of Both Houses No. 4.
NINTH ISSUE: Whether or not there is necessity to impose tests on the choice and manner of the President’s
exercise of military powers. NO.
The Court reiterated their ruling in the earlier Lagman case that the determination of which among the
Constitutionally given military powers should be exercised in a given set of factual circumstances is a
prerogative of the President. The Court’s power of review, as provided under Section 18, Article VII do not
empower the Court to advise, nor dictate its own judgment upon the President, as to which and how these
military powers should be exercised.
 TENTH ISSUE: Whether or not the petitioners were able to comply with all the requisites for the issuance of
an injunctive writ. NO.
By jurisprudence, to be entitled to an injunctive writ, petitioners have the burden to establish the following
requisites: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation of that right;
(3) that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damage;
and (4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.
Petitioners anchored their prayer for the issuance of an injunctive writ on respondents’ gross transgressions of
the Constitution when they extended the martial law in Mindanao for one year. The Lagman petition likewise
alleges that petitioner Villarin, a Davao City resident, is personally prejudiced by the extension or martial law
in Mindanao “which would spawn violations of civil liberties of Mindanaoans like petitioner Villarin who is a
steadfast critic of the Duterte administration and of the brutalities committed by police and military forces”.
The alleged violations of the petitioners’ civil liberties do not justify the grant of injunctive relief.
The petitioners failed to prove that the alleged violations are directly attributable to the imposition
of martial law. They likewise failed to establish the nexus between the President’s exercise of his martial law
powers and their unfounded apprehension that the imposition “will target civilians who have no participation at
all in any armed uprising or struggle”. Incidentally, petitioners failed to state what the “civil liberties”
specifically refer to, and how the extension of martial law in Mindanao would threaten these “civil liberties” in
derogation of the rule of law. Evidently, petitioners’ right is doubtful or disputed, and can hardly be considered
a clear legal right, sufficient for the grant of an injunctive writ.
This Court cannot rely on speculations, conjectures or guesswork, but must depend upon competent proof and
on the basis of the best evidence obtainable under the circumstances. We emphasize that the grant or denial
of an injunctive writ cannot be properly resolved by suppositions, deductions, or even presumptions, with no
basis in evidence, for the truth must have to be determined by the procedural rules of admissibility and proof.
Incidentally, there is nothing in the Constitution, nor in any law which supports petitioners’ theory. Such
purported human right violations cannot be utilized as ground either to enjoin the President from
exercising the power to declare martial law, or the Congress in extending the same. To sanction
petitioners’ plea would result into judicial activism, thereby going against the principle of
separation of powers.
As discussed above, petitioners are not left without any recourse. Such transgressions can be addressed in a
separate and independent court action. Hence, petitioners can lodge a complaint-affidavit before the
prosecutor’s office or file a direct complaint before the appropriate courts against erring parties.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 162230               August 13, 2014
ISABELITA C. VINUY A, VICTORIA C. DELA PENA, HERMINIHILDA MANIMBO, LEONOR H. SUMA
WANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG,
ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M.
DELA PENA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P.
MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA,
MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PENA, MARIA DELA PAZ B.
CULALA,ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO,
EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A.
CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PENA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA 0. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILERMA S. BALINGIT,
TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA
T. SAGUM, CARIDAD L. TURLA, et al. in their capacityand as members of the "Malaya Lolas
Organizations," Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF
FOREIGN AFFAIRS DELIA DOMINGOALBERT, THE HONORABLE SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, Respondents.
RESOLUTION
BERSAMIN, J.:
Petitioners filed a Motion for Reconsideration1 and a Supplemental Motion for Reconsideration,2 praying that
the Court reverse its decision of April 28, 2010, and grant their petition for certiorari.
83
In their Motion for Reconsideration, petitioners argue that our constitutional and jurisprudential histories have
rejected the Court’s ruling that the foreign policy prerogatives ofthe Executive Branch are unlimited; that
under the relevant jurisprudence and constitutional provisions, such prerogatives are proscribed by
international human rights and international conventions of which the Philippines is a party; that the Court, in
holding that the Chief Executive has the prerogative whether to bring petitioners’ claims against Japan, has
read the foreign policy powers of the Office of the President in isolation from the rest of the constitutional
protections that expressly textualize international human rights; that the foreign policy prerogatives are
subject to obligations to promote international humanitarian law as incorporated intothe laws of the land
through the Incorporation Clause; that the Court must re-visit its decisions in Yamashita v. Styer3 and Kuroda
v. Jalandoni4 which have been noted for their prescient articulation of the import of laws of humanity; that in
said decision, the Court ruled that the State was bound to observe the laws of war and humanity; that in
Yamashita, the Court expressly recognized rape as an international crime under international humanitarian
law, and in Jalandoni, the Court declared that even if the Philippines had not acceded or signed the Hague
Convention on Rules and Regulations covering Land Warfare, the Rules and Regulations formed part of the law
of the nation by virtue of the Incorporation Clause; that such commitment to the laws ofwar and humanity has
been enshrined in Section 2, Article II of the 1987 Constitution, which provides "that the Philippines…adopts
the generally accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations."
The petitioners added that the statusand applicability of the generally accepted principles of international law
within the Philippine jurisdiction would be uncertain without the Incorporation Clause, and that the clause
implied that the general international law forms part of Philippine law only insofar as they are expressly
adopted; that in its rulings in The Holy See, v. Rosario, Jr.5 and U.S. v. Guinto6 the Court has said that
international law is deemed part of the Philippine law as a consequence of Statehood; that in Agustin v.
Edu,7 the Court has declared that a treaty, though not yet ratified by the Philippines, was part of the law of the
land through the Incorporation Clause; that by virtue of the Incorporation Clause, the Philippines is bound to
abide by the erga omnesobligations arising from the jus cogensnorms embodied in the laws of war and
humanity that include the principle of the imprescriptibility of war crimes; that the crimes committed against
petitioners are proscribed under international human rights law as there were undeniable violations of jus
cogensnorms; that the need to punish crimes against the laws of humanity has long become jus cogensnorms,
and that international legal obligations prevail over national legal norms; that the Court’s invocation of the
political doctrine in the instant case is misplaced; and that the Chief Executive has the constitutional duty to
afford redress and to give justice to the victims ofthe comfort women system in the Philippines.8
Petitioners further argue that the Court has confused diplomatic protection with the broader responsibility of
states to protect the human rights of their citizens, especially where the rights asserted are subject of erga
omnesobligations and pertain to jus cogensnorms; that the claims raised by petitioners are not simple private
claims that are the usual subject of diplomatic protection; that the crimes committed against petitioners are
shocking to the conscience of humanity; and that the atrocities committed by the Japanese soldiers against
petitionersare not subject to the statute of limitations under international law.9
Petitioners pray that the Court reconsider its April 28, 2010 decision, and declare: (1) that the rapes, sexual
slavery, torture and other forms of sexual violence committed against the Filipina comfort women are crimes
against humanity and war crimes under customary international law; (2) that the Philippines is not bound by
the Treaty of Peace with Japan, insofar as the waiver of the claims of the Filipina comfort women against Japan
is concerned; (3) that the Secretary of Foreign Affairs and the Executive Secretary committed grave abuse of
discretion in refusing to espouse the claims of Filipina comfort women; and (4) that petitioners are entitled to
the issuance of a writ of preliminary injunction against the respondents.
Petitioners also pray that the Court order the Secretary of Foreign Affairs and the Executive Secretary to
espouse the claims of Filipina comfort women for an official apology,legal compensation and other forms of
reparation from Japan.10
In their Supplemental Motion for Reconsideration, petitioners stress that it was highly improper for the April
28, 2010 decision to lift commentaries from at least three sources without proper attribution – an article
published in 2009 in the Yale Law Journal of International Law; a book published by the Cambridge University
Press in 2005; and an article published in 2006 in the Western ReserveJournal of International Law – and
make it appear that such commentaries supported its arguments for dismissing the petition, when in truth the
plagiarized sources even made a strong case in favour of petitioners’ claims.11
In their Comment,12 respondents disagree withpetitioners, maintaining that aside from the statements on
plagiarism, the arguments raised by petitioners merely rehashed those made in their June 7, 2005
Memorandum; that they already refuted such arguments in their Memorandumof June 6, 2005 that the Court
resolved through itsApril 28, 2010 decision, specifically as follows:
1. The contentions pertaining tothe alleged plagiarism were then already lodged withthe Committee
on Ethics and Ethical Standards of the Court; hence, the matter of alleged plagiarism should not be
discussed or resolved herein.13
2. A writ of certioraridid not lie in the absence of grave abuse of discretion amounting to lack or
excess of jurisdiction. Hence, in view of the failureof petitioners to show any arbitrary or despotic act
on the part of respondents,the relief of the writ of certiorariwas not warranted.14
3. Respondents hold that the Waiver Clause in the Treaty of Peace with Japan, being valid, bound the
Republic of the Philippines pursuant to the international law principle of pacta sunt servanda.The
validity of the Treaty of Peace was the result of the ratification by two mutually consenting parties.
Consequently, the obligations embodied in the Treaty of Peace must be carried out in accordance with
the common and real intention of the parties at the time the treaty was concluded.15
4. Respondents assert that individuals did not have direct international remedies against any State
that violated their human rights except where such remedies are provided by an international
agreement. Herein, neither of the Treaty of Peace and the Reparations Agreement,the relevant
agreements affecting herein petitioners, provided for the reparation of petitioners’ claims.
Respondents aver that the formal apology by the Government of Japan and the reparation the
Government of Japan has provided through the Asian Women’s Fund (AWF) are sufficient to
recompense petitioners on their claims, specifically:
a. About 700 million yen would be paid from the national treasury over the next 10 years as welfare
and medical services;
b. Instead of paying the money directly to the former comfort women, the services would be provided
through organizations delegated by governmental bodies in the recipient countries (i.e., the
Philippines, the Republic of Korea,and Taiwan); and
c. Compensation would consist of assistance for nursing services (like home helpers), housing,
environmental development, medical expenses, and medical goods.16
84
 Ruling 83. Officials of the Executive Department ignored their request and refused to file a claim against the
said Japanese officials and military officers;
The Court DENIESthe Motion for Reconsiderationand Supplemental Motion for Reconsideration for being devoid
of merit. 84. Undaunted, the Petitioners in turnapproached the Department of Foreign Affairs, Department of
Justice and Office of the of the Solicitor General to file their claim against the responsible Japanese
officials and military officers, but their efforts were similarly and carelessly disregarded;20
1. Petitioners did not show that their resort was timely under the Rules of Court.

