Poli Rev 3

No. L-75697. June 18, 1987.
VALENTIN TIO doing business under the name and style of OMI ENTERPRISES, petitioner, vs. VIDEOGRAM
REGULATORY BOARD, MINISTER OF FINANCE, METRO MANILA COMMISSION, CITY MAYOR and
CITY TREASURER OF MANILA, respondents.
Constitutional Law; Constitutional requirement that “every bill shall embrace only one subject which shall be expressed
in the title thereof’ is sufficiently complied with if the title be comprehensive enough to include the general purpose it seeks to
achieve and if all the parts of the statute are related and germane to the subject matter expressed in the title or as long as they
are not inconsistent with or foreign to the general subject and title.—The Constitutional requirement that “every bill shall
embrace only one subject which shall be expressed in the title thereof” is sufficiently complied with if the title be comprehensive
enough to include the general purpose which a statute seeks to achieve. It is not necessary that the title express each and every
end that the statute wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to
the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title. An
act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may
be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such
subject by providing for the method and means of carrying out the general object.” The rule also is that the constitutional
requirement as to the title of a bill should not be so narrowly construed as to cripple or impede the power of legislation. It should
be given a practical rather than technical construction.
Same; Same; Section 10 PD 1987 otherwise known as Videogram Regulatory Board is not a Rider.—Section 10. Tax on
Sale, Lease or Disposition of Videograms. Notwithstanding any provision of law to the contrary, the province shall collect a tax
of thirty percent (30%) of the purchase price or rental rate, as the case may be, for every sale, lease or disposition of a videogram
containing a reproduction of any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected
shall accrue to the province, and the other fifty percent (50%) shall accrue to the municipality where the tax is collected;
PROVIDED, That in Metropolitan Manila, the tax shall be shared equally by the City/Municipality and the Metropolitan Manila
Commission. x x x x” The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of,
the general object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory Board as
expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and title. As a tool for
regulation it is simply one of the regulatory and control mechanisms scattered throughout the DECREE. The express purpose of
the DECREE to include taxation of the video industry in order to regulate and rationalize the heretofore uncontrolled distribution
of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker in presenting the
measure. The title of the DECREE, which is the creation of the Videogram Regulatory Board, is comprehensive enough to
include the purposes expressed in its Preamble and reasonably covers all its provisions. It is unnecessary to express all those
objectives in the title or that the latter be an index to the body of the DECREE,
Same; Same; Same; Tax imposed under the Decree is not harsh; oppressive, confiscatory and in restraint of trade but
regulatory and a revenue measure; The levy is for a public purpose.—Petitioner also submits that the thirty percent (30%) tax
imposed is harsh and oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question that a tax does not
cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The power to impose
taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any
restrictions whatever, except such as rest in the discretion of the authority which exercises it. In imposing a tax, the legislature
acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The tax imposed by
the DECREE is not only a regulatory but also a revenue measure prompted by the realization that earnings of videogram
establishments of around P600 million per annum have not been subjected to tax, thereby depriving the Government of an
additional source of revenue. It is an end-user tax, imposed on retailers for every videogram they make available for public
viewing, It is similar to the 30% amusement tax imposed or borne by the movie industry which the theater-owners pay to the
government, but which is passed on to the entire cost of the admission ticket, thus shifting the tax burden on the buying or the
viewing public. It is a tax that is imposed uniformly on all videogram operators. The levy of the 30% tax is for a public purpose.
It was imposed primarily to answer the need for regulating the video industry, particularly because of the rampant film piracy, the
flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes. And while it was also an
objective of the DECREE to protect the movie industry, the tax remains a valid imposition.
Same; Same; Same; Same; PD 1987 not an undue delegation of legislative power.—Neither can it be successfully argued
that the DECREE contains an undue delegation of legislative power. The grant in Section 11 of the DECREE of authority to the
BOARD to “solicit the direct assistance of other agencies and Units of the government and deputize, for a fixed and limited
period, the heads or personnel of such agencies and units to perform enforcement functions for the Board” is not a delegation of
the power to legislate but merely a conferment of authority or discretion as to its execution, enforcement, and implementation.
“The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first
cannot be done; to the latter, no valid objection can be made.” Besides, in the very language of the decree, the authority of the
BOARD to solicit such assistance is for a “fixed and limited period” with the deputized agencies concerned being “subject to the
direction and control of the BOARD.” That the grant of such authority might be the source of graft and corruption would not
stigmatize the DECREE as unconstitutional. Should the eventuality occur, the aggrieved parties will not be without adequate
remedy in law.
PETITION to review the decision of the Metro Manila Commission.
The facts are stated in the opinion of the Court.
Nelson Y. Ng for petitioner.
The City Legal Officer for respondents City Mayor and City Treasurer.
MELENCIO-HERRERA, J.:
This petition was filed on September 1, 1986 by petitioner on his own behalf and purportedly on behalf of other
videogram operators adversely affected. It assails the constitutionality of Presidential Decree No. 1987 entitled “An
Act Creating the Videogram Regulatory Board” with broad powers to regulate and supervise the videogram industry
(hereinafter briefly referred to as the BOARD). The Decree was promulgated on October 5, 1985 and took effect on
April 10, 1986, fifteen (15) days after completion of its publication in the Official Gazette.
On November 5, 1985, a month after the promulgation of the abovementioned decree, Presidential Decree No.
1994 amended the National Internal Revenue Code providing, inter alia:
“SEC. 134. Video Tapes.—There shall be collected on each processed video-tape cassette, ready for
playback, regardless of length, an annual tax of five pesos; Provided, That locally manufactured or
imported blank video tapes shall be subject to sales tax.”
On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie Producers, Importers and
Distributors Association of the Philippines, and Philippine Motion Pictures Producers Association, hereinafter
collectively referred to as the Intervenors, were permitted by the Court to intervene in the case, over petitioner’s
opposition, upon the allegations that intervention was necessary for the complete protection of their rights and that
their “survival and very existence is threatened by the unregulated proliferation of film piracy.” The Intervenors
were thereafter allowed to file their Comment in Intervention.
The rationale behind the enactment of the DECREE, is set out in its preambular clauses as follows:
1. “1.WHEREAS, the proliferation and unregulated circulation of videograms including, among others,
videotapes, discs, cassettes or any technical improvement or variation thereof, have greatly prejudiced the
operations of movie houses and theaters, and have caused a sharp decline in theatrical attendance by at
least forty percent (40%) and a tremendous drop in the collection of sales, contractor’s specific,
amusement and other taxes, thereby resulting in substantial losses estimated at P450 Million annually in
government revenues;
2. “2.WHEREAS, videogram(s) establishments collectively earn around P600 Million per annum from
rentals, sales and disposition of videograms, and such earnings have not been subjected to tax, thereby
depriving the Government of approximately P180 Million in taxes each year;
3. “3.WHEREAS, the unregulated activities of videogram establishments have also affected the viability of
the movie industry, particularly the more than 1,200 movie houses and theaters throughout the country,
and occasioned industry-wide displacement and unemployment due to the shutdown of numerous movie
houses and theaters;
4. “4.“WHEREAS, in order to ensure national economic recovery, it is imperative for the Government to
create an environment conducive to growth and development of all business industries, including the
movie industry which has an accumulated investment of about P3 Billion;
5. “5.WHEREAS, proper taxation of the activities of videogram establishments will not only alleviate the dire
financial condition of the movie industry upon which more than 75,000 families and 500,000 workers
depend for their livelihood, but also provide an additional source of revenue for the Government, and at
the same time rationalize the heretofore uncontrolled distribution of videograms;
6. “6.WHEREAS, the rampant and unregulated showing of obscene videogram features constitutes a clear and
present danger to the moral and spiritual well-being of the youth, and impairs the mandate of the
Constitution for the State to support the rearing of the youth for civic efficiency and the development of
moral character and promote their physical, intellectual, and social well-being;
7. “7.WHEREAS, civic-minded citizens and groups have called for remedial measures to curb these blatant
malpractices which have flaunted our censorship and copyright laws;
1. “8.WHEREAS, in the face of these grave emergencies corroding the moral values of the people and
betraying the national economic recovery program, bold emergency measures must be adopted with
dispatch; x x x” (Numbering of paragraphs supplied).
Petitioner’s attack on the constitutionality of the DECREE rests on the following grounds:
1. “1.Section 10 thereof, which imposes a tax of 30% on the gross receipts payable to the local government is
a RIDER and the same is not germane to the subject matter thereof;
2. “2.The tax imposed is harsh, confiscatory, oppressive and/or in unlawful restraint of trade in violation of
the due process clause of the Constitution;
3. “3.There is no factual nor legal basis for the exercise by the President of the vast powers conferred upon
him by Amendment No. 6;
4. “4.There is undue delegation of power and authority;
5. “5.The Decree is an ex-post facto law; and
6. “6.There is over regulation of the video industry as if it were a nuisance, which it is not.”
We shall consider the foregoing objections in seriatim.

1. The Constitutional requirement that “every bill shall embrace only one subject which shall be expressed in the
title thereof” is sufficiently complied with if the title be comprehensive enough to include the general purpose which
1
a statute seeks to achieve. It is not necessary that the title express each and every end that the statute wishes to
accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject
matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and
title. An act having a single general subject, indicated in the title, may contain any number of provisions, no matter
2
how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the general
object.” The rule also is that the constitutional requirement as to the title of a bill should not be so narrowly
3
construed as to cripple or impede the power of legislation. It should be given a practical rather than technical
4
construction. 5
Tested by the foregoing criteria, petitioner’s contention that the tax provision of the DECREE is a rider is
without merit. That section reads, inter alia:
“Section 10. Tax on Sale, Lease or Disposition of Videograms.—Notwithstanding any provision of law to
the contrary, the province shall collect a tax of thirty percent (30%) of the purchase price or rental rate, as
the case may be, for every sale, lease or disposition of a videogram containing a reproduction of any
motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected shall
accrue to the province, and the other fifty percent (50%) shall acrrue to the municipality where the tax is
collected; PROVIDED, That in Metropolitan Manila, the tax shall be shared equally by the
City/Municipality and the Metropolitan Manila Commission.
x x x
The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of, the general
object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory
Board as expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and title.
As a tool for regulation it is simply one of the regulatory and control mechanisms scattered throughout the
6
DECREE. The express purpose of the DECREE to include taxation of the video industry in order to regulate and
rationalize the heretofore uncontrolled distribution of videograms is evident from Preambles 2 and 5, supra. Those
preambles explain the motives of the lawmaker in presenting the measure. The title of the DECREE, which is the
creation of the Videogram Regulatory Board, is comprehensive enough to include the purposes expressed in its
Preamble and reasonably covers all its provisions. It is unnecessary to express all those objectives in the title or that
the latter be an index to the body of the DECREE. 7
2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive, confiscatory, and in
restraint of trade. However, it is beyond serious question that a tax does not cease to be valid merely because it
regulates, discourages, or even definitely deters the activities taxed. The power to impose taxes is one so unlimited
8
in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions
whatever, except such as rest in the discretion of the authority which exercises it. In imposing a tax, the legislature
9
acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation.10
The tax imposed by the DECREE is not only a regulatory but also a revenue measure prompted by the
realization that earnings of videogram establishments of around P600 million per annum have not been subjected to
tax, thereby depriving the Government of an additional source of revenue. It is an end-user tax, imposed on retailers
for every videogram they make available for public viewing. It is similar to the 30% amusement tax imposed or
borne by the movie industry which the theater-owners pay to the government, but which is passed on to the entire
cost of the admission ticket, thus shifting the tax burden on the buying or the viewing public. It is a tax that is
imposed uniformly on all videogram operators.
The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the need for regulating the
video industry, particularly because of the rampant film piracy, the flagrant violation of intellectual property rights,
and the proliferation of pornographic video tapes. And while it was also an objective of the DECREE to protect the
movie industry, the tax remains a valid imposition.
“The public purpose of a tax may legally exist even if the motive which impelled the legislature to impose
the tax was to favor one industry over another. 11
“It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been
repeatedly held that “inequities which result from a singling out of one particular class for taxation or
exemption infringe no constitutional limitation.” Taxation has been made the implement of the state’s
12
police power. 13
At bottom, the rate of tax is a matter better addressed to the taxing legislature.
3. Petitioner argues that there was no legal nor factual basis for the promulgation of the DECREE by the former
President under Amendment No. 6 of the 1973 Constitution providing that “whenever in the judgment of the
President xxx, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in
his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders,
or letters of instructions, which shall form part of the law of the land.”
In refutation, the Intervenors and the Solicitor General’s Office aver that the 8th “whereas” clause sufficiently
summarizes the justification in that grave emergencies corroding the moral values of the people and betraying the
national economic recovery program necessitated bold emergency measures to be adopted with dispatch. Whatever
the reasons “in the judgment” of the then President, considering that the issue of the validity of the exercise of
legislative power under the said Amendment still pends resolution in several other cases, we reserve resolution of
the question raised at the proper time.
4. Neither can it be successfully argued that the DECREE contains an undue delegation of legislative power. The
grant in Section 11 of the DECREE of authority to the BOARD to “solicit the direct assistance of other agencies and
units of the government and deputize, for a fixed and limited period, the heads or personnel of such agencies and
units to perform enforcement functions for the Board” is not a delegation of the power to legislate but merely a
conferment of authority or discretion as to its execution, enforcement, and implementation. “The true distinction is
between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and
conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first
cannot be done; to the latter, no valid objection can be made." Besides, in the very language of the decree, the
14
authority of the BOARD to solicit such assistance is for a “fixed and limited period” with the deputized agencies
concerned being “subject to the direction and control of the BOARD.” That the grant of such authority might be the
source of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the eventuality occur,
the aggrieved parties will not be without adequate remedy in law.
5. The DECREE is not violative of the ex post factoprinciple. An ex post facto law is, among other categories,
one which “alters the legal rules of evidence. and authorizes conviction upon less or different testimony than the law
required at the time of the commission of the offense.” It is petitioner’s position that Section 15 of the DECREE in
providing that:
“AIl videogram establishments in the Philippines are hereby given a period of forty-five (45) days after
the effectivity of this Decree within which to register with and secure a permit from the BOARD to
engage in the videogram business and to register with the BOARD all their inventories of videograms,
including videotapes, discs, cassettes or other technical improvements or variations thereof, before they
could be sold, leased, or otherwise disposed of. Thereafter any videogram found in the possession of any
person engaged in the videogram business without the required proof of registration by the BOARD, shall
be prima facieevidence of violation of the Decree, whether the possession of such videogram be for
private showing and/or public exhibition.”
raises immediately a prima facie evidence of violation of the DECREE when the required proof of registration of
any videogram cannot be presented and thus partakes of the nature of an ex post facto law.
The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of Appeals, et al.
15
“x x x it is now well settled that ‘there is no constitutional objection to the passage of a law providing that
the presumption of innocence may be overcome by a contrary presumption founded upon the experience
of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of
innocence’ (People vs. Mingoa, 92 Phil. 856 [1953] at 858–59, citing 1 COOLEY, A TREATISE ON
THE CONSTITUTIONAL LIMITATIONS, 639–641). And the ‘legislature may enact that when certain
facts have been proved that they shall be prima facie evidence of the existence of the guilt of the accused
and shift the burden of proof provided there be a rational connection between the facts proved and the
ultimate facts presumed so that the inference of the one from proof of the others is not unreasonable and
arbitrary because of lack of connection between the two in common experience’.” 16
Applied to the challenged provision, there is no question that there is a rational connection between the fact proved,
which is non-registration, and the ultimate fact presumed which is violation of the DECREE, besides the fact that
the prima facie presumption of violation of the DECREE attaches only after a forty-five-day period counted from its
effectivity and is, therefore, neither retrospective in character.
6. We do not share petitioner’s fears that the video industry is being over-regulated and being eased out of
existence as if it were a nuisance. Being a relatively new industry, the need for its regulation was apparent. While
the underlying objective of the DECREE is to protect the moribund movie industry, there is no question that public
welfare is at bottom of its enactment, considering “the unfair competition posed by rampant film piracy; the erosion
of the moral fiber of the viewing public brought about by the availability of unclassified and unreviewed video tapes
containing pornographic films and films with brutally violent sequences; and losses in government revenues due to
the drop in theatrical attendance, not to mention the f act that the activities of video establishments are virtually
untaxed since mere payment of Mayor’s permit and municipal license fees are required to engage in business.” 17
The enactment of the Decree since April 10, 1986 has not brought about the “demise” of the video industry. On
the contrary, video establishments are seen to have proliferated in many places notwithstanding the 30% tax
imposed.
In the last analysis. what petitioner basically questions is the necessity, wisdom and expediency of the DECREE.
These considerations, however, are primarily and exclusively a matter of legislative concern.
“Only congressional power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main
wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere.
There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of
a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as
there ought to be, the last offender should be courts of justice, to which rightly litigants submit their
controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provision likewise insofar as there may be objections, even if valid and
cogent, on its wisdom cannot be sustained.” 18
In fine, petitioner has not overcome the presumption of validity which attaches to a challenged statute. We find no
clear violation of the Constitution which would justify us in pronouncing Presidential Decree No. 1987 as
unconstitutional and void.
WHEREFORE, the instant Petition is hereby dismissed. No costs.
SO ORDERED.
63 SUPREME COURT REPORTS