The petition thus mentions the year 1998 only as the time when petitioners approached the Department
Petitioners did not show that their bringing ofthe special civil action for certiorariwas timely, i.e., within the 60-
ofJustice for assistance, but does not specifically state when they received the denial of their request for
day period provided in Section 4, Rule 65 of the Rules of Court, to wit:
assistance by the Executive Department of the Government. This alone warranted the outright dismissal of the
petition.
Section 4. When and where position filed. – The petition shall be filed not later than sixty (60) daysfrom notice
of judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such
Even assuming that petitioners received the notice of the denial of their request for assistance in 1998, their
motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
filing of the petition only on March 8, 2004 was still way beyond the 60-day period. Only the most compelling
reasons could justify the Court’s acts of disregarding and lifting the strictures of the rule on the period. As we
As the rule indicates, the 60-day period starts to run from the date petitioner receives the assailed judgment, pointed out inMTM Garment Mfg. Inc. v. Court of Appeals:21
final order or resolution, or the denial of the motion for reconsideration or new trial timely filed, whether such
motion is required or not. To establish the timeliness of the petition for certiorari, the date of receipt of the
All these do not mean, however, that procedural rules are to be ignored or disdained at will to suit the
assailed judgment, final order or resolution or the denial of the motion for reconsideration or new trial must be
convenience of a party. Procedural law has its own rationale in the orderly administration of justice, namely: to
stated in the petition;otherwise, the petition for certiorarimust be dismissed. The importance of the dates
ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness,
cannot be understated, for such dates determine the timeliness of the filing of the petition for certiorari. As the
caprice, despotism, or whimsicality in the settlement of disputes. Hence, it is a mistake to suppose that
Court has emphasized in Tambong v. R. Jorge Development Corporation:17
substantive law and procedural law are contradictory to each other, or as often suggested, that enforcement of
procedural rules should never be permitted if it would result in prejudice to the substantive rights of the
There are three essential dates that must be stated in a petition for certiorari brought under Rule 65. First, the litigants.
date when notice of the judgment or final order or resolution was received; second, when a motion for new
trial or reconsideration was filed; and third, when notice of the denial thereof was received. Failure of
As we have repeatedly stressed, the right to file a special civil action of certiorariis neither a natural right
petitioner to comply with this requirement shall be sufficient ground for the dismissal of the petition.
noran essential element of due process; a writ of certiorariis a prerogative writ, never demandable as a matter
Substantial compliance will not suffice in a matter involving strict observance with the Rules. (Emphasis
of right, and never issued except in the exercise of judicial discretion. Hence, he who seeks a writ of
supplied)
certiorarimust apply for it only in the manner and strictly in accordance with the provisions of the law and the
Rules.
The Court has further said in Santos v. Court of Appeals:18
Herein petitioners have not shown any compelling reason for us to relax the rule and the requirements under
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the purpose current jurisprudence. x x x. (Emphasis supplied)
of determining its timeliness. Such a petition is required to be filed not later than sixty (60) days from notice
of the judgment, order or Resolution sought to be assailed. Therefore, that the petition for certiorariwas filed
2. Petitioners did not show that the assailed act was either judicial or quasi-judicial on the part of respondents.
forty-one (41) days from receipt of the denial of the motion for reconsideration is hardly relevant. The Court of
Appeals was notin any position to determine when this period commenced to run and whether the motion for
reconsideration itself was filed on time since the material dates were not stated. It should not be assumed that Petitioners were required to show in their petition for certiorarithat the assailed act was either judicial or quasi-
in no event would the motion be filed later than fifteen (15) days. Technical rules of procedure are not judicial in character. Section 1, Rule 65 of the Rules of Courtrequires such showing, to wit:
designed to frustrate the ends of justice. These are provided to effect the proper and orderly disposition of
cases and thus effectively prevent the clogging of court dockets. Utter disregard of the Rules cannot justly be
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial
rationalized by harking on the policy ofliberal construction.19
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
The petition for certioraricontains the following averments, viz: 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.
82. Since 1998, petitioners and other victims of the "comfort women system," approached the
Executive Department through the Department of Justice in order to request for assistance to file a
claim against the Japanese officials and military officers who ordered the establishment of the The petition shall be accompanied by a certified true copy of the judgment, order, or resolution subject
"comfort women" stations in the Philippines; thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of
85
nonforum shopping as provided in the third paragraph of Section 3, Rule 46. However, petitioners did notmake
such a showing.
3. Petitioners were not entitled to the injunction.
The Court cannot grant petitioners’ prayer for the writ of preliminary mandatory injunction. Preliminary
injunction is merely a provisional remedy that is adjunct to the main case, and is subject to the latter’s
outcome. It is not a cause of action itself.22 It is provisional because it constitutes a temporary measure
availed of during the pendency of the action; and it is ancillary because it is a mere incident in and is
dependent upon the result of the main action.23 Following the dismissal of the petition for certiorari, there is no
more legal basis to issue the writ of injunction sought. As an auxiliary remedy, the writ of preliminary
mandatory injunction cannot be issued independently of the principal action.24
In any event, a mandatory injunction requires the performance of a particular act.1âwphi1 Hence, it is an
extreme remedy,25 to be granted only if the following requisites are attendant, namely:
(a) The applicant has a clear and unmistakable right, that is, a right in esse;
(b) There is a material and substantial invasion of such right; and
(c) There is an urgent need for the writ to prevent irreparable injury to the applicant; and no other
ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.26
In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58, Lucena City,  we expounded as
27
follows:
It is basic that the issuance of a writ of preliminary injunction is addressed to the sound discretion of the trial
court, conditioned on the existence of a clear and positive right of the applicant which should be protected. It
is an extraordinary, peremptory remedy available only on the grounds expressly provided by law, specifically
Section 3, Rule 58 of the Rules of Court. Moreover, extreme caution must be observed in the exercise of such
discretion. It should be granted only when the court is fully satisfied that the law permits it and the emergency
demands it. The very foundation of the jurisdiction to issue a writ of injunction rests in the existence of a
cause of action and in the probability of irreparable injury, inadequacy of pecuniary compensation, and the
prevention of multiplicity of suits. Where facts are not shown to bring the case within these conditions, the
relief of injunction should be refused.28
Here, the Constitution has entrusted to the Executive Department the conduct of foreign relations for the
Philippines. Whether or not to espouse petitioners' claim against the Government of Japan is left to the
exclusive determination and judgment of the Executive Department. The Court cannot interfere with or
question the wisdom of the conduct of foreign relations by the Executive Department. Accordingly, we cannot
direct the Executive Department, either by writ of certiorari or injunction, to conduct our foreign relations with
Japan in a certain manner.
WHEREFORE, the Court DENIES the Motion for Reconsideration and Supplemental Motion for Reconsideration
for their lack of merit.
SO ORDERED.
RENE A.V. SAGUISAG v. EXECUTIVE PAQUITO N. DEPARTMENT DEFENSE VOLTAIRE DEPARTMENT SECRETARY
OCHOA, GR No. 212426, 2016-01-12
Facts:
SERENO, C.J.:
The petitions[1] before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.). Petitioners
allege that respondents... committed grave abuse of discretion amounting to lack or excess of jurisdiction
when they entered into EDCA with the U.S.,[2] claiming that the instrument violated multiple constitutional
provisions.[3] In reply, respondents argue that... petitioners lack standing to bring the suit. To support the
legality of their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents.[4]
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN RELATIONS,
AND EDCA
The 1987 Constitution has "vested the executive power in the President of the Republic of the Philippines."[6]
While the vastness of the executive power that has been consolidated in the person of the President cannot be
expressed fully in one provision,... the Constitution has stated the prime duty of the government, of which the
President is the head:
The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or... civil service.
The duty to protect the territory and the... citizens of the Philippines, the power to... call upon the people to
defend the State,... and the President as Commander-in-Chief
To carry out this important duty, the President is equipped with authority over the Armed Forces of the
Philippines (AFP),[9] which is the protector of the people and the state. The AFP's role is to secure the
sovereignty of the State and the integrity of... the national territory.[10] In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote the
general welfare.[11] In recognition of these powers, Congress has... specified that the President must oversee,
ensure, and reinforce our defensive capabilities against external and internal threats[12] and, in the same
vein, ensure that the country is adequately prepared for all national and local emergencies arising from...
natural and man-made disasters.[
The power and duty to conduct... foreign relations
86
The President also carries the mandate of being the sole organ in the conduct of foreign relations.[15] Since
every state has the capacity to interact with and engage in relations with other sovereign states,[16] it is but
logical that... every state must vest in an agent the authority to represent its interests to those other
sovereign states.
The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive must give
paramount importance to the sovereignty of the nation, the integrity of its territory, its interest, and the right
of the sovereign Filipino people to... self-determination.[18] In specific provisions, the President's power is also
limited, or at least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII
on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into prior to the Constitution and on the presence of
foreign military troops, bases, or facilities.
The relationship between the... two major presidential functions... and the role of the Senate
Clearly, the power to defend the State and to act as its representative in the international sphere inheres in
the person of the President. This power, however, does not crystallize into absolute discretion to craft
whatever instrument the Chief Executive so desires. As... previously mentioned, the Senate has a role in
ensuring that treaties or international agreements the President enters into, as contemplated in Section 21 of
Article VII of the Constitution, obtain the approval of two-thirds of its members.
reviously, treaties under the 1973 Constitution required ratification by a majority of the Batasang Pambansa,
[19] except in instances wherein the President "may enter into international treaties or agreements as the