0 ANNOTATED
Tolentino vs. Secretary of Finance
G.R. No. 115455. August 25, 1994. *
ARTURO M. TOLENTINO, petitioner, vs. THE SECRETARY OF FINANCE and THE COMMISSIONER OF

INTERNAL REVENUE, respondents.
G.R. No. 115525. August 25, 1994. *
JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE

OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and
their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.
G.R. No. 115543. August 25, 1994. *
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners, vs. THE SECRETARY OF THE
DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND
BUREAU OF CUSTOMS, respondents.
_______________
EN BANC.
*
631
VOL. 235, AUGUST 25, 1994 631
G.R. No. 115544. August 25, 1994.*
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING
CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA,
petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO,
in his capacity as Secretary of Finance, respondents.
G.R. No. 115754. August 25, 1994.*
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner, vs. THE
COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781. August 25, 1994.*
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG,
JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN,
FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S.
DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(“MABINI”), FREEDOM FROM DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY, INC., and
WIGBERTO TAÑADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE
COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852. August 25, 1994.*
PHILIPPINE AIRLINES, INC. petitioner, vs. THE SECRETARY OF FINANCE, and COMMISSIONER OF
INTERNAL REVENUE, respondents.
632
2 ANNOTATED
G.R. No. 115873. August 25, 1994.*
COOPERATIVE UNION OF THE PHILIPPINES, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as
the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive
Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115931. August 25, 1994.*
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE
BOOKSELLERS, petitioners, vs. HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON.
LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO, JR., in
his capacity as the Commissioner of Customs, respondents.
Constitutional Law; Statutes; Taxation; Origin of revenue bills; A bill originating in the House of Representatives may
undergo such extensive changes in the Senate that the result may be a rewriting of the whole; As a result of the Senate action, a
distinct bill may be produced and to insist that a revenue statute must substantially be the same as the House bill would be to
deny the Senate’s power not only to “concur with amendments” but also to “propose amendments.”—Petitioners’ contention is
that Republic Act No. 7716 did not “originate exclusively” in the House of Representatives as required by Art. VI, § 24 of the
Constitution, because it is in fact the result of the consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this
connection, petitioners point out that although Art. VI, § 24 was adopted from the American Federal Constitution, it is notable in
two respects: the verb “shall originate” is qualified in the Philippine Constitution by the word “exclusively” and the phrase “as on
other bills” in the American version is omitted. This means, according to them, that to be considered as having originated in the
House, Republic Act No. 7716 must retain the essence of H. No. 11197. This argument will not bear analysis. To begin with, it is
not the law—but the revenue bill—which is required by the Constitution to “originate exclusively” in the House of
Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in
the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be
discussed later. At this point, what is important to
633
VOL. 235, AUGUST 25, 1994 6
33
note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute—and not only
the bill which initiated the legislative process culminating in the enactment of the law—must substantially be the same as the
House bill would be to deny the Senate’s power not only to “concur with amendments” but also to “propose amendments.” It
would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the
Senate.
Same; Same; Same; Same; Legislative power is vested in the Congress of the Philippines, consisting of “a Senate and a
House of Representatives,” not in any particular chamber.—The contention that the constitutional design is to limit the Senate’s
power in respect of revenue bills in order to compensate for the grant to the Senate of the treaty-ratifying power and thereby
equalize its powers and those of the House overlooks the fact that the powers being compared are different. We are dealing here
with the legislative power which under the Constitution is vested not in any particular chamber but in the Congress of the
Philippines, consisting of “a Senate and a House of Represen-tatives.” The exercise of the treaty-ratifying power is not the
exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for
comparing the legislative powers of the House and of the Senate on the basis of the possession of such nonlegislative power by
the Senate. The possession of a similar power by the U.S. Senate has never been thought of as giving it more legislative powers
than the House of Representatives.
Same; Same; Same; Same; There is really no difference between the Senate preserving the House Bill up to the enacting
clause and then writing its own version following the enacting clause and, on the other hand, separately presenting a bill of its
own on the same subject matter.—It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of
another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to “take [H. No. 11197] into
consideration” in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the
enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an
amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either
case the result are two bills on the same subject.
Same; Same; Same; Same; The Constitution simply means that the initiative for filing revenue, tariff, or tax bills, bills
authorizing an increase of the public debt, private bills and bills of local application
634
34 ANNOTATED
must come from the House of Representatives and that it does not prohibit the filing in the Senate of a substitute bill in
anticipation of its receipt of the bill from the House.—Indeed, what the Constitution simply means is that the initiative for filing
revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be
expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are
expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of
such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill
from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill.
Same; Same; Presidential certification on urgency of a bill dispenses with the requirement not only of printing but also
that of reading the bill on separate days.—The presidential certification dispensed with the requirement not only of printing but
also that of reading the bill on separate days. The phrase “except when the President certifies to the necessity of its immediate
enactment, etc.” in Art. VI, § 26(2) qualifies the two stated conditions before a bill can become a law: (i) the bill has passed three
readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved. In
other words, the “unless” clause must be read in relation to the “except” clause, because the two are really coordinate clauses of
the same sentence. To construe the “except” clause as simply dispensing with the second requirement in the “unless” clause
(i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate
the very premise of the “except” clause: the necessity of securing the immediate enactment of a bill which is certified in order to
meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time
saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away
with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment
of a law in the face of an emergency requiring the calling of a special election for President and Vice-President. Under the
Constitution such a law is required to be made within seven days of the convening of Congress in emergency session.
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Same; Same; Judicial Review; While the sufficiency of the factual basis of the suspension of the writ of habeas corpus or
declaration of martial law is subject to judicial review because basic rights of individuals may be at hazard, the factual basis of
presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly
considered by members of Congress, certainly should elicit a different standard of review.—It is nonetheless urged that the
certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a
“growing budget deficit” not being an unusual condition in this country. It is noteworthy that no member of the Senate saw fit to
controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings
on March 24, 1994, the Senate accepted the President’s certification. Should such certifi-cation be now reviewed by this Court,
especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same
day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation? The sufficiency of
the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, § 18, or the existence
of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, § 23(2), is subject to
judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills,
which involves doing away with procedural requirements designed to insure that bills are duly considered by members of
Congress, certainly should elicit a different standard of review.
Same; Same; Bicameral Conference Committee; A third version of the bill may result from the conference committee,
which is considered an “amendment in the nature of a substitute,” the only requirement being that the third version be germane
to the subject of the House and Senate bills.—As to the possibility of an entirely new bill emerging out of a Conference
Committee, it has been explained: Under congressional rules of procedure, conference committees are not expected to make any
material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting
new provisions. But this is a difficult provision to enforce. Note the problem when one house amends a proposal originating in
either house by striking out everything following the enacting clause and substituting provisions which make it an entirely new
bill. The versions are now altogether different, permitting a conference committee to draft essentially a new bill . . . . The result is
a third version, which is considered an “amendment in the nature of a substitute,” the only requirement for
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36 ANNOTATED
which being that the third version be germane to the subject of the House and Senate bills.
Same; Same; Same; The report of the conference committee needs the approval of both houses of Congress to become
valid as an act of the legislative department.—Indeed, this Court recently held that it is within the power of a conference
committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. If the
committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several
provisions, collectively considered as an “amendment in the nature of a substitute,” so long as such amendment is germane to the
subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of Congress to
become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third
legislative chamber is thus without any basis.
Same; Same; Same; Separation of Powers; It is common place in Congress that conference committee reports include
new matters which, though germane, have not been committed to the committee, and if a change is desired in the practice, it must
be sought in Congress since this question is not covered by any constitutional provision but is only an internal rule of each
house.—To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule
XLIV, § 112 of the Rules of the Senate is cited to the effect that “If there is no Rule applicable to a specific case the precedents of
the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the Rules contained in
Jefferson’s Manual.” The following is then quoted from the Jefferson’s Manual: The managers of a conference must confine
themselves to the differences committed to them . . . and may not include subjects not within disagreements, even though
germane to a question in issue. Note that, according to Rule XLIX, § 112, in case there is no specific rule applicable, resort must
be to the legislative practice. The Jefferson’s Manual is resorted to only as supplement. It is common place in Congress that
conference committee reports include new matters which, though germane, have not been committed to the committee. This
practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases.
Whatever, then, may be provided in the Jefferson’s Manual must be considered to have been modified by the legislative practice.
If a change is desired in the practice it must be sought in Congress since this question is not covered by any constitutional
provision but is only an internal rule of each house. Thus, Art. VI, §
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16(3) of the Constitution provides that “Each House may determine the rules of its proceedings . . . .”
Same; Same; Same; Same; Bill-Drafting; The use of brackets and capital letters to indicate changes is a standard
practice in bill-drafting; The Supreme Court’s concern is with the procedural requirements of the Constitution for the enactment
of laws, not the enforcement of internal Rules of Congress since “parliamentary rules are merely procedural and with their
observance the courts have no concern.”—This observation applies to the other contention that the Rules of the two chambers
were likewise disregarded in the preparation of the Conference Committee Report because the Report did not contain a “detailed
and sufficiently explicit statement of changes in, or amendments to, the subject measure.” The Report used brackets and capital
letters to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks and symbols
the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper forum for the enforcement
of these internal Rules. To the contrary, as we have already ruled, “parliamentary rules are merely procedural and with their
observance the courts have no concern.” Our concern is with the procedural requirements of the Constitution for the enactment of
laws. As far as these requirements are concerned, we are satisfied that they have been faithfully observed in these cases.
Same; Same; Same; Same; The three-reading requirement refers only to bills introduced for the first time in either house
of Congress, not to the conference committee report.—Art. VI, § 26(2) must, therefore, be construed as referring only to bills
introduced for the first time in either house of Congress, not to the conference committee report. For if the purpose of requiring
three readings is to give members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the
House after three readings; that in the Senate it was considered on first reading and then referred to a committee of that body; that
although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by
“taking into consideration” the House bill; that for its part the Conference Committee consolidated the two bills and prepared a
compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate, presumably
after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully
informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress
is, in our view, without warrant in fact and in law.
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38 ANNOTATED
Same; Same; Same; Same; Enrolled Bill Doctrine; An enrolled copy of a bill is conclusive not only of its provisions but
also of its due enactment.—Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in
its favor. Our cases manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but
also of its due enactment. Not even claims that a proposed constitutional amendment was invalid because the requisite votes for
its approval had not been obtained or that certain provisions of a statute had been “smuggled” in the printing of the bill have
moved or persuaded us to look behind the proceedings of a coequal branch of the government. There is no reason now to depart
from this rule.
Same; Same; Same; Same; Same; While the “enrolled bill” rule is not absolute, the Supreme Court should decline the
invitation to go behind the enrolled copy of the bill where allegations that the constitutional procedures for the passage of bills
have not been observed have no more basis than another allegation that the Conference Committee “surreptitiously” inserted
provisions into a bill which it had prepared.—No claim is here made that the “enrolled bill” rule is absolute. In fact in one case
we “went behind” an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been
approved by the Senate in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a
mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider. But where allegations that
the constitutional procedures for the passage of bills have not been observed have no more basis than another allegation that the
Conference Committee “surreptitiously” inserted provisions into a bill which it had prepared, we should decline the invitation to
go behind the enrolled copy of the bill. To disregard the “enrolled bill” rule in such cases would be to disregard the respect due
the other two departments of our government.
Same; Same; Titles of Bills; The constitutional requirement that every bill passed by Congress shall embrace only one
subject which shall be expressed in its title is intended to prevent surprise upon the members of Congress and to inform the
people of pending legislation so that, if they wish to, they can be heard regarding it.—The question is whether this amendment of
§ 103 of the NIRC is fairly embraced in the title of Republic Act No. 7716, although no mention is made therein of P.D. No.
1590 as among those which the statute amends. We think it is, since the title states that the purpose of the statute is to expand the
VAT system, and one way of doing this is to widen its base by withdrawing some of the exemptions granted before. To insist that
P.D. No. 1590 be
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mentioned in the title of the law, in addition to § 103 of the NIRC, in which it is specifically referred to, would be to insist
that the title of a bill should be a complete index of its content. The constitutional requirement that every bill passed by Congress
shall embrace only one subject which shall be expressed in its title is intended to prevent surprise upon the members of Congress
and to inform the people of pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar,
petitioner did not know before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for
the same reason other statutes, although published, pass unnoticed until some event somehow calls attention to their existence.
Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL’s own franchise under P.D. No. 1590,
and yet no mention is made of its tax exemption.
Same; Same; Same; The trend is to construe the constitutional requirement in such a manner that courts do not unduly
interfere with the enactment of necessary legislation.—The trend in our cases is to construe the constitutional requirement in such
a manner that courts do not unduly interfere with the enactment of necessary legislation and to consider it sufficient if the title
expresses the general subject of the statute and all its provisions are germane to the general subject thus expressed.
Same; Same; Public Utilities; Franchises; The grant of a franchise for the operation of a public utility is subject to
amendment, alteration or repeal by Congress when the common good so requires. —In contrast, in the case at bar, Republic Act
No. 7716 expressly amends PAL’s franchise (P.D. No. 1590) by specifically excepting from the grant of exemptions from the
VAT PAL’s exemption under P.D. No. 1590. This is within the power of Congress to do under Art. XII, § 11 of the Constitution,
which provides that the grant of a franchise for the operation of a public utility is subject to amendment, alteration or repeal by
Congress when the common good so requires.
Same; Taxation; Expanded Value Added Tax Law; Bill of Rights; Freedom of Expression; Even with due recognition of
its high estate and its importance in a democratic society, the press is not immune from general regulation by the State. —To be
sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI’s claim is simply
that, as appliedto newspapers, the law abridges press freedom. Even with due recognition of its high estate and its importance in
a democratic society, however, the press is not immune from general regulation by the State.
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40 ANNOTATED
Same; Same; Same; Same; Same; Equal Protection Clause; The VAT law would perhaps be open to the charge of
discriminatory treatment if the only privilege withdrawn had been that granted to the press.—What it contends is that by
withdrawing the exemption previously granted to print media transactions involving printing, publication, importation or sale of
newspapers, Republic Act No. 7716 has singled out the press for discriminatory treatment and that within the class of mass media
the law discriminates against print media by giving broadcast media favored treatment. We have carefully examined this
argument, but we are unable to find a differential treatment of the press by the law, much less any censorial motivation for its
enactment. If the press is now required to pay a value-added tax on its transactions, it is not because it is being singled out, much
less targeted, for special treatment but only because of the removal of the exemption previously granted to it by law. The
withdrawal of exemption is all that is involved in these cases. Other transactions, likewise previously granted exemption, have
been delisted as part of the scheme to expand the base and the scope of the VAT system. The law would perhaps be open to the
charge of discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is not the case.
Same; Same; Same; Same; Same; Same; There is a reasonable basis for the classification and different treatment
between print media and broadcast media.—Nor is impermissible motive shown by the fact that print media and broadcast media
are treated differently. The press is taxed on its transactions involving printing and publication, which are different from the
transactions of broadcast media. There is thus a reasonable basis for the classification.
Same; Same; Same; Same; Freedom of Religion; The Free Exercise of Religion Clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious materials by a religious organization.—What has been said above
also disposes of the allegations of the PBS that the removal of the exemption of printing, publication or importation of books and
religious articles, as well as their printing and publication, likewise violates freedom of thought and of conscience. For as the
U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, the Free Exercise of Religion
Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious
organization.
Same; Same; Same; Same; The VAT registration fee is a mere administrative fee, one not imposed on the exercise of a
privilege, much less a constitutional right.—In this case, the fee in § 107, although a
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41
fixed amount (P1,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost
of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax
credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales
made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege,
much less a constitutional right.
Same; Same; Same; Same; Due Process; Hierarchy of Values;When freedom of the mind is imperiled by law, it is
freedom that commands a momentum of respect and when property is imperiled, it is the lawmakers’ judgment that commands
respect.—There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press
and religion. The possible “chilling effect” which it may have on the essential freedom of the mind and conscience and the need
to assure that the channels of communication are open and operating importunately demand the exercise of this Court’s power of
review. There is, however, no justification for passing upon the claims that the law also violates the rule that taxation must be
progressive and that it denies petitioners’ right to due process and the equal protection of the laws. The reason for this different
treatment has been cogently stated by an eminent authority on constitutional law thus: “[W]hen freedom of the mind is imperiled
by law, it is freedom that commands a momentum of respect; when property is imperiled it is the lawmakers’ judgment that
commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but
obviously it does set up a hierarchy of values within the due process clause.”
Same; Same; Same; The legislature is not required to adhere to a policy of “all or none” in choosing the subject of
taxation.—On the other hand, the CUP’s contention that Congress’ withdrawal of exemption of producers cooperatives,
marketing cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives, not only goes against
the constitutional policy to promote cooperatives as instruments of social justice (Art. XII, § 15) but also denies such
cooperatives the equal protection of the law is actually a policy argument. The legislature is not required to adhere to a policy of
“all or none” in choosing the subject of taxation.
Same; Same; Same; Regressivity is not a negative standard for courts to enforce since what Congress is required by the
Constitution to do is to “evolve a progressive system of taxation.”—Indeed, regressivity
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42 ANNOTATED
is not a negative standard for courts to enforce. What Congress is required by the Constitution to do is to “evolve a
progressive system of taxation.” This is a directive to Congress, just like the directive to it to give priority to the enactment of
laws for the enhancement of human dignity and the reduction of social, economic and political inequalities (Art. XIII, § 1), or for
the promotion of the right to “quality education” (Art. XIV, § 1). These provisions are put in the Constitution as moral incentives
to legislation, not as judicially enforceable rights.
Same; Same; Same; Contract Clause; Contracts; Not only are existing laws read into contracts in order to fix
obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a
basic postulate of the legal order.—Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the
imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law
would violate the constitutional provision that “No law impairing the obligation of contracts shall be passed.” It is enough to say
that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the
State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of
essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting
contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace
and good order of society.
Same; Same; Same; Same; Same; Contract Clause is not a limitation on the power of taxation save only where a tax
exemption was granted for a valid consideration.—In truth, the Contract Clause has never been thought as a limitation on the
exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration. Such is not
the case of PAL in G.R. No. 115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is
that the removal of its tax exemption cannot be made by a general, but only by a specific, law.
Same; Judicial Review; Public actions by “non-Hohfeldian” or ideological plaintiffs are now cognizable provided they
meet the standing requirement of the Constitution; There must be before the Court a fully developed factual record that alone
can impart to its adjudication the impact of actuality to insure that decision-making is informed and well-grounded. —The
substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the lack of a
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43
concrete record. We accept that this Court does not only adjudicate private cases; that public actions by “non-Hohfeldian”
or ideological plaintiffs are now cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII,
§ 1, ¶ 2 the Court has a “special function” of vindicating constitutional rights. Nonetheless the feeling cannot be escaped that we
do not have before us in these cases a fully developed factual record that alone can impart to our adjudication the impact of
actuality to insure that decision-making is informed and well grounded. Needless to say, we do not have power to render advisory
opinions or even jurisdiction over petitions for declaratory judgment. In effect we are being asked to do what the Conference
Committee is precisely accused of having done in these cases—to sit as a third legislative chamber to review legislation.
Same; Same; The duty of the Court to exercise its power of judicial review must still be performed in the context of a
concrete case or controversy; That the other departments of the government may have committed a grave abuse of discretion is
not an independent ground for exercising the Court’s power.—It does not add anything, therefore, to invoke this “duty” to justify
this Court’s intervention in what is essentially a case that at best is not ripe for adjudication. That duty must still be performed in
the context of a concrete case or controversy, as Art. VIII, § 5(2) clearly defines our jurisdiction in terms of “cases,” and nothing
but “cases.” That the other departments of the government may have committed a grave abuse of discretion is not an independent
ground for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement can in the
long run only result in undermining our authority as a court of law. For, as judges, what we are called upon to render is judgment
according to law, not according to what may appear to be the opinion of the day.
NARVASA, C.J., Separate Opinion:
Constitutional Law; Statutes; Origin of Revenue Bills; Origination should have no reference to time of conception but to
the affirmative act which effectively puts the bicameral legislative procedure in motion, i.e., the transmission by one chamber to
the other of a bill for its adoption, and it may be that in the Senate, revenue or tax measures are discussed, even drafted, before a
similar activity takes place in the House.—Exclusive origination, I submit, should have no reference to time of conception. As a
practical matter, origination should refer to the affirmative act which effectively puts the bicameral legislative procedure in
motion, i.e., the transmission by one chamber to the other of a bill for its adoption. This is the purposeful act which sets the
legislative machinery in operation
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44 ANNOTATED
to effectively lead to the enactment of a statute. Until this transmission takes place, the formulation and discussions, or the
reading for three or more times of proposed measures in either chamber, would be meaningless in the context of the activity
leading towards concrete legislation. Unless transmitted to the other chamber, a bill prepared by either house cannot possibly
become law. In other words, the first affirmative, efficacious step, the operative act as it were, leading to actual enactment of a
statute, is the transmission of a bill from one house to the other for action by the latter. This is the origination that is spoken of in
the Constitution in its Article VI, Section 24, in reference to appropriation, revenue, or tariff bills, etc. It may be that in the
Senate, revenue or tax measures are discussed, even drafted, and this before a similar activity takes place in the House. This is of
no moment, so long as those measures or bills remain in the Senate and are not sent over to the House. There is no originationof
revenue or tax measures by the Senate in this case. However, once the House completes the drawing up of a similar tax measure
in accordance with the prescribed procedure, even if this is done subsequent to the Senate’s own measure—indeed, even if this be
inspired by information that a measure of the same nature or on the same subject has been formulated in the Senate—and after
third reading transmits its bill to the Senate, there isorigination by (or in) the House within the contemplation of the Constitution.
Same; Same; Judicial Review; Supreme Court; Petitioners may not, by raising what are concededly novel and weighty
constitutional questions, compel the Supreme Court to assume the role of a trier of facts. —The Court will reject a case where the
legal issues raised, whatever they may be, depend for their resolution on still unsettled questions of fact. Petitioners may not, by
raising what are concededly novel and weighty constitutional questions, compel the Court to assume the role of a trier of facts. It
is on the contrary their obligation, before raising those questions to this Court, to see to it that all issues of fact are settled in
accordance with the procedures laid down by law for proof of facts. Failing this, petitioners would have only themselves to blame
for a peremptory dismissal.
Same; Same; “Enrolled Bill” Doctrine; Separation of Powers;There is no proof worthy of the name of any facts to justify
the reexamination and, possibly, disregard, of the “enrolled bill” theory.—I would myself consider the “enrolled bill” theory as
laying down a presumption of so strong a character as to be well nigh absolute or conclusive, fully in accord with the familiar and
fundamental philosophy of separation of powers. The result, as far as I am concerned, is to make discussion of the enrolled bill
principle purely academic; for as already
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pointed out, there is no proof worthy of the name of any facts to justify its reexamination and, possibly, disregard.
Same; Same; Bicameral Conference Committee; Both chambers of Congress entrust the function of reconciling the bills
to their delegates at a conference committee with full awareness, and tacit consent, that new provisions may be included even if
not within the “disagreeing provisions.”—The fact is that conference committees only take up bills which have already been
freely and fully discussed in both chambers of the legislature, but as to which there is need of reconciliation in view of
“disagreeing provisions” between them; and both chambers entrust the function of reconciling the bills to their delegates at a
conference committee with full awareness, and tacit consent, that conformably with established practice unquestioningly
observed over many years, new provisions may be included even if not within the “disagreeing provisions” but of which, together
with other changes, they will be given detailed and sufficiently explicit information prior to voting on the conference committee
version.
Same; Same; Same; It is an unacceptable theorization that when the BCC report and its proposed bill were submitted to
the Senate and the House, and the members thereof did not bother to read, or what is worse, having read did not understand,
what was before them.—In any case, all the changes and revisions, and deletions, made by the conference committee were all
subsequently considered by and approved by both the Senate and the House, meeting and voting separately. It is an unacceptable
theorization, to repeat, that when the BCC report and its proposed bill were submitted to the Senate and the House, and the
members thereof did not bother to read, or what is worse, having read did not understand, what was before them, or did not
realize that there were new provisions in the reconciled version unrelated to any “disagreeing provisions,” or that said new
provisions or revisions were effectively concealed from them. Moreover, it certainly was entirely within the power and
prerogative of either legislative chamber to reject the BCC bill and require the organization of a new bicameral conference
committee. That this option was not exercised by either house only proves that the BCC measure was found to be acceptable as in
fact it was approved and adopted by both chambers.
CRUZ, J., Separate Opinion:
Constitutional Law; Judicial Review; Where a specific procedure is fixed by the Constitution itself, it should not suffice
for Congress to simply say that the rules have been observed and flatly consider the
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46 ANNOTATED
matter closed.—I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it should not
suffice for Congress to simply say that the rules have been observed and flatly consider the matter closed. It does not have to be
as final as that. I would imagine that the judiciary, and particularly this Court, should be able to verify that statement and
determine for itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed. In fact, the Court has
already said that the question of whether certain procedural rules have been followed is justiciable rather than political because
what is involved is the legality and not the wisdom of the act in question. So we ruled in Sanidad v. Commission on Elections (73
SCRA 333) on the amendment of the Constitution; in Daza v. Singson (180 SCRA 496) on the composition of the Commission
on Appointments; and in the earlier case of Tañada v. Cuenco (100 SCRA 1101) on the organization of the Senate Electoral
Tribunal, among several other cases. By the same token, the ascertainment of whether a bill underwent the obligatory three
readings in both Houses of Congres should not be considered an invasion of the territory of the legislature as this would not
involve an inquiry into its discretion in approving the measure but only the mannerin which the measure was enacted.
Same; Expanded VAT Law; Bicameral Conference Committee; The resultant enrolled bill did not originate exclusively in
the House of Representatives.—The two bills were separately introduced in their respective Chambers. Both retained their
independent existence until they reached the bicameral conference committee where they were consolidated. It was this
consolidated measure that was finally passed by Congress and submitted to the President of the Philippines for his approval.
House Bill No. 11197 originated in the House of Representatives but this was not the bill that eventually became R.A. No. 7716.
The measure that was signed into law by President Ramos was the consolidation of that bill and another bill, viz., Senate Bill No.
1630, which was introduced in the Senate. The resultant enrolled bill thus did not originate exclusively in the House of
Representatives. The enrolled bill itself says that part of it (and it does not matter to what extent) originated in the Senate.
Same; Same; Same; The participation of the Senate was not in proposing or concurring with amendments but in
originating its own Senate bill which was not embodied in but merged with the House bill. —It would have been different if the
only participation of the Senate was in the amendment of the measure that was originally proposed in the House of
Representatives. But this was not the case. The participation of the Senate was not in proposing or concurring with
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amendments that would have been incorporated in House Bill No. 11197. Its participation was in originating its own
Senate Bill No. 1630, which was not embodied in but merged with House Bill No. 11197. Senate Bill No. 1630 was not even an
amendment by substitution, assuming this was permissible. To “substitute” means “to take the place of; to put or use in place of
another.” Senate Bill No. 1630 did not, upon its approval, replace (and thus eliminate) House Bill No. 11197. Both bills retained
their separate identities until they were joined or united into what became the enrolled bill and ultimately R.A. No. 7716.
PADILLA, J., Separate Opinion:
Constitutional Law; Statutes; Origin of Revenue Bills; The approval by the Senate of Senate Bill No. 1630, after it had
considered House Bill No. 11197, may be taken as an amendment by substitution by the Senate not only of Senate Bill No. 1129
but of House Bill No. 11197 as well.—Since the Senate is, under the above-quoted constitutional provision, empowered to concur
with a revenue measure exclusively originating from the House, or to propose amendments thereto, to the extent of proposing
amendments by SUBSTITUTION to the House measure, the approval by the Senate of Senate Bill No. 1630, after it had
considered House Bill No. 11197, may be taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only
of Senate Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated exclusively from the
House.
Same; Same; Separation of Powers; Presidential Certification of Bills; A becoming respect for a co-equal and coordinate
department of government points that weight and credibility be given to such Presidential judgment. —We have here then a
situation where the President did certify to the necessity of Senate Bill No. 1630’s immediate enactment to meet an emergency
and the Senate responded accordingly. While I would be the last to say that this Court cannot review the exercise of such power
by the President in appropriate cases ripe for judicial review, I am not prepared however to say that the President gravely abused
his discretion in the exercise of such power as to require that this Court overturn his action. We have been shown no fact or
circumstance which would impugn the judgment of the President, concurred in by the Senate, that there was an emergency that
required the immediate enactment of Senate Bill No. 1630. On the other hand, a becoming respect for a co-equal and coordinate
department of government points that weight and credibility be given to such Presidential judgment.
648
48 ANNOTATED
Same; Bill of Rights; Freedom of Expression; R.A. 7716 in imposing a value-added tax on circulation income of
newspapers and similar publications and on income derived from publishing advertisements in newspapers violates Sec. 4, Art
III of the Constitution.—Rep. Act No. 7716 in imposing a value-added tax on circulation income of newspapers and similar
publications and on income derived from publishing advertisements in newspapers, to my mind, violates Sec. 4, Art. III of the
Constitution. Indeed, even the Executive Department has tried to cure this defect by the issuance of BIR Regulation No. 11-
94 precluding implementation of the tax in this area. It should be clear, however, that the BIR regulation cannot amend the law
(Rep. Act No. 7716). Only legislation (as distinguished from administration regulation) can amend an existing law.
Same; Same; Freedom of Religion; The imposition of the VAT on the sale and distribution of religious articles must be
struck down for being contrary to Sec. 5, Art. III of the Constitution.—Similarly, the imposition of the VAT on the sale and
distribution of religious articles must be struck down for being contrary to Sec. 5, Art. III of the Constitution which provides:
“Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.”
Same; Same; Taxation; The inherent power of the State to tax, which is vested in the legislature, includes the power to
determine whom or what to tax, as well as how much to tax.—CREBA which specifically assails the 10% value-added tax on the
gross selling price of real properties, fails to distinguish between a sale of real properties primarily held for sale to customers or
held for lease in the ordinary course of trade or business and isolated sales by individual real property owners (Sec. 103[s]). That
those engaged in the business of real estate development realize great profits is of common knowledge and need not be discussed
at length here. The qualification in the law that the 10% VAT covers only sales of real property primarily held for sale to
customers, i.e. for trade or business thus takes into consideration a taxpayer’s capacity to pay. There is no showing that the
consequent distinction in real estate sales is arbitrary and in violation of the equal protection clause of the Constitution. The
inherent power to tax of the State, which is vested in the legislature, includes the power to determine whom or what to tax, as
well as how much to tax. In the absence of a clear showing that the tax violates the due process and equal protection
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VOL. 235, AUGUST 25, 1994 6
49
clauses of the Constitution, this Court, in keeping with the doctrine of separation of powers, has to defer to the discretion
and judgment of Congress on this point.
Same; Same; Franchises; R.A. 7716 can be considered a special law amending PAL’s franchise.—There can be no dispute, in my
mind, that the clear intent of Congress was to modify PAL’s franchise with respect to the taxes it has to pay. To this extent, Rep.
Act No. 7716 can be considered as a special law amending PAL’s franchise and its tax liability thereunder. That Rep. Act No.
7716 imposes the value-added taxes on other subjects does not make it a general law which cannot amend PD No. 1590.
VITUG, J., Separate Opinion:
Constitutional Law; Judicial Review; Separation of Powers; It is not believed that judicial tyranny is envisioned, let alone
institutionalized, by the people in the 1987 Constitution.—I cannot yet concede to the novel theory, so challengingly provocative
as it might be, that under the 1987 Constitution the Court may now at good liberty intrude, in the guise of the people’s
imprimatur, into every affair of government. What significance can still then remain, I ask, of the time honored and widely
acclaimed principle of separation of powers, if at every turn the Court allows itself to pass upon, at will, the disposition of a co-
equal, independent and coordinate branch in our system of government. I dread to think of the so varied uncertainties that such an
undue interference can lead to. The respect for long standing doctrines in our jurisprudence, nourished through time, is one of
maturity not timidity, of stability rather than quiescence. It has never occurred to me, and neither do I believe it has been
intended, that judicial tyranny is envisioned, let alone institutionalized, by our people in the 1987 Constitution. The test of
tyranny is not solely on how it is wielded but on how, in the first place, it can be capable of being exercised. It is time that any
such perception of judicial omnipotence is corrected.
REGALADO, J., Dissenting Opinion:
Constitutional Law; Expanded VAT Law; The Senate clearly and deliberately violated the requirements of the
Constitution not only in the origination of the bill but in the very enactment of R.A. 7716.—This writer consequently agrees with
the clearly tenable proposition of petitioners that when the Senate passed and approved S.B. No. 1630, had it certified by the
Chief Executive, and thereafter caused its
650
50 ANNOTATED
consideration by the bicameral conference committee in total substitution of H.B. No. 11197, it clearly and deliberately
violated the requirements of the Constitution not only in the origination of the bill but in the very enactment of Republic Act No.
7716. Contrarily, the shifting sands of inconsistency in the arguments adduced for respondents betray such lack of intellectual
rectitude as to give the impression of being mere rhetorics in defense of the indefensible.
DAVIDE, JR., J., Dissenting Opinion:
Constitutional Law; Expanded VAT Law; R.A. 7716 did not originate exclusively in the House.—Since R.A. No. 7716 is a
revenue measure, it must originate exclusively in the House—not in the Senate. As correctly asserted by petitioner Tolentino, on
the face of the enrolled copy of R.A. No. 7716, it is a “CONSOLIDATION OF HOUSE BILL NO. 11197 AND SENATE BILL
NO. 1630.” In short, it is an illicit marriage of a bill which originated in the House and a bill which originated in the Senate.
Therefore, R.A. No. 7716 did not originate exclusively in the House.
Same; Same; Origin of Revenue Bills; The Senate cannot amend by substitution with an entirely new bill of its own any
bill covered by Section 24 of Article VI which the House transmitted to it because such substitution would indirectly violate
Section 24.—Since the origination is not exclusively vested in the House of Representatives of the United States, the Senate’s
authority to propose or concur with amendments is necessarily broader. That broader authority is further confirmed by the phrase
“as on other Bills,” i.e., its power to propose or concur with amendments thereon is the same as in ordinary bills. The absence of
this phrase in our Constitution was clearly intended to restrict or limit the Philippine Senate’s power to propose or concur with
amendments. In the light of the exclusivity of origination and the absence of the phrase “as on other Bills,” the Philippine Senate
cannot amend by substitution with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of
Representatives transmitted to it because such substitution would indirectly violate Section 24.
Same; Same; Same; Presidential Certification of Bills; The only revenue bill which could be properly certified on
permissible constitutional grounds is the bill that was introduced in the House.—I submit, however, that the Presidential
certification is void ab initio not necessarily for the reason adduced by petitioner Kilosbayan, Inc., but because it was addressed
to the Senate for a bill which is prohibited from originating therein. The only bill which could be properly certified on
permissible
651
VOL. 235, AUGUST 25, 1994 6
51
constitutional grounds even if it had already been transmitted to the Senate is HB No. 11197. As earlier observed, this was
not so certified, although HB No. 9210 (one of those consolidated into HB No. 11197) was certified on 1 June 1993. Also, the
certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to HB No. 11197 because SB No. 1630 did
not substitute HB No. 11197 but SB No. 1129. Considering that the certification of SB No. 1630 is void, its approval on second
and third readings in one day violated Section 26(2), Article VI of the Constitution.
Same; Statutes; Bicameral Conference Committee; The duty of the BCC is limited to the reconciliation of disagreeing
provisions or the resolution of differences or inconsistencies of the bills from both Houses of Congress. —Even
granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved by both chambers of Congress and
validly referred to the bicameral conference committee, the latter had very limited authority thereon. It was created “in view of
the disagreeing provisions of” the two bills. Its duty was limited to the reconciliation of disagreeing provisions or the resolution
of differences or inconsistencies. The committee recognized that limited authority in the opening paragraph of its Report when it
said: “The Conference Committee on the disagreeing provisions of House Bill No. 11197 x x x and Senate Bill No. 1630 x x x.”
Under such limited authority, it could only either (a) restore, wholly or partly, the specific provisions of HB No. 11197 amended
by SB No. 1630, (b) sustain, wholly or partly, the Senate’s amendments, or (c) by way of a compromise, to agree that neither
provisions in HB No. 11197 amended by the Senate nor the latter’s amendments thereto be carried into the final form of the
former.
Same; Same; Same; Doctrine of Ratification; The doctrine of ratification may apply to minor procedural flaws or
tolerable breaches of the parameters of the bicameral conference committee’s limited powers but never to violations of the
Constitution.—I cannot agree with the suggestion that since both the Senate and the House had approved the bicameral
conference committee report and the bill proposed by it in substitution of HB No. 11197 and SB No. 1630, whatever infirmities
may have been committed by it were cured by ratification. This doctrine of ratification may apply to minor procedural flaws or
tolerable breaches of the parameters of the bicameral conference committee’s limited powers but never to violations of the
Constitution. Congress is not above the Constitution. In the instant case, since SB No. 1630 was introduced in violation of
Section 24, Article VI of the Constitution, was passed in the Senate in violation of the “three readings” rule, and was not
transmitted to the House for the completion of the constitutional
652
52 ANNOTATED
process of legislation, and HB No. 11197 was not likewise passed by the Senate on second and third readings, neither the
Senate nor the House could validly approve the bicameral conference committee report and the proposed bill.
Same; Same; “Enrolled Bill” Doctrine; Invocation of the “enrolled bill” doctrine is misplaced.—The majority opinion,
however, invokes the enrolled bill doctrine and wants this Court to desist from looking behind the copy of the assailed measure as
certified by the Senate President and the Speaker of the House. I respectfully submit that the invocation is misplaced. First, as to
the issue of origination, the certification in this case explicitly states that R.A. No. 7716 is a “consolidation of House Bill No.
11197 and Senate Bill No. 1630.” This is conclusive evidence that the measure did not originate exclusively in the House.
Second, the enrolled bill doctrine is of American origin, and unquestioned fealty to it may no longer be justified in view of the
expanded jurisdiction of this Court under Section 1, Article VIII of our Constitution. Third, even under the regime of the 1935
Constitution which did not contain the above provision, this Court, through Mr. Chief Justice Makalintal, in Astorga vs.
Villegas, declared that it cannot be truly said that Mabanag vs. Lopez Vito has laid to rest the question of whether the enrolled bill
doctrine or the journal entry rule should be adhered to in this jurisdiction. Fourth, even in the United States, the enrolled bill
doctrine has been substantially undercut. This is shown in the disquisitions of Mr. Justice Reynato S. Puno in his dissenting
opinion, citing Sutherland, Statutory Construction.
ROMERO, J., Dissenting Opinion:
Constitutional Law; Expanded VAT Law; Bicameral Conference Committee; A bicameral conference committee is a