national welfare and interest may... require."[20] This left a large margin of discretion that the President could
use to bypass the Legislature altogether. This was a departure from the 1935 Constitution, which explicitly
gave the President the power to enter into treaties only with the... concurrence of two-thirds of all the
Members of the Senate.[21] The 1987 Constitution returned the Senate's power[22] and, with it, the
legislative's traditional role in foreign affairs.[23]
The responsibility of the President when it comes to treaties and international agreements under the present
Constitution is therefore shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA.
II. Historical Antecedents of EDCA
U.S. takeover of Spanish colonization... and its military bases, and the transition... to Philippine independence
Former legal regime on the... presence of U.S. armed... forces in the territory of an... independent Philippines
(1946-1991)
Current legal regime on the... presence of U.S. armed forces... in the country
The Enhanced Defense
Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to do so
was no longer necessary.[85] Accordingly,... in June 2014, the Department of Foreign Affairs (DFA) and the
U.S. Embassy exchanged diplomatic notes confirming the completion of all necessary internal requirements for
the agreement to enter into force in the two countries
Issues:
Whether the essential requisites for judicial review are present
Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and
treaties
Ruling:
Whether the essential... requisites for judicial... review have been satisfied
Guided by these pillars, it may invoke the power only when the following four stringent requirements are
satisfied: (a) there is an actual case or... controversy; (b) petitioners possess locus standi; (c) the question of
constitutionality is raised at the earliest opportunity; and (d) the issue of constitutionality is the lis mota of the
case.
Petitioners have shown the... presence of an actual case... or controversy.
The OSG maintains[107] that there is no actual case or controversy that exists, since the Senators have not
been deprived of the opportunity to invoke the privileges of the institution they are representing. It contends
that the nonparticipation of the
Senators in the present petitions only confirms that even they believe that EDCA is a binding executive
agreement that does not require their concurrence.
We find that the matter before us involves an actual case or controversy that is already ripe for adjudication.
The Executive Department has already sent an official confirmation to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been... complied with."[113] By this exchange of diplomatic
notes, the Executive Department effectively performed the last act required under Article XII(l) of EDCA before
the agreement entered into force. Section 25, Article XVIII of the Constitution, is clear... that the presence of
foreign military forces in the country shall only be allowed by virtue of a treaty concurred in by the Senate.
While petitioners Saguisag et. al,... do not have legal standing,... they nonetheless raise issues... involving
matters of... transcendental importance.
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a taxpayers'
suit contemplates a situation in which there is already an appropriation or a disbursement of public funds.
[128] A reading of Article X(l) of EDCA... would show that there has been neither an appropriation nor an
authorization of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of appropriated funds authorized for these
purposes. (Emphases supplied)
Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
87
Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and
treaties
The role of the President as the... executor of the law includes the... duty to defend the State, for... which
purpose he may use that... power in the conduct of foreign... relations
This divide continued throughout the different versions of the Philippine Constitution and specifically vested the
supreme executive power in the Governor-General of the Philippines,[145] a position inherited by the
President of the Philippines when the... country attained independence. One of the principal functions of the
supreme executive is the responsibility for the faithful execution of the laws as embodied by the oath of office.
This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a
separate grant of power.[148] Section 17, Article VII of the Constitution, expresses this duty in no uncertain
terms and includes it in the... provision regarding the President's power of control over the executive
department, viz:
The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.
SECTION 1. Power of Control. — The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
More important, this mandate is self-executory by virtue of its being inherently executive in nature.[160] As
Justice Antonio T. Carpio previously wrote,[161]
[i]f the rules are issued by the President in implementation or execution of self-executory constitutional
powers vested in the President, the rule-making power of the President is not a delegated legislative power.
The most important self-executory constitutional... power of the President is the President's constitutional duty
and mandate to "ensure that the laws be faithfully executed." The rule is that the President can execute the
law without any delegation of power from the legislature.
The import of this characteristic is that the manner of the President's execution of the law, even if not
expressly granted by the law, is justified by necessity and limited only by law, since the President must "take
necessary and proper steps to carry into execution the... law."[162] Justice George Malcolm states this
principle in a grand manner:[163]
The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should
have complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as
said by Hamilton, that "A feeble... executive implies a feeble execution of the government. A feeble execution
is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must
be in practice a bad government." The mistakes of State governments need not be repeated... here.
Every other consideration to one side, this remains certain — The Congress of the United States clearly
intended that the Governor-General's power should be commensurate with his responsibility. The Congress
never intended that the Governor-General should be saddled with the... responsibility of administering the
government and of executing the laws but shorn of the power to do so. The interests of the Philippines will be
best served by strict adherence to the basic principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary for
Philippine defense interests. It is no coincidence that the constitutional provision on the faithful execution
clause was followed by that on the President's... commander-in-chief powers,[164] which are specifically
granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty of defending the
country is unceasing, even in times when there is no state of lawlesss violence, invasion,... or rebellion. At
such times, the President has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive capabilities,
which could include forging alliances with states that hold a... common interest with the Philippines or bringing
an international suit against an offending state.
n the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he President is
the sole organ of the nation in its external relations, and its sole representative with foreign relations."
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary and Pimentel v.
Executive Secretary
The plain meaning of the Constitution... prohibits the entry of foreign military... bases, troops or facilities,
except by... way of a treaty concurred in by the
Senate — a clear limitation on the
President's dual role as defender... of the State and as sole authority in... foreign relations.
he initial limitation is found in Section
21 of the provisions on the Executive Department: "No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate." The specific limitation is
given by Section 25 of the Transitory Provisions, the... full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty... duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.
The President, however, may... enter into an executive agreement... on foreign military bases, troops,... or
facilities, if (a) it is not the... instrument that allows the presence... of foreign military bases, troops, or...
facilities; or (b) it merely aims to... implement an existing law or treaty.
In view of this provision, petitioners argue[170] that EDCA must be in the form of a "treaty" duly concurred in
by the Senate. They stress that the Constitution is unambigous in mandating the transmission to the Senate of
all international agreements... concluded after the expiration of the MBA in 1991 _ agreements that concern
the presence of foreign military bases, troops, or facilities in the country. Accordingly, petitioners maintain that
the Executive Department is not given the choice to conclude agreements like EDCA in... the form of an
executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against and 2
abstaining - says in SR 105[171] that EDCA must be submitted to the Senate in the form of a treaty for
concurrence by at least two-thirds of all... its members.
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The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to support
its position. Compared with the lone constitutional provision that the Office of the Solicitor General (OSG)
cites, which is Article XVIII, Section 4(2), which... includes the constitutionality of "executive agreement(s)"
among the cases subject to the Supreme Court's power of judicial review, the Constitution clearly requires
submission of EDCA to the Senate. Two specific provisions versus one general provision means that the
specific... provisions prevail. The term "executive agreement" is "a term wandering alone in the Constitution,
bereft of provenance and an unidentified constitutional mystery."
First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the
powers of the President. When the Court validated the concept of "executive agreement," it did so with full
knowledge of the Senate's role in concurring in treaties. It was... aware of the problematique of distinguishing
when an international agreement needed Senate concurrence for validity, and when it did not; and the Court
continued to validate the existence of "executive agreements" even after the 1987 Constitution.[172] This...
follows a long line of similar decisions upholding the power of the President to enter into an executive
agreement.
Second, the MDT has not been rendered obsolescent, considering that as late as 2009,[174] this Court
continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that it
applies only to a proposed agreement between our government and a foreign government, whereby military
bases, troops, or facilities of such foreign government... would be "allowed" or would "gain entry" Philippine
territory.
It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases,
troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the limitations
provided by the rest of the Constitution and
Philippine law, and not to the Section 25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines.
Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military troops
in the Philippines,[185] readily implying the legality of their initial entry into the country.
The President may generally enter... into executive agreements subject... to limitations defined by the
Constitution and may be in... furtherance of a treaty already... concurred in by the Senate.
As the sole organ of our foreign relations[200] and the constitutionally assigned chief architect of our foreign
policy,[201] the President is vested with the exclusive power to conduct and manage the country's interface
with other... states and governments. Being the principal representative of the Philippines, the Chief Executive
speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements;... promotes trade, investments, tourism
and other economic relations; and settles international disputes with other states
.[202]
As expressed below, executive agreements are among those official governmental acts that can... be the
subject of this Court's power of judicial review:
(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.
The inapplicability to executive agreements of the requirements under Section 21 was again recognized in
Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the present
Constitution, quoted Eastern Sea Trading in... reiterating that executive agreements are valid and binding