creature, not of the Constitution, but of the legislative body under its power to determine rules of its proceeding. —As
a conference committee has been defined: “. . . unlike the joint committee is two committees, one appointed by each house. It is
normally appointed for a specific bill and its function is to gain accord between the two houses either by the recession of one
house from its bill or its amendments or by the further amendment of the existing legislation or by the substitution of an entirely
new bill. Obviously the conference committee is always a special committee and normally includes the member who introduced
the bill and the chairman of the committee which considered it together with such other representatives of the house as seem
expedient. (Horack, Cases and Materials on Legislation [1940] 220. See also Zinn, Conference Procedure in Congress, 38 ABAJ
864 [1952]; Steiner, The Congressional Conference
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VOL. 235, AUGUST 25, 1994 6
53
Committee [U of Ill. Press, 1951]).” From the foregoing definition, it is clear that a bicameral conference committee is a
creature, not of the Constitution, but of the legislative body under its power to determine rules of its proceedings under Article
VI, Sec. 16 (3) of the Constitution. Thus, it draws its life and vitality from the rules governing its creation.
Same; Same; Same; The Bicameral Conference Committee exceeded the power and authority granted in the Rules of its
creation.—Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral Conference Committee
(henceforth to be referred to as BICAM) exceeded the power and authority granted in the Rules of its creation. Both Senate and
House Rules limit the task of the Conference Committee in almost identical language to the settlement of differences in the
provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there are provisions in subject bill, to
start with, which differ and, therefore, need reconciliation. Nowhere in the Rules is it authorized to initiate or propose completely
new matter. Although under certain rules on legislative procedure, like those in Jefferson’s Manual, a conference committee may
introduce germane matters in a particular bill, such matters should be circumsribed by the committee’s sole authority and
function to reconcile differences.
Same; Same; Same; Insertion of new matter on the part of the Bicameral Conference Committee is an ultra vires act
which makes the same void.—Parenthetically, in the Senate and in the House, a matter is “germane” to a particular bill if there is
a common tie between said matter and the provisions which tend to promote the object and purpose of the bill it seeks to amend.
If it introduces a new subject matter not within the purview of the bill, then it is not “germane” to the bill. The test is whether or
not the change represented an amendment or extension of the basic purpose of the original, or the introduction of an entirely new
and different subject matter. In the BICAM, however, the germane subject matter must be within the ambit of the disagreement
between the two Houses. If the “germane” subject is not covered by the disagreement but it is reflected in the final version of the
bill as reported by the Conference Committee or, if what appears to be a “germane” matter in the sense that it is “relevant or
closely allied” with the purpose of the bill, was not the subject of a disagreement between the Senate and the House, it should be
deemed an extraneous matter or even a “rider” which should never be considered legally passed for not having undergone the
three-day reading requirement. Insertion of new matter on the part of the BICAM is, therefore, an ulta vires act which makes the
same void.
654
4 ANNOTATED
BELLOSILLO, J., Dissenting Opinion:
Constitutional Law; Origin of Revenue Bills; Statutory Construction; The provision in the Constitution requiring that all
revenue bills shall originate exclusively from the Lower House is mandatory.—Verily, the provision in our Constitution requiring
that all revenue bills shall originate exclusively from the Lower House is mandatory. The word “exclusively” is an “exclusive
word,” which is indicative of an intent that the provision is mandatory. Hence, all American authorities expounding on the
meaning and application of Sec. 7, par. (1), Art. I, of the U.S. Constitution cannot be used in the interpretation of Sec. 24, Art. VI,
of our 1987 Constitution which has a distinct feature of “exclusiveness” all its own. Thus, when our Constitution absolutely
requires—as it is mandatory—that a particular bill should exclusively emanate from the Lower House, there is no alternative to
the requirement that the bill to become valid law must originate exclusively from that House.
Same; Same; Same; It is the general rule to regard constitutional provisions as mandatory, and not to leave any
discretion to the will of the legislature to obey or disregard them.—In the interpretation of constitutions, questions frequently
arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional
provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be
mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory, and not to leave any discretion to
the will of the legislature to obey or disregard them. This presumption as to mandatory quality is usually followed unless it is
unmistakably manifest that the provisions are intended to be merely directory. So strong is the inclination in favor of giving
obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other department
of the government may any provision of the Constitution be regarded as merely directory, but that each and everyone of its
provisions should be treated as imperative and mandatory, without reference to the rules and distinguishing between the directory
and the mandatory statutes.
Same; Same; A Senate amendment by substitution simply means that the bill did not in effect originate from the lower
chamber but from the upper chamber, disguising itself as a mere amendment of the House version. —In fine, in the cases cited
which were lifted from American authorities, it appears that the revenue bills in question actually originated from the House of
Representatives and were amended by the Senate only after they were transmitted to it. Perhaps, if the factual
655
VOL. 235, AUGUST 25, 1994 6
55
circumstances in those cases were exactly the same as the ones at bench, then the subject revenue or tariff bill may be
upheld in this jurisdiction on the principle of substantial compliance, as they were in the United States, except possibly in
instances where the House bill undergoes what is now referred to as “amendment by substitutionn,” for that would be in
derogation of our Constitution which vests solely in the House of Representatives the power to initiate revenue bills. A Senate
amendment by substitution simply means that the bill in question did not in effect originate from the lower chamber but from the
upper chamber and now disguises itself as a mere amendment of the House version.
Same; Judicial Review; Courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken
by political agencies in disregard of the judgment of the judicial tribunals.—The rule is fixed that the duty in a proper case to
declare a law unconstitutional cannot be declined and must be performed in accordance with the deliberate judgment of the
tribunal before which the validity of the enactment is directly drawn into question. When it is clear that a statute transgresses the
authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional because they
cannot shirk from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental
law of the state is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the
fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the
destruction of the Constitutionn. Since the question as to the constitutionality of a statute is a judicial matter, the courts will not
decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in disregard of the
judgment of the judicial tribunals.
PUNO, J., Dissenting Opinion:
Constitutional Law; Bicameral Conference Committee; Ex Post Veto Power; There is absolutely no legal warrant for the
bold submission that a Bicameral Conference Committee possesses the power to add or delete provisions in bills already
approved on third reading by both Houses or an ex post veto power.—There is absolutely no legal warrant for the bold
submission that a Bicameral Conference Committee possesses the power to add/delete provisions in bills already approved on
third reading by both Houses or an ex post veto power. To support this postulate that can enfeeble Congress itself, respondents
cite no constitutional provision, no law, not even any rule or regulation. Worse,
656
56 ANNOTATED
their stance is categorically repudiated by the rules of both the Senate and the House of Representatives which define with
precision the parameters of power of a Bicameral Conference Committee.
Same; Same; Same; The thesis that a Bicameral Conference Committee can wield ex post veto power wages war against
our settled ideals of representative democracy.—But the thesis that a Bicameral Conference Committee can wield ex post veto
power does not only contravene the rules of both the Senate and the House. It wages war againt our settled ideals of
representative democracy. For the inevitable, catastrophic effect of the thesis is to install a Bicameral Conference Committee as
the Third Chamber of our Congress, similarly vested with the power to make laws but with the dissimilarity that its laws are not
the subject of a free and full discussion of both Houses of Congress. With such a vagrant power, a Bicameral Conference Com-
mittee acting as a Third Chamber will be a constitutional monstrosity.
Same; “Enrolled Bill” Doctrine; The enrolled bill theory is a historical relic that should not continuously rule us from the
fossilized past.—Respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial inquiry on whether
Congress observed our constitutional procedure in the passage of R.A. No. 7716. The enrolled bill theory is a historical relic that
should not continuously rule us from the fossilized past. It should be immediately emphasized that the enrolled bill theory
originated in England where there is no written constitution and where Parliament is supreme. In this jurisdiction, we have a
written constitution and the legislature is a body of limited powers. Likewise, it must be pointed out that starting from the decade
of the 40’s, even American courts have veered away from the regidity and unrealism of the conclusiveness of an enrolled bill.
Same; Same; The previous rulings of the Supreme Court on the conclusiveness of an enrolled bill are no longer good law.
—I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as enunciated in the 1947 lead case
of Mabanag v. Lopez Vito, and reiterated in subsequent cases. With due respect, I submit that these rulings are no longer good
law. Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 is no longer in our statute
books. It has long been repealed by the Rules of Court. Mabanagalso relied on jurisprudence and authorities in the United States
which are under severe criticisms by modern scholars. Hence, even in the United States the conclusiveness of an enrolled bill has
been junked by most of the States.
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VOL. 235, AUGUST 25, 1994 657
ORIGINAL ACTIONS in the Supreme Court. Certiorari and prohibition.