even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate
with which they are concluded. As culled from the afore-quoted deliberations of the Constitutional Commission,
past Supreme Court Decisions, and works of noted... scholars,[208] executive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded (1)
to adjust the details of a treaty;[209] (2) pursuant to or upon... confirmation by an act of the Legislature;
[210] or (3) in the exercise of the President's independent powers under the Constitution.[211] The raison
d'etre of executive agreements hinges on prior constitutional or... legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in international agreements.
International practice has accepted the use of various forms and designations of international agreements,
ranging from the traditional notion of a treaty - which connotes... a formal, solemn instrument - to
engagements concluded in modern, simplified forms that no longer necessitate ratification.[212] An
international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis
d'arbitrage,... convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.[213] Consequently, under international law,
the distinction between a treaty and an international... agreement or even an executive agreement is
irrelevant for purposes of determining international rights and obligations.
There remain two very important features that distinguish treaties from executive agreements and translate
them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function... of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these
rules.[... econd, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate[215] unlike executive agreements, which are solely
executive actions.[216] Because of legislative participation through the Senate, a treaty is regarded as being
on the same level as a statute.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power must
still be exercised within the context and the parameters... set by the Constitution, as well as by existing
domestic and international laws. There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that involve the following:
The policy of freedom from nuclear weapons within Philippine territory[221]
The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts,
which must be pursuant to the authority granted by Congress[222]
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The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the
Members of Congress[223]
The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously
concurred in by the Monetary Board[224]
The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the
form of a treaty duly concurred in by the Senate.[225]
For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form
of the government chosen be a treaty.
The President had the choice... to enter into EDCA by way of... an executive agreement or a... treaty.
No court can tell the President to desist from choosing an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely within Article VIII, Section 25.
Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider
discretion, subject only to the least amount of checks and restrictions under the Constitution.[229] The
rationale behind this power and discretion... was recognized by the Court in Vinuya v. Executive Secretary,
cited earlier.[230]
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its
Ratification, thus, correctly reflected the inherent powers of the President when it stated that the DFA "shall
determine whether an agreement is an executive agreement... or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases in which
the Constitution or a statute requires otherwise. Rather, in view of... the vast constitutional powers and
prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine
whether the international agreement is consistent with the applicable limitations.
Executive agreements may cover... the matter of foreign military... forces if it merely involves detail...
adjustments.
In testing the validity of the latter agreement, the Court precisely alluded to one of the inherent limitations of
an executive... agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former was
squarely inconsistent with a provision in the treaty requiring that the detention be
"by Philippine authorities."
Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in resolving the
present controversy:
Section 25, Article XVIII of the Constitution, contains stringent requirements that must be fulfilled by the
international agreement allowing the presence of foreign military bases, troops, or facilities in the Philippines:
(a) the agreement must be in the form of a treaty,... and (b) it must be duly concurred in by the Senate.
If the agreement is not covered by the above situation, then the President may choose the form of the
agreement (i.e., either an executive agreement or a treaty), provided that the agreement dealing with foreign
military bases, troops, or facilities is not the principal... agreement that first allows their entry or presence in
the Philippines.
The executive agreement must not go beyond the parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement; and must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or... treaty.
The executive agreement must be consistent with the Constitution, as well as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement, respondents carry
the burden of proving that it is a mere implementation of existing laws and treaties concurred in by the
Senate. EDCA must thus be carefully dissected to ascertain if... it remains within the legal parameters of a
valid executive agreement.
EDCA is consistent with... the content, purpose, and... framework of the MDT... and the VFA
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends the
VFA"[242] and follows with an enumeration of the differences between EDCA and the VFA. While these
arguments will be rebutted more fully further on, an... initial answer can already be given to each of the
concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows
temporary stationing on a rotational basis of U.S. military personnel and their contractors in physical locations
with permanent facilities and pre-positioned military... materiel.
This argument does not take into account that these permanent facilities, while built by U.S. forces, are to be
owned by the Philippines once constructed.[243] Even the VFA allowed construction for the benefit of U.S.
forces during their temporary... visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel, which
can include various types of warships, fighter planes, bombers, and vessels, as well as land and amphibious
vehicles and their corresponding ammunition.[244]
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought into
the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials, supplies, and other
property are imported into or acquired in the Philippines... by or on behalf of the U.S. Armed Forces; as are
vehicles, vessels, and aircraft operated by or for U.S. forces in connection with activities under the VFA. These
provisions likewise provide for the waiver of the specific duties, taxes, charges, and fees that correspond to
these... equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of
troops for training exercises, whereas EDCA allows the use of territory for launching military and paramilitary
operations conducted in other states.[245] The dissent of Justice Teresita J. Leonardo-De Castro also notes
that VFA was intended for non-combat activities only, whereas the entry and activities of U.S. forces into
Agreed Locations were borne of military necessity or had a martial character, and were... therefore not
contemplated by the VFA.[246]
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This Court's jurisprudence however established in no uncertain terms that combat-related activities, as
opposed to actual combat, were allowed under the MDT and VFA
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of the
VFA since EDCA's combat-related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA deal
with the presence of U.S. forces within the Philippines, but make no mention of being platforms for activity
beyond Philippine territory. While it may be that, as... applied, military operations under either the VFA or
EDCA would be carried out in the future, the scope of judicial review does not cover potential breaches of
discretion but only actual occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the
basis... of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or the
MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.[248]
As previously mentioned, these points shall be addressed fully and individually in the latter analysis of EDCA's
provisions. However, it must already be clarified that the terms and details used by an implementing
agreement need not be found in the mother treaty. They must be... sourced from the authority derived from
the treaty, but are not necessarily expressed word-for-word in the mother treaty. This concern shall be further
elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be
construed as a restriction on or modification of obligations found in existing statues, including the jurisdiction
of courts, local autonomy, and taxation. Implied in... this argument is that EDCA contains such restrictions or
modifications.
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure
Philippine jurisdiction in all instances contemplated by both agreements, with the exception of those outlined
by the VFA in Articles III-VI. In the VFA, taxes are clearly... waived whereas in EDCA, taxes are assumed by
the government as will be discussed later on.
"Authorized presence" under the
VFA versus "authorized activities"... under EDCA: (1) U.S. personnel... and (2) U.S. contractors
The OSG argues[250] that EDCA merely details existing policies under the MDT and the VFA. It explains that
EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and seeks to
enhance the defensive, strategic, and... technological capabilities of both parties pursuant to the objective of
the treaty to strengthen those capabilities to prevent or resist a possible armed attack. Respondent also points
out that EDCA simply implements Article I of the VFA, which already allows the entry of U.S.
troops and personnel into the country. Respondent stresses this Court's recognition in Lim v. Executive
Secretary that U.S. troops and personnel are authorized to conduct activities that promote the goal of
maintaining and developing their defense capab
Petitioners contest[251] the assertion that the provisions of EDCA merely implement the MDT. According to
them, the treaty does not specifically authorize the entry of U.S. troops in the country in order to maintain and
develop the individual and collective... capacities of both the Philippines and the U.S. to resist an armed
attack. They emphasize that the treaty was concluded at a time when there was as yet no specific
constitutional prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the specific
purpose of combined military exercises with their Filipino... counterparts. They stress that, in contrast, U.S.
troops are allowed under EDCA to perform activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of permanence in the
presence of U.S.
troops in the country, since the effectivity of EDCA is continuous until terminated. They proceed to argue that
while troops have a "rotational" presence, this scheme in fact fosters their permanent presenc
Admission of U.S. military and... civilian personnel into Philippine... territory is already allowed under... the
VFA... hree distinct classes of individuals who will be conducting different types of activities within the Agreed
Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors.
"United States personnel" means United States military and civilian personnel temporarily in the territory of
the Philippines in connection with activities approved by the Philippines, as those terms are defined in the
VFA.[252]
"United States forces" means the entity comprising United States personnel and all property, equipment, and
materiel of the United States Armed Forces present in the territory of the Philippines.[253]
"United States contractors" means companies and firms, and their employees, under contract or subcontract to
or on behalf of the United States Department of Defense. United States contractors are not included as part of
the definition of United States... personnel in this Agreement, including within the context of the VFA.[254]
United States forces may contract for any materiel, supplies, equipment, and services (including construction)
to be furnished or undertaken in the territory of the Philippines without restriction as to choice of contractor,