Arturo M. Tolentino for and in his behalf.
Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No. 115525.
Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco.
Villaraza and Cruz for petitioners in G.R. No. 115544.
Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754.
Salonga, Hernandez & Allado for Freedom From Debts Coalition, Inc. & Phil. Bible Society.
Estelito P. Mendoza for petitioner in G.R. No. 115852.
Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No. 115873.
R.B. Rodriguez & Associates for petitioners in G.R. No. 115931.
Rene A.V. Saguisag for MABINI.
MENDOZA, J.:
The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or
exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or
properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act
No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the
National Internal Revenue Code.
These are various suits for certiorari and prohibition, challenging the constitutionality of Republic Act No. 7716
on various grounds summarized in the resolution of July 6, 1994 of this Court, as follows:
658
8 ANNOTATED
I. Procedural Issues:
1. A.Does Republic Act No. 7716 violate Art. VI, § 24 of the Constitution?
2. B.Does it violate Art. VI, § 26(2) of the Constitution?
3. C.What is the extent of the power of the Bicameral Conference Committee?
II. Substantive Issues:
1. A.Does the law violate the following provisions in the Bill of Rights (Art. III)?
1. 1.§ 1
2. 2.§ 4
3. 3.§ 5
4. 4.§ 10
1. B.Does the law violate the following other provisions of the Constitution?
1. 1.Art. VI, § 28(1)

2. 2.Art. VI, § 28(3)
These questions will be dealt in the order they are stated above. As will presently be explained not all of these
questions are judicially cognizable, because not all provisions of the Constitution are self executing and, therefore,
judicially enforceable. The other departments of the government are equally charged with the enforcement of the
Constitution, especially the provisions relating to them.
I. PROCEDURAL ISSUES
The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Value-Added Tax Law,
Congress violated the Constitution because, although H. No. 11197 had originated in the House of Representatives,
it was not passed by the Senate but was simply consolidated with the Senate version (S. No. 1630) in the Conference
Committee to produce the bill which the President signed into law. The following provisions of the Constitution are
cited in support of the proposition that because Republic Act No. 7716 was passed in this manner, it did
659
VOL. 235, AUGUST 25, 1994 659
not originate in the House of Representatives and it has not thereby become a law:
Art. VI, § 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills
of local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
Id., § 26(2): No bill passed by either House shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to meet
a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and the yeas and naysentered in the Journal.
It appears that on various dates between July 22, 1992 and August 31, 1993, several bills were introduced in the
1
House of Representatives seeking to amend certain provisions of the National Internal Revenue Code relative to the
value-added tax or VAT. These bills were referred to the House Ways and Means Committee which recommended
for approval a substitute measure, H. No. 11197, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS
99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V,
AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V,
ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on November 17, 1993,
it was approved by the House of Representatives after third and final reading.
________________
H. Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100. (Respondents’ Consolidated
1
Memorandum, Annexes 3-12).

660
0 ANNOTATED
It was sent to the Senate on November 23, 1993 and later referred by that body to its Committee on Ways and
Means.
On February 7, 1994, the Senate Committee submitted its report recommending approval of S. No. 1630,
entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
99, 100, 102, 103, 104, 105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 AND 116 OF TITLE V, ALL OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES
It was stated that the bill was being submitted “in substitution of Senate Bill No. 1129, taking into consideration P.S.
Res. No. 734 and H.B. No. 11197.”
On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished debates on the bill and
approved it on second reading on March 24, 1994. On the same day, it approved the bill on third reading by the
affirmative votes of 13 of its members, with one abstention.
H. No. 11197 and its Senate version (S. No. 1630) were then referred to a conference committee which, after
meeting four times (April 13, 19, 21 and 25, 1994), recommended that “House Bill No. 11197, in consolidation with
Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by
the conferees.”
The Conference Committee bill, entitled “AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT)
SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL
INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES,” was thereafter approved by
the House of Representatives on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill was then
presented to the President of the Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On
May 12, 1994, Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28,
1994, it took effect, although
661
VOL. 235, AUGUST 25, 1994 661
its implementation was suspended until June 30, 1994 to allow time for the registration of business entities. It would
have been enforced on July 1, 1994 but its enforcement was stopped because the Court, by the vote of 11 to 4 of its
members, granted a temporary restraining order on June 30, 1994.
First. Petitioners’ contention is that Republic Act No. 7716 did not “originate exclusively” in the House of
Representatives as required by Art. VI, § 24 of the Constitution, because it is in fact the result of the consolidation of
two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, § 24
was adopted from the American Federal Constitution, it is notable in two respects: the verb “shall originate” is
2
qualified in the Philippine Constitution by the word “exclusively” and the phrase “as on other bills” in the American
version is omitted. This means, according to them, that to be considered as having originated in the House, Republic
Act No. 7716 must retain the essence of H. No. 11197.
This argument will not bear analysis. To begin with, it is not the law—but the revenue bill—which is required
by the Constitution to “originate exclusively” in the House of Representatives. It is important to emphasize this,
because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a
rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this
point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that
a revenue statute—and not only the bill which initiated the legislative process culminating in the enactment of the
law—must substantially be the same as the House bill would be to deny the Senate’s power not only to “concur
with amendments” but also to “propose amendments.” It would be to violate the coequality of legislative power of
the two houses of Congress and in fact make the House superior to the Senate.
The contention that the constitutional design is to limit the Senate’s power in respect of revenue bills in order to
compensate
________________
U.S. CONST., Art. 1, § 7, cl. 1: “All bills for raising revenue shall originate in the House of Representatives, but the
2
Senate may propose or concur with amendments, as on other bills.”

662
2 ANNOTATED
for the grant to the Senate of the treaty-ratifying power and thereby equalize its powers and those of the House
3
overlooks the fact that the powers being compared are different. We are dealing here with the legislative power
which under the Constitution is vested not in any particular chamber but in the Congress of the Philippines,
consisting of “a Senate and a House of Representatives.” The exercise of the treaty-ratifying power is not the
4
exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification
for comparing the legislative powers of the House and of the Senate on the basis of the possession of such
nonlegislative power by the Senate. The possession of a similar power by the U.S. Senate has never been thought of
5
as giving it more legislative powers than the House of Representatives.

In the United States, the validity of a provision (§ 37) imposing an ad valorem tax based on the weight of
vessels, which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld against the claim that the provision
was a revenue bill which originated in the Senate in contravention of Art. I, § 7 of the U.S. Constitution. Nor is the
6
power to amend limited to adding a provision or two in a revenue bill emanating from the House. The U.S. Senate
has gone so far as changing the whole of bills following the enacting clause and substituting its own versions. In
1883, for example, it struck out everything after the enacting clause of a tariff bill and wrote in its place its own
measure, and the House subsequently accepted the amendment. The U.S. Senate likewise added 847 amendments to
what later became the Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the Tariff Act of 1921; it
rewrote an extensive tax revision bill in the same year and recast most of the tariff bill of 1922. Given, then, the
7
power of the Senate to propose amendments, the Senate can propose its own version even with respect to bills which
are required by the Constitution to originate in the House.
________________
Art. VII, § 21.

3
Art. VI, § 1.
4
U.S. CONST., Art. II, § 2, cl. 2.

5
Rainey v. United States, 232 U.S. 309, 58 L. Ed. 117 (1914).

6
F.A. OGG AND P.O. RAY, INTRODUCTION TO AMERICAN GOVERNMENT 309, n. 2 (1945).
7
663
VOL. 235, AUGUST 25, 1994 663
It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S.
No. 1129) earlier filed and that what the Senate did was merely to “take [H. No. 11197] into consideration” in
enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting
clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an
amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject
matter. In either case the result are two bills on the same subject.
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills
authorizing an increase of the public debt, private bills and bills of local application must come from the House of
Representatives on the theory that, elected as they are from the districts, the members of the House can be expected
to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are
expected to approach the same problems from the national perspective. Both views are thereby made to bear on the
enactment of such laws.
Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the
bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The
Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the
House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate
ever considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of
legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and
the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply
the priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT
law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in
the Senate, and H. No. 11197 was only a substitute of those earlier bills.
664
4 ANNOTATED
Second. Enough has been said to show that it was within the power of the Senate to propose S. No. 1630. We now
pass to the next argument of petitioners that S. No. 1630 did not pass three readings on separate days as required by
the Constitution because the second and third readings were done on the same day, March 24, 1994. But this was
8
because on February 24, 1994 and again on March 22, 1994, the President had certified S. No. 1630 as urgent. The
9 10
presidential certification dispensed with the requirement not only of printing but also that of reading the bill on
separate days. The phrase “except when the President certifies to the necessity of its immediate enactment, etc.” in
Art. VI, § 26(2) qualifies the two stated conditions before a bill can become a law: (i) the bill has passed three
readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally
approved.
In other words, the “unless” clause must be read in relation to the “except” clause, because the two are really
coordinate clauses of the same sentence. To construe the “except” clause as simply dispensing with the second
requirement in the “unless” clause (i.e., printing and distribution three days before final approval) would not only
violate the rules of grammar. It would also negate the very premise of the “except” clause: the necessity of securing
_______________
8
Although the 1935 Constitution did not expressly require that bills must pass three readings in each House, this was
clearly implied from its Art. VI, § 21(2) so that the two Houses by their rules prescribed three readings for the passage of
bills. Later the requirement was expressly provided in the 1973 Constitution from which Art. VI, § 26(2) was taken. Art.
VIII, § 19(2) of the 1973 document provided: No bill shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to the Members three days before its passage,
except when the Prime Minister certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the Journal.
Respondents’ Consolidated Reply, Annex 14.
9
Memorandum of Petitioner Arturo M. Tolentino, Supplement C.