supplier, or person who provides... such materiel, supplies, equipment, or services. Such contracts shall be
solicited, awarded, and administered in accordance with the laws and regulations of the United States.
A thorough evaluation of how EDCA is phrased clarifies that the agreement does not deal with the entry into
the country of U.S. personnel and contractors per se. While Articles 1(1 )(b)[256] and II(4)[257] speak of
"the... right to access and use" the Agreed Locations, their wordings indicate the presumption that these
groups have already been allowed entry into Philippine territory, for which, unlike the VFA, EDCA has no
specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and civilian personnel
temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this
definition:
  The term "military personnel" refers to military members of the United States Army, Navy, Marine Corps, Air
Force, and Coast Guard.
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The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily resident in the
Philippines and who are employed by the United States armed forces or who are accompanying the United
States armed forces, such as employees... of the American Red Cross and the United Services Organization.
[258]
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry accommodations
to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United States personnel and their
departure from the Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon entering
and departing the Philippines.
3. The following documents only, which shall be required in respect of United States military personnel
who enter the Philippines; x x x x.
4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines.
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel to
be "temporarily in the Philippines," so long as their presence is "in connection with activities approved by the
Philippine Government."
Based on the above provisions, the admission and presence of U.S. military and civilian personnel in Philippine
territory are already allowed under the VFA, the treaty supposedly being implemented by EDCA. What EDCA
has effectively done, in fact, is merely provide the... mechanism to identify the locations in which U.S.
personnel may perform allowed activities pursuant to the VFA.
EDCA does not provide the... legal basis for admission of
U.S. contractors into Philippine... territory; their entry must be... sourced from extraneous
Philippine statutes and regulations... for the admission of alien employees... or business persons.
Authorized activities of U.S.
military and civilian personnel... within Philippine territory are... in furtherance of the MDT and the VFA
Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine Government." To
determine the parameters of these implementing arrangements and... activities, we referred to the content,
purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities,
so that they can maintain and develop their defense capabilities.
Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted on
Philippine or on U.S. soil. The article expressly provides that the term armed attack includes "an armed attack
on the metropolitan territory of... either of the Parties, or on the island territories under its jurisdiction in the
Pacific or on its armed forces, public vessels or aircraft in the Pacific." Surely, in maintaining and developing
our defense capabilities, an assessment or training will need to be... performed, separately and jointly by self-
help and mutual aid, in the territories of the contracting parties. It is reasonable to conclude that the
assessment of defense capabilities would entail understanding the terrain, wind flow patterns, and other
environmental factors... unique to the Philippines
The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the
Philippine Government" under Article I of the VFA was intended to be ambiguous in order to afford the parties
flexibility to adjust the details of the purpose of the... visit of U.S. personnel.
he joint report of the Senate committees on foreign relations and on national defense and security further
explains the wide range and variety of activities contemplated in the VFA, and how these activities shall be
identified:[277]
These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide
range and variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of
patrol and surveillance... to protect the country's maritime resources; sea-search and rescue operations to
assist ships in distress; and disaster-relief operations to aid the civilian victims of natural calamities, such as
earthquakes, typhoons and tidal waves.
What can be gleaned from the provisions of the VFA, the joint report of the Senate committees on foreign
relations and on national defense and security, and the ruling of this Court in Lim is that the "activities"
referred to in the treaty are meant to be specified and... identified in further agreements. EDCA is one such
agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel referred
to in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved by the
Philippines, as those terms are defined in the VFA"[278] and clarifies that these activities include those
conducted within the Agreed Locations:
Security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster
relief activities; and such other activities as may be agreed upon by the Parties[279]
Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of... forces and materiel; and such other
activities as the Parties may agree[280]
Exercise of operational control over the Agreed Locations for construction activities and other types of activity,
including alterations and improvements thereof[281]
Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational
control or defense, including the adoption of appropriate measures to protect U.S. forces and contractors[282]
Use of water, electricity, and other public utilities[283]
Operation of their own telecommunication systems, including the utilization of such means and services as are
required to ensure the full ability to operate telecommunication systems, as well as the use of the necessary
radio spectrum allocated for this purpose
After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find that
EDCA has remained within the parameters set in these two treaties. Just like the Terms of Reference
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mentioned in Lim, mere adjustments in detail to implement the MDT... and the VFA can be in the form of
executive agreements.
Petitioners assert[287] that the duration of the activities mentioned in EDCA is no longer consistent with the
temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA has an
initial term of 10 years, a term... automatically renewed unless the Philippines or the U.S. terminates the
agreement. According to petitioners, such length of time already has a badge of permanency.
However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity.
Although this term is automatically renewed, the process for terminating the agreement is unilateral and the
right to do so automatically accrues at the end of the 10... year period. Clearly, this method does not create a
permanent obligation.
Authorized activities performed by U.S. contractors within Philippine territory - who were legitimately
permitted to enter the country independent of EDCA - are subject to relevant Philippine statutes and
regulations and must be consistent with the MDT and the
VFA
Petitioners also raise[296] concerns about the U.S. government's purported practice of hiring private security
contractors in other countries. They claim that these contractors - one of which has already been operating in
Mindanao since 2004 - have been... implicated in incidents or scandals in other parts of the globe involving
rendition, torture and other human rights violations. They also assert that these contractors employ
paramilitary forces in other countries where they are operating
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities:
Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of... forces and materiel; and such other
activities as the Parties may agree[297]
Prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment, supplies and materiel[298]
Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations, and
policies[299]
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the Philippines
Petitioners Saguisag et al claim that EDCA permits the establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations."[312] Alluding to the definition of this term in Article 11(4) of
EDCA, they point out that these locations... are actually military bases, as the definition refers to facilities and
areas to which U.S. military forces have access for a variety of purposes. Petitioners claim that there are
several badges of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article
V(2) of EDCA alludes to a "return" of these areas once they are no longer needed by U.S. forces, indicating
that there would be some transfer of use. Second, Article IV(4) of EDCA talks about American forces'
unimpeded access to the Agreed Locations for all matters relating to... the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use public
utilities and to operate their own telecommunications system.
Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called
"badges of exclusivity," despite the presence of contrary provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is within the
context of a lengthy provision. The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-
relocatable structures and assemblies constructed, modified, or improved by the United States, once no longer
required by United States forces for activities... under this Agreement. The Parties or the Designated
Authorities shall consult regarding the terms of return of any Agreed Locations, including possible
compensation for improvements or construction
Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article IV(4)
states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment,... supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment, supplies and materiel."... e...
etitioners also point out[319] that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow similar
activities within the area; (b) provide for the same
"species of ownership" over facilities; and (c) grant operational control over the entire area. Finally, they
argue[320] that EDCA is in fact an implementation of the new defense policy of the U.S. According to them,
this policy was not what was originally... intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners[321] simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel provisions
of EDCA allow only operational... control over the Agreed Locations specifically for construction activities. They
do not allow the overarching power to operate, maintain, utilize, occupy, garrison, and control a base with full
discretion. EDCA in fact limits the rights of the U.S. in respect of every activity,... including construction, by
giving the MDB and the SEB the power to determine the details of all activities such as, but not limited to,
operation, maintenance, utility, occupancy, garrisoning, and control.
oreover, a direct comparison of the MBA and EDCA will result in several important distinctions that would allay
suspicion that EDCA is but a disguised version of the MBA.
There are substantial matters that the U.S. cannot do under EDCA, but which it was authorized to do under the
1947 MBA
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA for a
number of important reasons.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied by
American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any part of the
93
Philippines in which its forces or equipment may be... found. Below is a comparative table between the old
treaty and EDCA:
Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when it came to
deciding whether to expand or to increase the number of bases, as the Philippines may be compelled to
negotiate with the U.S. the moment the latter... requested an expansion of the existing bases or to acquire
additional bases. In EDCA, U.S. access is purely at the invitation of the Philippines.
Third, in EDCA, the Philippines is guaranteed access over the entire area of the Agreed Locations. On the other
hand, given that the U.S. had complete control over its military bases under the 1947 MBA, the treaty did not
provide for any express recognition of the... right of access of Philippine authorities. Without that provision and
in light of the retention of U.S. sovereignty over the old military bases, the U.S. could effectively prevent
Philippine authorities from entering those bases.
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the establishment, use,
operation, defense, and control of military bases, including the limits of territorial waters and air space
adjacent to or in the vicinity of those bases.
The only standard used in determining the extent of its control was military necessity. On the other hand,
there is no such grant of power or authority under EDCA. It merely allows the U.S. to exercise operational
control over the construction of Philippine-owned structures and... facilities:... ifth, the U.S. under the bases
agreement was given the authority to use Philippine territory for additional staging areas, bombing and
gunnery ranges. No such right is given under EDCA, as seen below:
Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the movement
and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have any right, power,
or authority to do so under EDCA.
Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including roads, ports,
and airfields). On the other hand, the old treaty gave the U.S. the right to improve and deepen the harbors,
channels, entrances, and anchorages; and to... construct or maintain necessary roads and bridges that would
afford it access to its military bases.
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities, services
and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and
streams in the Philippines in the... same manner that Philippine military forces enjoyed that right. No such
arrangement appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public land and
facilities when requested:
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain, and
employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the old treaty.
EDCA merely grants the U.S., through... bilateral security mechanisms, the authority to undertake
construction, alteration, or improvements on the Philippine-owned Agreed Locations.
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real property
belonging to any private person. The old military bases agreement gave this right to the U.S. as seen below:
Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals who are
under its employ, together with their families, in connection with the construction, maintenance, or operation
of the bases. EDCA strictly adheres to the... limits under the VFA.
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any person
within the Agreed Locations, unlike in the former military bases:
Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free of
customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the PX store has
become the cultural icon of U.S. military... presence in the country.
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987
Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.
The meaning of military... facilities and bases... y definition, Agreed Locations are... facilities and areas that
are provided by the Government of the Philippines through the AFP and that United States forces, United
States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this
Agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and may be further described in
implementing arrangements.[332]... d. Reasons for the constitutional... requirements and legal standards...
for constitutionally compatible... military bases and facilities
First standard: independence... from foreign control
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its
pertinent provisions, it is the Designated Authority of the Philippines that shall, when requested, assist in
facilitating transit or access to public land and... facilities.[371] The activities carried out within these locations
are subject to agreement as authorized by the Philippine government.[372] Granting the U.S. operational
control over these locations is likewise subject to EDCA's... security mechanisms, which are bilateral
procedures involving Philippine consent and cooperation.[373] Finally, the Philippine Designated Authority or a
duly designated representative is given access to the Agreed Locations.[374]... o our mind, these provisions
do not raise the spectre of U.S. control, which was so feared by the Constitutional Commission. In fact, they
seem to have been the product of deliberate negotiation from the point of view of the Philippine government,
which balanced constitutional... restrictions on foreign military bases and facilities against the security needs of
the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x to construct (including
dredging and filling), operate, maintain, utilize, occupy, garrison and control the... bases."[375] No similarly
explicit provision is present in EDCA.
U.S. operational control as the... exercise of authority over U.S.
personnel, and not over the
Agreed Locations
Clearly, traditional standards define "operational control" as personnel control. Philippine law, for instance,
deems operational control as one exercised by police officers and civilian authorities over their subordinates
and is distinct from the administrative control that... they also exercise over police subordinates.[385]
Similarly, a municipal mayor exercises operational control over the police within the municipal government,
[386] just as city mayor possesses the same power over the police within the... city government.[387]
94
Thus, the legal concept of operational control involves authority over personnel in a commander-subordinate
relationship and does not include control over the Agreed Locations in this particular case. Though not
necessarily stated in EDCA provisions, this interpretation is... readily implied by the reference to the taking of
"appropriate measures to protect United States forces and United States contractors."
Operational control vis-a-vis... effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the
Agreed Locations by the Philippine Designated Authority with the phrase "consistent with operational safety
and security requirements in accordance with agreed procedures... developed by the Parties" leads to the
conclusion that the U.S. exercises effective control over the Agreed Locations.[389] They claim that if the
Philippines exercises possession of and control over a given area, its representative should not have to be...
authorized by a special provision.[390]
Firstly, the phrase "consistent with operational safety and security requirements in accordance with agreed
procedures developed by the Parties" does not add any qualification beyond that which is already imposed by
existing treaties. To recall, EDCA is based upon prior... treaties, namely the VFA and the MDT.
Secondly, the full document cited by petitioners contradicts the equation of "operational control" with "effective
command and control," since it defines the terms quite differently
Operational control is defined thus:[399]... perational control is therefore the delegable aspect of combatant
command, while command and control is the overall power and responsibility exercised by the commander
with reference to a mission. Operational control is a narrower power and must be given, while command and...
control is plenary and vested in a commander. Operational control does not include the planning,
programming, budgeting, and execution process input; the assignment of subordinate commanders; the
building of relationships with Department of Defense agencies; or the directive... authority for logistics,
whereas these factors are included in the concept of command and control
Limited operational control... over the Agreed Locations... only for construction... activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational control
within the Agreed Locations during construction activities.[401] This exercise of operational control is premised
upon the approval by the MDB and... the SEB of the construction activity through consultation and mutual
agreement on the requirements and standards of the construction, alteration, or improvement.
Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control within an
Agreed Location cannot be equated with foreign military... control, which is so abhorred by the Constitution.
Second standard: Philippine... sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to establish a permanent military
presence or base in the territory of the Philippines." Further on, it likewise states the recognition that "all
United States access to and use of facilities and areas will... be at the invitation of the Philippines and with full
respect for the Philippine Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty
and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,[406] while jurisdiction is the conferment by law of power
and authority to apply the law.
Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws continue
to be in force within the bases.[412] The difference between then and now is that EDCA retains the primary
jurisdiction of the Philippines over the... security of the Agreed Locations, an important provision that gives it
actual control over those locations. Previously, it was the provost marshal of the U.S. who kept the peace and
enforced Philippine law in the bases. In this instance, Philippine forces act as peace officers,... in stark contrast
to the 1947 MBA provisions on jurisdiction.
Third standard: must respect... national security and territorial... integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair or
threaten the national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered the
prior notion of permanent military bases obsolete.
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for instance, the
re-establishment of the Subic military base or the Clark Air Field as U.S. military reservations. In this context,
therefore, this Court has interpreted the... restrictions on foreign bases, troops, or facilities as three
independent restrictions. In accord with this interpretation, each restriction must have its own qualification.
hile the source is not authoritative, petitioners make the point that the Agreed Locations, by granting access
and use to U.S. forces and contractors, are
U.S. bases under a different name.[416] More important, they claim that the Agreed Locations invite instances
of attack on the Philippines from enemies of the U.S. [417]
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics and
policy. At the very least, we can say that under international law, EDCA does not provide a legal basis for a
justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply because of the
presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall refrain in
their international relations from the threat or use of force... against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."[418]
Moreover, even if the lawfulness of the attack were not in question, international humanitarian law standards
prevent participants in an armed conflict from targeting non-participants.
Concerns on national security problems that arise from foreign military equipment being present in the
Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the presence of U.S.
military equipment in the country. Article VII of the
VFA already authorizes the U.S. to import into or acquire in the Philippines "equipment, materials, supplies,
and other property" that will be used "in connection with activities" contemplated therein. The same section
also recognizes that "[t]itle to such property shall remain"... with the US and that they have the discretion to
"remove such property from the Philippines at any time."
95
 JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF
PEOPLE’S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the
latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L.
Republic of the Philippines BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
SUPREME COURT SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND
Baguio City ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN)
EN BANC CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF
FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION
G.R. No. 191002               April 20, 2010 OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN
ARTURO M. DE CASTRO, Petitioner, F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE
vs. PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents. TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA;
LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL, JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
G.R. No. 191342
JAIME N. SORIANO, Petitioner,
vs. ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING
JUDICIAL AND BAR COUNCIL (JBC), Respondent. (IBP Governor-Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x JUDICIAL AND BAR COUNCIL (JBC), Respondent.