10
665
VOL. 235, AUGUST 25, 1994 665
the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only
the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any
use in insuring imme-diate enactment. It may well be doubted whether doing away with the necessity of printing and
distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face
of an emergency requiring the calling of a special election for President and Vice-President. Under the Constitution
such a law is required to be made within seven days of the convening of Congress in emergency session. 11
That upon the certification of a bill by the President the requirement of three readings on separate days and of
printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the
bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became
Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day
(May 14, 1968) after the bill had been certified by the President as urgent. 12
There is, therefore, no merit in the contention that presidential certification dispenses only with the requirement
for the printing of the bill and its distribution three days before its passage but
________________
Art. VII, § 10 provides: “The Congress shall, at ten o’clock in the morning of the third day after the vacancy in the
11
offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within
seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than
forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed
certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third
reading by the Congress. Appro-priations for the special election shall be charged against any current appropriations and
shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the
Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs
within eighteen months before the date of the next presidential election.”
JOURNAL OF THE HOUSE OF REPRESENTATIVES, SIXTH CONGRESS, FOURTH SESSION 398-399
12
(1968).
666
6 ANNOTATED
not with the requirement of three readings on separate days, also.
It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency,
the condition stated in the certification of a “growing budget deficit” not being an unusual condition in this country.
It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the
certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate
accepted the President’s certification. Should such certification be now reviewed by this Court, especially when no
evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the
members of the Senate were deprived of the time needed for the study of a vital piece of legislation?
The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law
under Art. VII, § 18, or the existence of a national emergency justifying the delegation of extraordinary powers to
the President under Art. VI, § 23(2), is subject to judicial review because basic rights of individuals may be at
hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural
requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a
different standard of review.
Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No. 11197. That is
because S. No. 1630 was what the Senate was considering. When the matter was before the House, the President
likewise certified H. No. 9210 then pending in the House.
Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which the Conference
Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee
report included provisions not found in either the House bill or the Senate bill and that these provisions were
“surreptitiously” inserted by the Conference Committee. Much is made of the fact that in the last two days of its
session on April 21 and 25, 1994 the Committee met behind closed doors. We are not told, however, whether the
provisions were not the result of the give and take that often mark the
667
VOL. 235, AUGUST 25, 1994 667
proceedings of conference committees.
Nor is there anything unusual or extraordinary about the fact that the Conference Committee met in executive
sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, with only
the conferees present. Otherwise, no compromise is likely to be made. The Court is not about to take the suggestion
of a cabal or sinister motive attributed to the conferees on the basis solely of their “secret meetings” on April 21 and
25, 1994, nor read anything into the incomplete remarks of the members, marked in the transcript of stenographic
notes by ellipses. The incomplete sentences are probably due to the stenographer’s own limitations or to the
incoherence that sometimes characterize conversations. William Safire noted some such lapses in recorded talks
even by recent past Presidents of the United States.
In any event, in the United States conference committees had been customarily held in executive sessions with
only the conferees and their staffs in attendance. Only in November 1975 was a new rule adopted requiring open
13
sessions. Even then a majority of either chamber’s conferees may vote in public to close the meetings. 14
As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been explained:
Under congressional rules of procedure, conference committees are not expected to make any material
change in the measure at issue, either by deleting provisions to which both houses have already agreed or
by inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house
amends a proposal originating in either house by striking out everything following the enacting clause and
substituting provisions which make it an entirely new bill. The versions are now altogether different,
permitting a conference committee to draft essentially a new bill . . . . 15
________________
Zinn, Conference Procedure in Congress, 38 ABAJ 864-865 (1952).

13
CONG. QUARTERLY 65 (1983); M. JEWELL, THE LEGISLATIVE PROCESS IN THE UNITED STATES 169
14
(1986); LEES AND SHAW, COMMITTEES IN LEGISLATURES 163 (1979).

W. KEEFE AND M. OGUL, THE AMERICAN LEGISLATIVE PROCESS 149 (1985).
15
668
8 ANNOTATED
The result is a third version, which is considered an “amendment in the nature of a substitute,” the only requirement
for which being that the third version be germane to the subject of the House and Senate bills. 16
Indeed, this Court recently held that it is within the power of a conference committee to include in its report an
entirely new provision that is not found either in the House bill or in the Senate bill. If the committee can propose
17
an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions,
collectively considered as an “amendment in the nature of a substitute,” so long as such amendment is germane to
the subject of the bills before the committee. After all, its report was not final but needed the approval of both
houses of Congress to become valid as an act of the legislative department. The charge that in this case the
Conference Committee acted as a third legislative chamber is thus without any basis. 18
________________
16
W. OLESZEK, CONGRESSIONAL PROCEDURES AND POLICY PROCESS 214 (1984).
17
Philippine Judges Association v. Prado, G.R. No. 105371, Nov. 11, 1993.
18
The charge is an old one. In the United States, the same charge, including claims that important provisions were
being “surreptitiously added” in the committee, was made in the 1940s. But no satisfactory alternative to the conference
committee has been devised. And today, given the bicameral nature of the U.S. Congress, the charge is no longer heard.
Compare the following from a 1945 comment: “As a devise for oiling the machinery of legislation, committees of
conference are, under American conditions, useful, if not indispensable. Nevertheless, they have shortcomings. Without
exception, they work behind closed doors, hold no hearings, and give their proceedings no publicity. Doubtless it would be
difficult for them to make headway if they did otherwise. Nevertheless, in view of the power which they wield, strong
objection can be, and is, raised. For, while the committees are supposed to deal only with actual differences between the
houses and to stay well within the bounds set by the extreme positions which the houses have taken, they often work into
measures, as reported, provisions of their own devising, even going so far as to rewrite whole sections with the sole
purpose of incorporating the views which the majority members happen to hold. . . . In practice, this often results in the
adoption of important provisions, more or less surreptitiously added, without consideration by either house—in other
words, legislation nominally by Congress but
669
VOL. 235, AUGUST 25, 1994 669
Nonetheless, it is argued that under the respective Rules of the Senate and the House of Representatives a
conference committee can only act on the differing provisions of a Senate bill and a House bill, and that contrary to
these Rules the Conference Committee inserted provisions not found in the bills submitted to it. The following
provisions are cited in support of this contention:
Rules of the Senate
Rule XII:
§ 26. In the event that the Senate does not agree with the House of Representatives on the provision of
any bill or joint resolution, the differences shall be settled by a conference committee of both
Houses which shall meet within ten days after their composition.
The President shall designate the members of the conference committee in accordance with
subparagraph (c), Section 3 of Rule III.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has been filed with the
Secretary of the Senate and copies thereof have been distributed to the Members.
(Emphasis added)
Rules of the House of Representatives
Rule XIV:
§ 85. Conference Committee Reports.—In the event that the House does not agree with the Senate on
the amendments to any bill or
________________
actually by conference committee. Any remedy found will probably take the form of reducing the need for using conference
committees at all; and the principal suggestion to that end is that bills and resolutions be referred, not, as now, to separate
committees of the two houses, but to joint committees, which not only would hold single sets of hearings, but might deliberate
and report back bills to the two houses in such agreed form that further significant differences would not be likely to develop.
Arrangements of this nature yield excellent results in the legislature of Massachusetts. But there are obstacles to adoption of the
plan for Congress, not the least of them being a natural aversion of House members to joint committees in which senators seem
likely to dominate; and, as indicated below, the outlook for the reform is problematical.” F.A. OGG AND P.O. RAY, supra note
7 at 310-311.
670
0 ANNOTATED
joint resolution, the differences may be settled by conference committees of both Chambers.
The consideration of conference committee reports shall always be in order, except when the journal
is being read, while the roll is being called or the House is dividing on any question. Each of the pages of
such reports shall be signed by the conferees. Each report shall contain a detailed, sufficiently explicit
statement of the changes in or amendments to the subject measure.
The consideration of such report shall not be in order unless copies thereof are distributed to the
Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that
three copies of the report, signed as above provided, are deposited in the office of the Secretary General.
(Emphasis added)
To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule
XLIV, § 112 of the Rules of the Senate is cited to the effect that “If there is no Rule applicable to a specific case the
precedents of the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the
Rules contained in Jefferson’s Manual.” The following is then quoted from the Jefferson’s Manual:
The managers of a conference must confine themselves to the differences committed to them . . . and may
not include subjects not within disagreements, even though germane to a question in issue.
Note that, according to Rule XLIX, § 112, in case there is no specific rule applicable, resort must be to the
legislative practice. The Jefferson’s Manual is resorted to only as supplement. It is common place in Congress that
conference committee reports include new matters which, though germane, have not been committed to the
committee. This practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral
argument in these cases. Whatever, then, may be provided in the Jefferson’s Manual must be considered to have
been modified by the legislative practice. If a change is desired in the practice it must be sought in Congress since
this question is not covered by any constitutional provision but is only an internal rule of each house. Thus, Art. VI,
§ 16(3) of the Constitution provides that “Each House may determine the rules of its proceedings . . . .”
671
VOL. 235, AUGUST 25, 1994 671
This observation applies to the other contention that the Rules of the two chambers were likewise disregarded in the
preparation of the Conference Committee Report because the Report did not contain a “detailed and sufficiently
explicit statement of changes in, or amendments to, the subject measure.” The Report used brackets and capital
letters to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks
and symbols the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper
forum for the enforcement of these internal Rules. To the contrary, as we have already ruled, “parliamentary rules
are merely procedural and with their observance the courts have no concern.” Our concern is with the procedural
19
requirements of the Constitution for the enactment of laws. As far as these requirements are concerned, we are
satisfied that they have been faithfully observed in these cases.
Nor is there any reason for requiring that the Committee’s Report in these cases must have undergone three
readings in each of the two houses. If that be the case, there would be no end to negotiation since each house may
seek modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each
house on a “take it or leave it” basis, with the only alternative that if it is not approved by both houses, another
conference committee must be appointed. But then again the result would still be a compromise measure that may
not be wholly satisfying to both houses.
Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either
house of Congress, not to the conference committee report. For if the purpose of requiring three readings is to give
members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three
readings; that in the Senate it was considered on first reading and then referred to a committee of that body; that
although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had
prepared by “taking into consideration” the House bill; that for its part the Conference Committee consolidated the
two bills and prepared a
_________________
Osmeña v. Pendatun, 109 Phil. 863, 871 (1960).

19
672
2 ANNOTATED
compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate,
presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of
Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee
usurped the legislative power of Congress is, in our view, without warrant in fact and in law.
Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its
favor. Our cases manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its
20
provisions but also of its due enactment. Not even claims that a proposed constitutional amendment was invalid
because the requisite votes for its approval had not been obtained or that certain provisions of a statute had been
21
“smuggled” in the printing of the bill have moved or persuaded us to look behind the proceedings of a coequal
22
branch of the government. There is no reason now to depart from this rule.
No claim is here made that the “enrolled bill” rule is absolute. In fact in one case we “went behind” an enrolled
23
bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate
in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and
withdrew his signature, so that in effect there was no longer an enrolled bill to consider.
But where allegations that the constitutional procedures for the passage of bills have not been observed have no
more basis than another allegation that the Conference Committee “surreptitiously” inserted provisions into a bill
which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the
“enrolled bill” rule in such cases would be to disregard the respect due the other two departments of our
government.
________________
E.g., Mabanag v. Lopez Vito, 78 Phil. 1 (1947); Casco (Phil.) Inc. v. Gimenez, 7 SCRA 347 (1963); Morales v.
20
Subido, 27 SCRA 131 (1969).

Mabanag v. Lopez Vito, supra note 20.
21
Morales v. Subido, supra note 20.

22
Astorga v. Villegas, 56 SCRA 714 (1974).

23
673
VOL. 235, AUGUST 25, 1994 673
Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the Philippine Airlines, Inc.,
petitioner in G.R. No. 11582, namely, that it violates Art. VI, § 26(1) which provides that “Every bill passed by
Congress shall embrace only one subject which shall be expressed in the title thereof.” It is contended that neither H.
No. 11197 nor S. No. 1630 provided for removal of exemption of PAL transactions from the payment of the VAT
and that this was made only in the Conference Committee bill which became Republic Act No. 7716 without
reflecting this fact in its title.
The title of Republic Act No. 7716 is:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX
BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING
AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE
CODE, AS AMENDED, AND FOR OTHER PURPOSES.
Among the provisions of the NIRC amended is § 103, which originally read:
§ 103. Exempt transactions.—The following shall be exempt from the value-added tax:
....
(q) Transactions which are exempt under special laws or international agreements to which the
Philippines is a signatory.
Among the transactions exempted from the VAT were those of PAL because it was exempted under its franchise
(P.D. No. 1590) from the payment of all “other taxes . . . now or in the near future,” in consideration of the payment
by it either of the corporate income tax or a franchise tax of 2%.
As a result of its amendment by Republic Act No. 7716, § 103 of the NIRC now provides:
§ 103. Exempt transactions.—The following shall be exempt from the value-added tax:
....
(q) Transactions which are exempt under special laws, except those granted under Presidential Decree
Nos. 66, 529, 972, 1491, 1590. . . .
674
4 ANNOTATED
The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is concerned.
The question is whether this amendment of § 103 of the NIRC is fairly embraced in the title of Republic Act No.
7716, although no mention is made therein of P.D. No. 1590 as among those which the statute amends. We think it
is, since the title states that the purpose of the statute is to expand the VAT system, and one way of doing this is to
widen its base by withdrawing some of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in
the title of the law, in addition to § 103 of the NIRC, in which it is specifically referred to, would be to insist that the
title of a bill should be a complete index of its content.
The constitutional requirement that every bill passed by Congress shall embrace only one subject which shall be
expressed in its title is intended to prevent surprise upon the members of Congress and to inform the people of
pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar, petitioner did not
know before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for the
same reason other statutes, although published, pass unnoticed until some event somehow calls attention to their
existence. Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL’s own franchise
under P.D. No. 1590, and yet no mention is made of its tax exemption. The title of P.D. No. 1590 is:
AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO ESTABLISH,
OPERATE, AND MAINTAIN AIRTRANSPORT SERVICES IN THE PHILIPPINES AND BETWEEN
THE PHILIPPINES AND OTHER COUNTRIES.
The trend in our cases is to construe the constitutional requirement in such a manner that courts do not unduly
interfere with the enactment of necessary legislation and to consider it sufficient if the title expresses the general
subject of the statute and all its provisions are germane to the general subject thus expressed. 24
________________
See, e.g., Alalayan v. National Power Corp., 24 SCRA 172 (1968); Cordero v. Cabatuando, 6 SCRA

24
418 (1962); Sumulong v. COMELEC, 73 Phil. 288 (1941).