G.R. No. 191057 x - - - - - - - - - - - - - - - - - - - - - - -x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, G.R. No. 191420

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent. PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

A.M. No. 10-2-5-SC RESOLUTION

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO BERSAMIN, J.:

THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
On March 17, 2010, the Court promulgated its decision, holding:
x - - - - - - - - - - - - - - - - - - - - - - -x
WHEREFORE, the Court:
G.R. No. 191149

96
 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and
the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit;
and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be
created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief
Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the
Judiciary and submit to the President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No. 191342),
and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the Philippines-
Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang
Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers Organization of the Philippines
(WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et
al.), filed their respective motions for reconsideration. Also filing a motion for reconsideration was Senator
Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven
order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to
designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment
and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief
Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for
him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial
appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created
exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an
executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to
vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court
has raised the Constitution to the level of a venerated text whose intent can only be divined by its
framers as to be outside the realm of understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal
composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates the basic principle that the Court
should not formulate a rule of constitutional law broader than what is required by the precise facts of
the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to
apply it. The provision expressly and clearly provides a general limitation on the appointing power of
the President in prohibiting the appointment of any person to any position in the Government without
any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight
appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one
over the other, for the Court’s duty is to apply the safeguards as they are, not as the Court likes them
to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting
the Constitution.
97
6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents 1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.
on statutory construction holding that such headings carried very little weight.
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court
7. The Constitution has provided a general rule on midnight appointments, and the only exception is and to other appointments to the Judiciary.
that on temporary appointments to executive positions.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article
8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the VII against midnight appointments in the Judiciary.
candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a
view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17,
Corvera
2010. The Constitution grants the Court only the power of supervision over the JBC; hence, the Court
cannot tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and
justiciable case assailing any specific action or inaction of the JBC. 1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on midnight
appointments is based on an interpretation beyond the plain and unequivocal language of the
Constitution.
9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.

2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and
10. The constitutional ban on appointments being already in effect, the Court’s directing the JBC to
Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have
comply with the decision constitutes a culpable violation of the Constitution and the commission of an
obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there
election offense.
is any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent
political partisanship in all branches of the Government, should have controlled.
11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously
formulated by the Court en banc.
3. A plain reading is preferred to a contorted and strained interpretation based on
compartmentalization and physical arrangement, especially considering that the Constitution must be
12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent interpreted as a whole.
is indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.
4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong should yield to the plain and unequivocal language of the Constitution.
the outgoing President’s powers by means of proxies. The attempt of the incumbent President to
appoint the next Chief Justice is undeniably intended to perpetuate her power beyond her term of
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with
office.
the Constitution.

IBP-Davao del Sur, et al.

BAYAN, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the
present a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering
Valenzuela pronouncement.
that the office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the President.
2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its
2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of
phrase "other officers whose appointments are vested in him in this Constitution" is enough proof that
Justice Regalado.
the limitation on the appointing power of the President extends to appointments to the Judiciary.
Thus, Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in
the Executive and Judicial Branches of the Government. 3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has
violated the principle of ut magis valeat quam pereat (which mandates that the Constitution should be
interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give
3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief
effect to all). There is no conflict between the provisions; they complement each other.
Justice in all cases.