675
VOL. 235, AUGUST 25, 1994 675
It is further contended that amendment of petitioner’s franchise may only be made by special law, in view of § 24 of
P.D. No. 1590 which provides:
This franchise, as amended, or any section or provision hereof may only be modified, amended, or
repealed expressly by a special law or decree that shall specifically modify, amend, or repeal this
franchise or any section or provision thereof.
This provision is evidently intended to prevent the amendment of the franchise by mere implication resulting from
the enactment of a later inconsistent statute, in consideration of the fact that a franchise is a contract which can be
altered only by consent of the parties. Thus in Manila Railroad Co. v. Rafferty, it was held that an Act of the U.S.
25
Congress, which provided for the payment of tax on certain goods and articles imported into the Philippines, did not
amend the franchise of plaintiff, which exempted it from all taxes except those mentioned in its franchise. It was
held that a special law cannot be amended by a general law.
In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL’s franchise (P.D. No. 1590) by
specifically excepting from the grant of exemptions from the VAT PAL’s exemption under P.D. No. 1590. This is
within the power of Congress to do under Art. XII, § 11 of the Constitution, which provides that the grant of a
franchise for the operation of a public utility is subject to amendment, alteration or repeal by Congress when the
common good so requires.
II. SUBSTANTIVE ISSUES
A. Claims of Press Freedom, Freedom of Thought and Religious Freedom
The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of newspaper
publishers established for the improvement of journalism in the Philippines. On the other hand, petitioner in G.R.
No. 115781, the Philippine Bible Society (PBS), is a nonprofit organization engaged in the
_______________
40 Phil. 224 (1919).

25
676
6 ANNOTATED
printing and distribution of bibles and other religious articles. Both petitioners claim violations of their rights under
§§ 4 and 5 of the Bill of Rights as a result of the enactment of the VAT Law.
The PPI questions the law insofar as it has withdrawn the exemption previously granted to the press under § 103
(f) of the NIRC. Although the exemption was subsequently restored by administrative regulation with respect to the
circulation income of newspapers, the PPI presses its claim because of the possibility that the exemption may still be
removed by mere revocation of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as
to question the Secretary’s power to grant exemption for two reasons: (1) The Secretary of Finance has no power to
grant tax exemption because this is vested in Congress and requires for its exercise the vote of a majority of all its
members and (2) the Secretary’s duty is to execute the law. § 103 of the NIRC contains a list of transactions
26
exempted from VAT. Among the transactions previously granted exemption were:
(f) Printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin
which appears at regular intervals with fixed prices for subscription and sale and which is devoted
principally to the publication of advertisements.
Republic Act No. 7716 amended § 103 by deleting ¶ (f) with the result that print media became subject to the VAT
with respect to all aspects of their operations. Later, however, based on a memorandum of the Secretary of Justice,
respondent Secretary of Finance issued Revenue Regulations No. 11-94, dated June 27, 1994, exempting the
“circulation income of print media pursuant to § 4 Article III of the 1987 Philippine Constitution guaranteeing
against abridgment of freedom of the press, among others.” The exemption of “circulation income” has left income
from advertisements still subject to the VAT.
It is unnecessary to pass upon the contention that the exemption granted is beyond the authority of the Secretary
of Finance to
________________
Art. VI, § 28(4) provides: “No law granting any tax exemption shall be passed without the concurrence of a majority
26
of all the Members of the Congress.”

677
VOL. 235, AUGUST 25, 1994 677
give, in view of PPI’s contention that even with the exemption of the circulation revenue of print media there is still
an unconstitutional abridgment of press freedom because of the imposition of the VAT on the gross receipts of
newspapers from advertisements and on their acquisition of paper, ink and services for publication. Even on the
assumption that no exemption has effectively been granted to print media transactions, we find no violation of press
freedom in these cases.
To be sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI’s
claim is simply that, as applied to newspapers, the law abridges press freedom. Even with due recognition of its high
estate and its importance in a democratic society, however, the press is not immune from general regulation by the
State. It has been held:
The publisher of a newspaper has no immunity from the application of general laws. He has no special
privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for
contempt of court . . . . Like others, he must pay equitable and nondiscriminatory taxes on his business . . .
.
27
The PPI does not dispute this point, either.

What it contends is that by withdrawing the exemption previously granted to print media transactions involving
printing, publication, importation or sale of newspapers, Republic Act No. 7716 has singled out the press for
discriminatory treatment and that within the class of mass media the law discriminates against print media by giving
broadcast media favored treatment. We have carefully examined this argument, but we are unable to find a
differential treatment of the press by the law, much less any censorial motivation for its enactment. If the press is
now required to pay a value-added tax on its transactions, it is not because it is being singled out, much less targeted,
for special treatment but only because of the removal of the exemption previously granted to it by law. The
withdrawal of exemption is all that is involved in these cases. Other transactions, likewise previously granted
exemption, have been delisted as part of the
_______________
Associated Press v. NLRB, 301 U.S. 103, 132, 81 L.Ed. 953, 961 (1937).
27
678
8 ANNOTATED
scheme to expand the base and the scope of the VAT system. The law would perhaps be open to the charge of
discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is not the case.
The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its claim that
Republic Act No. 7716 subjects the press to discriminatory taxation. In the cases cited, the discriminatory purpose
was clear either from the background of the law or from its operation. For example, in Grosjean v. American Press
Co., the law imposed a license tax equivalent to 2% of the gross receipts derived from advertisements only on
28
newspapers which had a circulation of more than 20,000 copies per week. Because the tax was not based on the
volume of advertisement alone but was measured by the extent of its circulation as well, the law applied only to the
thirteen large newspapers in Louisiana, leaving untaxed four papers with circulation of only slightly less than 20,000
copies a week and 120 weekly newspapers which were in serious competition with the thirteen newspapers in
question. It was well known that the thirteen newspapers had been critical of Senator Huey Long, and the Long-
dominated legislature of Louisiana responded by taxing what Long described as the “lying newspapers” by imposing
on them “a tax on lying.” The effect of the tax was to curtail both their revenue and their circulation. As the U.S.
Supreme Court noted, the tax was “a deliberate and calculated device in the guise of a tax to limit the circulation of
information to which the public is entitled in virtue of the constitutional guaranties.” The case is a classic
29
illustration of the warning that the power to tax is the power to destroy.
In the other case invoked by the PPI, the press was also found to have been singled out because everything was
30
exempt from the “use tax” on ink and paper, except the press. Minnesota imposed a tax on the sales of goods in that
state. To protect the sales tax, it enacted a complementary tax on the privilege of “using, storing or consuming in
that state tangible personal
_______________
297 U.S. 233, 80 L.Ed. 660 (1936).

28
297 U.S. at 250, 80 L.Ed. at 669.

29
Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575, 75 L.Ed.2d 295 (1983).
30
679
VOL. 235, AUGUST 25, 1994 679
property” by eliminating the residents’ incentive to get goods from outside states where the sales tax might be lower.
The Minnesota Star Tribune was exempted from both taxes from 1967 to 1971. In 1971, however, the state
legislature amended the tax scheme by imposing the “use tax” on the cost of paper and ink used for publication. The
law was held to have singled out the press because (1) there was no reason for imposing the “use tax” since the press
was exempt from the sales tax and (2) the “use tax” was laid on an “intermediate transaction rather than the ultimate
retail sale.” Minnesota had a heavy burden of justifying the differential treatment and it failed to do so. In addition,
the U.S. Supreme Court found the law to be discriminatory because the legislature, by again amending the law so as
to exempt the first $100,000 of paper and ink used, further narrowed the coverage of the tax so that “only a handful
of publishers pay any tax at all and even fewer pay any significant amount of tax.” The discriminatory purpose was
31
thus very clear.

More recently, in Arkansas Writers’ Project, Inc. v. Ragland, it was held that a law which taxed general interest
32
magazines but not newspapers and religious, professional, trade and sports journals was discriminatory because
while the tax did not single out the press as a whole, it targeted a small group within the press. What is more, by
differentiating on the basis of contents (i.e.,between general interest and special interests such as religion or sports)
the law became “entirely incompatible with the First Amendment’s guarantee of freedom of the press.”
These cases come down to this: that unless justified, the differential treatment of the press creates risks of
suppression of expression. In contrast, in the cases at bar, the statute applies to a wide range of goods and services.
The argument that, by imposing the VAT only on print media whose gross sales exceeds P480,000 but not more
than P750,000, the law discriminates is
33
________________
460 U.S. at 591, 75 L.Ed.2d at 308-9 (1983).

31
481 U.S. 221, 95 L.Ed.2d 209 (1987).

32
§ 103(t) of the NIRC exempts from the VAT “Sale or lease of goods or properties or the performance of services
33
other than the transactions mentioned in the preceding paragraphs, the gross annual sales and/or receipts [of which] do not
exceed the amount prescribed in regulations to be promulgated by the President upon the recommendation
680
0 ANNOTATED
without merit since it has not been shown that as a result the class subject to tax has been unreasonably narrowed.
The fact is that this limitation does not apply to the press alone but to all sales. Nor is impermissible motive shown
by the fact that print media and broadcast media are treated differently. The press is taxed on its transactions
involving printing and publication, which are different from the transactions of broadcast media. There is thus a
reasonable basis for the classification.
The cases canvassed, it must be stressed, eschew any suggestion that “owners of newspapers are immune from
any forms of ordinary taxation.” The license tax in the Grosjean case was declared invalid because it was “one
single in kind, with a long history of hostile misuse against the freedom of the press.” On the other 34
hand, Minneapolis Star acknowledged that “The First Amendment does not prohibit all regulation of the press [and
that] the States and the Federal Government can subject newspapers to generally applicable economic regulations
without creating constitutional problems.” 35
What has been said above also disposes of the allegations of the PBS that the removal of the exemption of
printing, publication or importation of books and religious articles, as well as their printing and publication, likewise
violates freedom of thought and of conscience. For as the U.S. Supreme Court unanimously held in Jimmy Swaggart
Ministries v. Board of Equalization, the Free Exercise of Religion Clause does not prohibit imposing a generally
36
applicable sales and use tax on the sale of religious materials by a religious organization.
This brings us to the question whether the registration provision of the law, although of general applicability,
37
nonetheless is
_________________
by the Secretary of Finance which shall not be less than Four hundred eighty thousand pesos (P480,000.00) or more
than Seven hundred twenty thousand pesos (P720,000.00) subject to tax under Section 112 of this Code.”
297 U.S. at 250, 80 L.Ed. at 668.
34
460 U.S. at 581, 75 L.Ed.2d at 302.

35
493 U.S. 378, 107 L.Ed.2d 796 (1990).

36
§ 107 of the NIRC provides: “Any person subject to a value added tax under Sections 100 and 102 of this Code shall
37
register with the appropriate Revenue District Officer and pay an annual registration
681
VOL. 235, AUGUST 25, 1994 681
invalid when applied to the press because it lays a prior restraint on its essential freedom. The case of American
Bible Society v. City of Manila is cited by both the PBS and the PPI in support of their contention that the law
38
imposes censorship. There, this Court held that an ordinance of the City of Manila, which imposed a license fee on
those engaged in the business of general merchandise, could not be applied to the appellant’s sale of bibles and other
religious literature. This Court relied on Murdock v. Pennsylvania, in which it was held that, as a license fee is fixed
39
in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually
being imposed as a condition for the exercise of the sect’s right under the Constitution. For that reason, it was held,
the license fee “restrains in advance those constitutional liberties of press and religion and inevitably tends to
suppress their exercise.”40
But, in this case, the fee in § 107, although a fixed amount (P1,000), is not imposed for the exercise of a
privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a
central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject
to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered.
The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a
constitutional right.
________________
fee in the amount of One thousand pesos (P1,000.00) for every separate or distinct establishment or place of business
and every year thereafter on or before the last day of January. Any person just commencing a business subject to the
value-added tax must pay the fee before engaging therein . . .”
101 Phil. 386 (1957).
38
319 U.S. 105, 113, 87 L.Ed. 1292 (1943).

39
319 U.S. at 114, 87 L.Ed. 1292 at 1298. For the same reason, in People v. Korins, 385 N.Y.S. 2d 474 (1976) a
40
decision of the city court of Utica, Oneida County held that to apply an ordinance requiring a business license to be
obtained before a person could sell newspapers in the streets would be to impose a prior restraint on press freedom
because “a newspaper is not in the same category as pineapple or a soap powder or a pair of shoes” whose sale may be
conditioned on the possession of a business license.
682
2 ANNOTATED
For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it offends the free speech,
press and freedom of religion guarantees of the Constitution to be without merit. For the same reasons, we find the
claim of the Philippine Educational Publishers Association (PEPA) in G.R. No. 115931 that the increase in the price
of books and other educational materials as a result of the VAT would violate the constitutional mandate to the
government to give priority to education, science and technology (Art. II, § 17) to be untenable.
B. Claims of Regressivity, Denial of Due Process, Equal Protection, and Impairment of
Contracts
There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press
and religion. The possible “chilling effect” which it may have on the essential freedom of the mind and conscience
and the need to assure that the channels of communication are open and operating importunately demand the
exercise of this Court’s power of review.
There is, however, no justification for passing upon the claims that the law also violates the rule that taxation
must be progressive and that it denies petitioners’ right to due process and the equal protection of the laws. The
reason for this different treatment has been cogently stated by an eminent authority on constitutional law thus:
“[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when
property is imperiled it is the lawmakers’ judgment that commands respect. This dual standard may not precisely
reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values
within the due process clause.” 41
Indeed, the absence of threat of immediate harm makes the need for judicial intervention less evident and
underscores the essential nature of petitioners’ attack on the law on the grounds of regressivity, denial of due process
and equal protection and
________________
P.A. FREUND, ON UNDERSTANDING THE SUPREME COURT II (1950), quoted in Ermita, Malate Hotel and
41
Motel Operators Ass’n v. City Mayor, 21 SCRA 449, 459 (1967).