Lim

98
4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship carry little
weight in statutory construction. The clear and plain language of Section 15, Article VII precludes
interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and
interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual
vacancy in the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary
runs in conflict with long standing principles and doctrines of statutory construction. The provision
admits only one exception, temporary appointments in the Executive Department. Thus, the Court
should not distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on
midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the
opinion of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill
any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next
President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within
which to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than
enough opportunity to examine the nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The
directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election
offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en
banc, even when it acts as the sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief
Justice to the President on or before May 17, 2010, and to continue its proceedings for the nomination
of the candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not
provided by law or the Constitution; exercised control instead of mere supervision over the JBC; and
lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948
already provides that the power and duties of the office devolve on the most senior Associate Justice
in case of a vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent
records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17,
2010 at the latest, because no specific law requires the JBC to submit the list of nominees even
before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the
temporary appointment to an executive position. The limitation is in keeping with the clear intent of
the framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to
make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments
makes the appointee beholden to the outgoing Chief Executive, and compromises the independence
of the Chief Justice by having the outgoing President be continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the principle of
stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is
prohibited from making within the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight appointments extends to
judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must
first act not in accord with prescribed rules before the act can be redone to conform to the prescribed
rules.
99
 3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not
present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the
general intent of the Constitution as a limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the citizenry from an ever
expanding grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally repugnant to
republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution
without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the position of
Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on
midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as other
related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not
yet decided at the time the petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not
submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the
President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis.
The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate
and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG and
the JBC were the only ones the Court has required to do so. He states that the motions for reconsideration
were directed at the administrative matter he initiated and which the Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and the
separate opinion.
2. The administrative matter he brought invoked the Court’s power of supervision over the JBC as
provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Court’s
adjudicatory power under Section 1, Article VIII. In the former, the requisites for judicial review are
not required, which was why Valenzuela was docketed as an administrative matter. Considering that
the JBC itself has yet to take a position on when to submit the short list to the proper appointing
authority, it has effectively solicited the exercise by the Court of its power of supervision over the
JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the
Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section
15, Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued,
not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist that
the Court has erred in disobeying or abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision
in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in
lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by
a court of competent authority. The decisions relied upon as precedents are commonly those of appellate
courts, because the decisions of the trial courts may be appealed to higher courts and for that reason are
probably not the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not
100
only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them.3 In a
hierarchical judicial system like ours, the decisions of the higher courts bind the lower courts, but the courts of
co-ordinate authority do not bind each other. The one highest court does not bind itself, being invested with
the innate authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court,
especially with a new membership, is not obliged to follow blindly a particular decision that it determines, after
re-examination, to call for a rectification.5 The adherence to precedents is strict and rigid in a common-law
setting like the United Kingdom, where judges make law as binding as an Act of Parliament.6 But ours is not a
common-law system; hence, judicial precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent in a subsequent case only when its
reasoning and justification are relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the precedent is for the sake of convenience and
stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that
its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority of the
Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered en banc or
in division.7
Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on presidential appointments during the period stated in Section
15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional
Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13,
Article VII, a provision on nepotism. The records of the Constitutional Commission show that Commissioner
Hilario G. Davide, Jr. had proposed to include judges and justices related to the President within the fourth civil
degree of consanguinity or affinity among the persons whom the President might not appoint during his or her
tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in
Section 13, Article VII "(t)o avoid any further complication,"8 such that the final version of the second
paragraph of Section 13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not
during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many principles of
statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance
on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the
ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba
legis. That is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for doing
so would generally constitute an encroachment upon the field of the Constitutional Commission. Rather,
Section 4(1) and Section 9 should be left as they are, given that their meaning is clear and explicit, and no
words can be interpolated in them.9 Interpolation of words is unnecessary, because the law is more than likely
to fail to express the legislative intent with the interpolation. In other words, the addition of new words may
alter the thought intended to be conveyed. And, even where the meaning of the law is clear and sensible,
either with or without the omitted word or words, interpolation is improper, because the primary source of the
legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit
in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in
Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals
that the prohibition against the President or Acting President making appointments within two months before
the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to
the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the
purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all
the Members of the present Court were appointed by the incumbent President, a majority of them are now
granting to her the authority to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to
the contrary proceeds from malice and condescension. Neither the outgoing President nor the present
Members of the Court had arranged the current situation to happen and to evolve as it has. None of the
Members of the Court could have prevented the Members composing the Court when she assumed the
Presidency about a decade ago from retiring during her prolonged term and tenure, for their retirements were
mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up the vacancies created
by such inexorable retirements within 90 days from their occurrence. Her official duty she must comply with.
So must we ours who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
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SO ORDERED.
NERI V. SENATE COMMITTEE
G.R. NO. 180643
MARCH 25, 2008
Petitioner Romulo Neri, then Director General of the National Economic and Development Authority (NEDA),
was invited by the respondent Senate Committees to attend their joint investigation on the alleged anomalies
in the National Broadband Network (NBN) Project. This project was contracted by the Philippine Government
with the Chinese firm Zhong Xing Telecommunications Equipment (ZTE), which involved the amount of
US$329,481,290. When he testified before the Senate Committees, he disclosed that then Commission on
Elections Chairman Benjamin Abalos, brokering for ZTE, offered him P200 million in exchange for his approval
of the NBN Project. He further narrated that he informed President Gloria Macapagal-Arroyo about
the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on
what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege.” In
particular, he refused to answer the questions on 1.) whether or not the President followed up the NBN
Project, 2.) whether or not she directed him to prioritize it, and 3.) whether or not she directed him to approve
it.
Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear
and testify on 20 November 2007. However, Executive Secretary Eduardo Ermita sent a letter dated 15
November to the Committees requesting them to dispense with Neri’s testimony on the ground of executive
privilege. Ermita invoked the privilege on the ground that “the information sought to be disclosed might impair
our diplomatic as well as economic relations with the People’s Republic of China,” and given the confidential
nature in which these information were conveyed to the President, Neri “cannot provide the Committee any
further details of these conversations, without disclosing the very thing the privilege is designed to protect.”
Thus, on 20 November, Neri did not appear before the respondent Committees.
On 22 November, respondents issued a Show Cause Letter to Neri requiring him to show cause why he should
not be cited for contempt for his failure to attend the scheduled hearing on 20 November. On 29 November,
Neri replied to the Show Cause Letter and explained that he did not intend to snub the Senate hearing, and
requested that if there be new matters that were not yet taken up during his first appearance, he be informed
in advance so he can prepare himself. He added that his non-appearance was upon the order of the President,
and that his conversation with her dealt with delicate and sensitive national security and diplomatic matters
relating to the impact of the bribery scandal involving high government officials and the possible loss of
confidence of foreign investors and lenders in the Philippines. Respondents found the explanation
unsatisfactory, and later on issued an Order citing Neri in contempt and consequently ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until he appears and gives his testimony.
Neri filed the petition asking the Court to nullify both the Show Cause Letter and the Contempt Order for
having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and stressed
that his refusal to answer the three questions was anchored on a valid claim to executive privilege in
accordance with the ruling in the landmark case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006). For its
part, the Senate Committees argued that they did not exceed their authority in issuing the assailed orders
because there is no valid justification for Neri’s claim to executive privilege. In addition, they claimed that the
refusal of petitioner to answer the three questions violates the people’s right to public information, and that
the executive is using the concept of executive privilege as a means to conceal the criminal act of bribery in
the highest levels of government.
Issue:
Whether or not the three questions that petitioner Neri refused to answer were covered by executive privilege,
making the arrest order issued by the respondent Senate Committees void.
Discussion:
Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three elements needed to be
complied with in order for the claim to executive privilege to be valid.
These are: 1.) the protected communication must relate to a quintessential and non-delegable presidential
power; 2.) it must be authored, solicited, and received by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in “operational proximity” with the President; and, 3.) it
may be overcome by a showing of adequate need, such that the information sought “likely contains important
evidence,” and by the unavailability of the information elsewhere by an appropriate investigating authority.
In the present case, Executive Secretary Ermita claimed executive privilege on the argument that the
communications elicited by the three questions “fall under conversation and correspondence between the
President and public officials” necessary in “her executive and policy decision-making process,” and that “the
information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China.” It is clear then that the basis of the claim is a matter related to the quintessential and non-
delegable presidential power of diplomacy or foreign relations.
As to the second element, the communications were received by a close advisor of the President. Under the
“operational proximity” test, petitioner Neri can be considered a close advisor, being a member of the
President’s Cabinet.
And as to the third element, there is no adequate showing of a compelling need that would justify the
limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating
authority. Presidential communications are presumptive privilege and that the presumption can be overcome
only by mere showing of public need by the branch seeking access to such conversations. In the present case,
respondent Committees failed to show a compelling or critical need for the answers to the three questions in
the enactment of any law under Sec. 21, Art. VI. Instead, the questions veer more towards the exercise of the
legislative oversight function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function
of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation.”
Neri’s refusal to answer based on the claim of executive privilege does not violate the people’s right to
information on matters of public concern simply because Sec. 7, Art. III of the Constitution itself provides that
this right is “subject to such limitations as may be provided by law.”
Held:
The divided Supreme Court (voting 9-6) was convinced that the three questions are covered by presidential
communications privilege, and that this privilege has been validly claimed by the executive department,
102
enough to shield petitioner Neri from any arrest order the Senate may issue against him for not answering
such questions.
The petition was granted. The subject Order dated January 30, 2008, citing petitioner in contempt of the
Senate Committee and directing his arrest and detention was nullified.
ROMULO L. NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY
G.R. No. 180643, September 4, 2008
MOTION FOR RECONSIDERATION
FACTS: In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. On
September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11)
hours on matters concerning the National Broadband Project (the “NBN Project”), a project awarded by the
Department of Transportation and Communications (“DOTC”) to Zhong Xing Telecommunications Equipment
(“ZTE”). Petitioner disclosed that then Commission on Elections (“COMELEC”) Chairman Benjamin Abalos
offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed
President Gloria Macapagal Arroyo (“President Arroyo”) of the bribery attempt and that she instructed him not
to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to
the NBN Project, petitioner refused to answer, invoking “executive privilege.” To be specific, petitioner refused
to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not
she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.
Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to
appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with petitioner’s testimony on the
ground of executive privilege.
The senate thereafter issued a show cause order, unsatisfied with the reply, therefore, issued an Order citing
Neri in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such
time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. Denied. Petition for certiorari
and Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) granted by
the SC court.
CORE ISSUE:
(1) whether or not there is a recognized presumptive presidential communications privilege in our legal
system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3)
questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.
HELD:
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. There, the
Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v. PEA.15 The Court
articulated in these cases that, “”the right to information does not extend to matters recognized as ‘privileged
information’ under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings.”
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege
on a specific matter involving an executive agreement between the Philippines and China, which was the
subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’
investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.
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
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
A. The power to enter into an executive agreement is a “quintessential and non-delegable presidential power.”
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
“quintessential and non-delegable presidential power,” because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to
Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less executive.
The power to enter into an executive agreement is in essence an executive power. This authority of the
President to enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence. Now, the fact that the President has to secure the prior concurrence of
the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or
guaranteeing foreign loans, does not diminish the executive nature of the power. In the same way that certain
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legislative acts require action from the President for their validity does not render such acts less legislative in
nature.
B. The “doctrine of operational proximity” was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the “doctrine of operational
proximity” for the reason that “it maybe misconstrued to expand the scope of the presidential communications
privilege to communications between those who are ‘operationally proximate’ to the President but who may
have “no direct communications with her.”
It must be stressed that the doctrine of “operational proximity” was laid down in In re: Sealed Case27precisely
to limit the scope of the presidential communications privilege. In the case at bar, the danger of expanding the
privilege “to a large swath of the executive branch” (a fear apparently entertained by respondents) is absent
because the official involved here is a member of the Cabinet, thus, properly within the term “advisor” of the
President; in fact, her alter ego and a member of her official family.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing
respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987
Constitutional provisions on government transparency, accountability and disclosure of information.
The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications
privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the
claim. Even in Senate v. Ermita, it was held that 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. This is a matter of respect for a coordinate and co-equal department.
Privileged character of diplomatic negotiations
In PMPF v. Manglapus, .” The Resolution went on to state, thus:The nature of diplomacy requires centralization
of authority and expedition of decision which are inherent in executive action. Another essential characteristic
of diplomacy is its confidential nature.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the
people to information and public accountability and transparency, the Court finds nothing in these arguments
to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. In the case at bar, this Court, in upholding executive
privilege with respect to three (3) specific questions, did not in any way curb the public’s right to information
or diminish the importance of public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There
is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project.
They could continue the investigation and even call petitioner Neri to testify again.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption
of privilege can only be overturned by a showing of compelling needfor disclosure of the information covered
by executive privilege.
In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3)
questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three
(3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents’ assertions.
The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according to said respondents, would “aid”
them in crafting legislation. Clearly, the need for hard facts in crafting legislation cannot be equated with the
compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can
come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the
Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate
could still come up with legislations even without petitioner answering the three (3) questions. In other words,
the information being elicited is not so critical after all.
Oversight Function of the Congress
Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry
is legislative in nature. This is because curbing graft and corruption is merely an oversight function of
Congress.44 And if this is the primary objective of respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not
oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function
of Congress, respondent Committees’ investigation cannot transgress bounds set by the Constitution.
Office of the Ombudsman: The Office of the Ombudsman is the body properly equipped by the Constitution
and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable
therefor.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the
“Rules”) are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the
internal processes of Congress, as a co-equal branch of government, however, when a constitutional
requirement exists, the Court has the duty to look into Congress’ compliance therewith. We cannot turn a blind
eye to possible violations of the Constitution simply out of courtesy.
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Section 21, Article VI of the Constitution states that:
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 person appearing in or
affected by such inquiries shall be respected. (Emphasis supplied)

We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish.
This is especially true here where what is involved is the contempt power. It must be stressed that the Rules
are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in
the proper observance of the Rules.
Congress as a “continuing body”

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarification. Certainly, there
is no debate that the Senate as an institution is “continuing”, as it is not dissolved as an entity with each
national election or change in the composition of its members. However, in the conduct of its day-to-day
business the Senate of each Congress acts separately and independently of the Senate of the Congress before
it.
Motion for Reconsideration Denied.

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