683
VOL. 235, AUGUST 25, 1994 683
impairment of contracts as a mere academic discussion of the merits of the law. For the fact is that there have even
been no notices of assessments issued to petitioners and no determinations at the administrative levels of their claims
so as to illuminate the actual operation of the law and enable us to reach sound judgment regarding so fundamental
questions as those raised in these suits.
Thus, the broad argument against the VAT is that it is regressive and that it violates the requirement that “The
rule of taxation shall be uniform and equitable [and] Congress shall evolve a progressive system of
taxation.” Petitioners in G.R. No. 115781 quote from a paper, entitled “VAT Policy Issues: Structure, Regressivity,
42
Inflation and Exports” by Alan A. Tait of the International Monetary Fund, that “VAT payment by low-income
households will be a higher proportion of their incomes (and expenditures) than payments by higher-income
households. That is, the VAT will be regressive.” Petitioners contend that as a result of the uniform 10% VAT, the
tax on consumption goods of those who are in the higher-income bracket, which before were taxed at a rate higher
than 10%, has been reduced, while basic commodities, which before were taxed at rates ranging from 3% to 5%, are
now taxed at a higher rate.
Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by respondents that in
fact it distributes the tax burden to as many goods and services as possible particularly to those which are within the
reach of higher-income groups, even as the law exempts basic goods and services. It is thus equitable. The goods
and properties subject to the VAT are those used or consumed by higher-income groups. These include real
properties held primarily for sale to customers or held for lease in the ordinary course of business, the right or
privilege to use industrial, commercial or scientific equipment, hotels, restaurants and similar places, tourist buses,
and the like. On the other hand, small business establishments, with annual gross sales of less than P500,000, are
exempted. This,
_________________
Art. VI, § 28(1). Related to this argument is the claim that Republic Act No. 7716 likewise infringes the Due Process
42
and Equal Protection Clauses of the Bill of Rights, Art. III, § 1(1).
684
4 ANNOTATED
according to respondents, removes from the coverage of the law some 30,000 business establishments. On the other
hand, an occasional paper of the Center for Research and Communication cites a NEDA study that the VAT has
43
minimal impact on inflation and income distribution and that while additional expenditure for the lowest income
class is only P301 or 1.49% a year, that for a family earning P500,000 a year or more is P8,340 or 2.2%.
Lacking empirical data on which to base any conclusion regarding these arguments, any discussion whether the
VAT is regressive in the sense that it will hit the “poor” and middle-income group in society harder than it will the
“rich,” as the Cooperative Union of the Philippines (CUP) claims in G.R. No. 115873, is largely an academic
exercise. On the other hand, the CUP’s contention that Congress’ withdrawal of exemption of producers
cooperatives, marketing cooperatives, and service cooperatives, while maintaining that granted to electric
cooperatives, not only goes against the constitutional policy to promote cooperatives as instruments of social justice
(Art. XII, § 15) but also denies such cooperatives the equal protection of the law is actually a policy argument. The
legislature is not required to adhere to a policy of “all or none” in choosing the subject of taxation.44
Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA), petitioner in G.R.
115754, that the VAT will reduce the mark up of its members by as much as 85% to 90% any more concrete. It is a
mere allegation. On the other hand, the claim of the Philippine Press Institute, petitioner in G.R. No. 115544, that
the VAT will drive some of its members out of circulation because their profits from advertisements will not be
enough to pay for their tax liability, while purporting to be based on the financial statements of the newspapers in
question, still falls short of the establishment of facts by evidence so necessary for adjudicating the question whether
the tax is oppressive and confiscatory.
Indeed, regressivity is not a negative standard for courts to enforce. What Congress is required by the
Constitution to do is to
_______________
Neri, “In Support of the Expanded Value-Added Tax,” (CRC Economic Policy Papers No. 5 1994) pp. 3-4.
43
Cf. Lutz v. Araneta, 98 Phil. 148, 153 (1955).

44
685
VOL. 235, AUGUST 25, 1994 685
“evolve a progressive system of taxation.” This is a directive to Congress, just like the directive to it to give priority
to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and political
inequalities (Art. XIII, § 1), or for the promotion of the right to “quality education” (Art. XIV, § 1). These
provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights.
At all events, our 1988 decision in Kapatiran should have laid to rest the questions now raised against the VAT.
45
There similar arguments made against the original VAT Law (Executive Order No. 273) were held to be
hypothetical, with no more basis than newspaper articles which this Court found to be “hearsay and [without]
evidentiary value.” As Republic Act No. 7716 merely expands the base of the VAT system and its coverage as
provided in the original VAT Law, further debate on the desirability and wisdom of the law should have shifted to
Congress.
Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the
VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would
violate the constitutional provision that “No law impairing the obligation of contracts shall be passed.” It is enough
to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the
taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between
parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of
the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government
which retains adequate authority to secure the peace and good order of society. 46
In truth, the Contract Clause has never been thought as a limitation on the exercise of the State’s power of
taxation save
_________________
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371.

45
Cf. Philippine American Life Ins. Co. v. Auditor General, 22 SCRA 135 (1968).

46
686
6 ANNOTATED
only where a tax exemption has been granted for a valid consideration. Such is not the case of PAL in G.R. No.
47
115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is that the removal
of its tax exemption cannot be made by a general, but only by a specific, law.
The substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the
lack of a concrete record. We accept that this Court does not only adjudicate private cases; that public actions by
“non-Hohfeldian” or ideological plaintiffs are now cognizable provided they meet the standing requirement of the
48
Constitution; that under Art. VIII, § 1, ¶ 2 the Court has a “special function” of vindicating constitutional rights.
Nonetheless the feeling cannot be escaped that we do not have before us in these cases a fully developed factual
record that alone can impart to our adjudication the impact of actuality to insure that decision-making is informed
49
and well grounded. Needless to say, we do not have power to render advisory opinions or even jurisdiction over
petitions for declaratory judgment. In effect we are being asked to do what the Conference Committee is precisely
accused of having done in these cases—to sit as a third legislative chamber to review legislation.
________________
See E. M. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 560-561 (2d Ed., 1977).

47
The term is Professor Jaffe’s (JUDICIAL CONTROL OF ADMINISTRATIVE ACTION (1965) adopted by Justice
48
Harlan in his dissent in Flast v. Cohen, 392 U.S. 83, 119-120, L.Ed.2d 947, 973 (1968) to distinguish between the personal
and proprietary interest of traditional plaintiffs and the public interest of a citizen suing in a public action. The term was
mentioned by some members of this Court in the Lotto case (Kilosbayan, Inc. v. Guingona, G.R. No. 113375, May 5,
1994).
Compare Justice Laurel: “Even then, this power of judicial review is limited to actual cases and controversies to be
49
exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.” Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
687
VOL. 235, AUGUST 25, 1994 687
We are told, however, that the power of judicial review is not so much power as it is duty imposed on this Court by
the Constitution and that we would be remiss in the performance of that duty if we decline to look behind the
barriers set by the principle of separation of powers. Art. VIII, § 1, ¶ 2 is cited in support of this view:
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.
To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in 1803, to justify the
assertion of this power in Marbury v. Madison:
It is emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each. 50
Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission:

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 obligationassigned 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. 51
This conception of the judicial power has been affirmed in several cases of this Court following Angara.
52
_______________
1 Cranch 137, 2 L.Ed. 60(1803) (emphasis added).

50
Supra note 49 (emphasis added).

51
People v. Vera, 65 Phil. 56, 94 (1937); Tañada v. Cuenco, 103 Phil. 1051, 1061-2 (1957); Macias v. COMELEC, 3
52
SCRA 1, 7-8 (1961).

688
8 ANNOTATED
It does not add anything, therefore, to invoke this “duty” to justify this Court’s intervention in what is essentially a
case that at best is not ripe for adjudication. That duty must still be performed in the context of a concrete case or
controversy, as Art. VIII, § 5(2) clearly defines our jurisdiction in terms of “cases,” and nothing but “cases.” That
the other departments of the government may have committed a grave abuse of discretion is not an independent
ground for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement
can in the long run only result in undermining our authority as a court of law. For, as judges, what we are called
upon to render is judgment according to law, not according to what may appear to be the opinion of the day.
____________________________________
In the preceding pages we have endeavored to discuss, within limits, the validity of Republic Act No. 7716 in its
formal and substantive aspects as this has been raised in the various cases before us. To sum up, we hold:
1. (1)That the procedural requirements of the Constitution have been complied with by Congress in the
enactment of the statute;
2. (2)That judicial inquiry whether the formal requirements for the enactment of statutes—beyond those
prescribed by the Constitution—have been observed is precluded by the principle of separation of powers;
3. (3)That the law does not abridge freedom of speech, expression or the press, nor interfere with the free
exercise of religion, nor deny to any of the parties the right to an education; and
4. (4)That, in view of the absence of a factual foundation of record, claims that the law is regressive,
oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are
prematurely raised and do not justify the grant of prospective relief by writ of prohibition.
WHEREFORE, the petitions in these cases are DISMISSED.

689
VOL. 235, AUGUST 25, 1994 689
Bidin, Quiason and Kapunan, JJ., concur.
Narvasa (C.J.) and Melo, J., Concur in separate opinions.
Cruz, Padilla and Vitug, JJ., See separate opinions.
Feliciano, J., I join in both the majority opinion by Mendoza, J. and the concurring opinion of
Narvasa, C.J.
Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ., See dissenting opinions.
SEPARATE OPINION
NARVASA, C.J.:
I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr. Justice Vicente V.
Mendoza. I write this separate opinion to express my own views relative to the procedural issues raised by the
various petitions and dealt with by some other Members of the Court in their separate opinions.
By their very nature, it would seem, discussions of constitutional issues prove fertile ground for a not
uncommon phenomenon: debate marked by passionate partisanship amounting sometimes to impatience with
adverse views, an eagerness on the part of the proponents on each side to assume the role of, or be perceived as,
staunch defenders of constitutional principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in
this, obviously, is a diminution of objectivity—that quality which, on the part of those charged with the duty and
authority of interpreting the fundamental law, is of the essence of their great function. For the Court, more perhaps
than for any other person or group, it is necessary to maintain that desirable objectivity. It must make certain that on
this as on any other occasion, the judicial function is meticulously performed, the facts ascertained as
comprehensively and as accurately as possible, all the issues particularly identified, all the arguments clearly
understood; else, it may itself be accused, by its own members or by others, of a lack of adherence to, or a careless
observance of, its own procedures, the signatures of its individual members on its enrolled verdicts notwithstanding.
690
0 ANNOTATED
In the matter now before the Court, and whatever reservations some people may entertain about their intellectual
limitations or moral scruples, I cannot bring myself to accept the thesis which necessarily implies that the members
of our august Congress, in enacting the expanded VAT law, exposed their ignorance, or indifference to the
observance, of the rules of procedure set down by the Constitution or by their respective chambers, or what is worse,
deliberately ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some purpose
other than the public weal; or that a few of their fellows, acting as a bicameral conference committee, by devious
schemes and cunning maneuvers, and in conspiracy with officials of the Executive Department and others,
succeeded in “pulling the wool over the eyes” of all their other colleagues and foisting on them a bill containing
provisions that neither chamber of our bicameral legislature conceived or contemplated. This is the thesis that the
petitioners would have this Court approve. It is a thesis I consider bereft of any factual or logical foundation.
Other than the bare declarations of some of the petitioners, or arguments from the use and import of the
language employed in the relevant documents and records, there is no evidence before the Court adequate to support
a finding that the legislators concerned, whether of the upper or lower chamber, acted otherwise than in good faith,
in the honest discharge of their functions, in the sincere belief that the established procedures were being regularly
observed or, at least, that there occurred no serious or fatal deviation therefrom. There is no evidence on which
reasonably to rest a conclusion that any executive or other official took part in or unduly influenced the proceedings
before the bicameral conference committee, or that the members of the latter were motivated by a desire to
surreptitiously introduce improper revisions in the bills which they were required to reconcile, or that after
agreement had been reached on the mode and manner of reconciliation of the “disagreeing provisions,” had resorted
to stratagems or employed under-handed ploys to ensure their approval and adoption by either House. Neither is
there any proof that in voting on the Bicameral Conference Committee (BCC) version of the reconciled bills, the
members of the Senate and the House did so in ignorance of, or without understanding, the contents thereof or the
bills therein reconciled.
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VOL. 235, AUGUST 25, 1994 691
Also unacceptable is the theory that since the Constitution requires appropriation and revenue bills to originate
exclusively in the House of Representatives, it is improper if not unconstitutional for the Senate to formulate, or
even think about formulating, its own draft of this type of measure in anticipation of receipt of one transmitted by
the lower Chamber. This is specially cogent as regards much-publicized suggestions for legislation (like the
expanded VAT Law) emanating from one or more legislators, or from the Executive Department, or the private
sector, etc. which understandably could be expected to forthwith generate much Congressional cogitation.
Exclusive origination, I submit, should have no reference to time of conception. As a practical matter,
origination should refer to the affirmative act which effectively puts the bicameral legislative procedure in
motion, i.e., the transmission by one chamber to the other of a bill for its adoption. This is the purposeful act which
sets the legislative machinery in operation to effectively lead to the enactment of a statute. Until this transmission
takes place, the formulation and discussions, or the reading for three or more times of proposed measures in either
chamber, would be meaningless in the context of the activity leading towards concrete legislation. Unless
transmitted to the other chamber, a bill prepared by either house cannot possibly become law. In other words, the
first affirmative, efficacious step, the operative act as it were, leading to actual enactment of a statute, is the
transmission of a bill from one house to the other for action by the latter. This is the origination that is spoken of in
the Constitution in its Article VI, Section 24, in reference to appropriation, revenue, or tariff bills, etc.
It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this before a similar
activity takes place in the House. This is of no moment, so long as those measures or bills remain in the Senate and
are not sent over to the House. There is no origination of revenue or tax measures by the Senate in this case.
However, once the House completes the drawing up of a similar tax measure in accordance with the prescribed
procedure, even if this is done subsequent to the Senate’s own measure—indeed, even if this be inspired by
information that a measure of the same nature or on the same subject has been formulated in the Senate—and after
third
692
2 ANNOTATED
reading transmits its bill to the Senate, there is origination by (or in) the House within the contemplation of the
Constitution.
So it is entirely possible, as intimated, that in expectation of the receipt of a revenue or tax bill from the House
of Representatives, the Senate commences deliberations on its own concept of such a legislative measure. This,
possibly to save time, so that when the House bill reaches it, its thoughts and views on the matter are already formed
and even reduced to writing in the form of a draft statute. This should not be thought illegal, as interdicted by the
Constitution. What the Constitution prohibits is for the Senate to begin the legislative process first, by sending its
own revenue bill to the House of Representatives for its consideration and action. This is the initiation that is
prohibited to the Senate.
But petitioners claim that this last was what in fact happened, that the bill that went through the legislative mill
and was finally approved as R.A. No. 7716, was the Senate version, SB 1630. This is disputed by the respondents.
They claim it was House Bill 11197 that, after being transmitted to the Senate, was referred after first reading to its
Committee on Ways and Means; was reported out by said Committee; underwent second and third readings, was
sent to the bicameral conference committee and then, after appropriate proceedings therein culminating in extensive
amendments thereof, was finally approved by both Houses and became the Expanded VAT Law.
On whose side does the truth lie? If it is not possible to make that determination from the pleadings and records
before this Court, shall it require evidence to be presented? No, on both law and principle. The Court will reject a
case where the legal issues raised, whatever they may be, depend for their resolution on still unsettled questions of
fact. Petitioners may not, by raising what are concededly novel and weighty constitutional questions, compel the
Court to assume the role of a trier of facts. It is on the contrary their obligation, before raising those questions to this
Court, to see to it that all issues of fact are settled in accordance with the procedures laid down by law for proof of
facts. Failing this, petitioners would have only themselves to blame for a peremptory dismissal.
Now, what is really proven about what happened to HB 11197 after it was transmitted to the Senate? It seems to
be admitted on
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VOL. 235, AUGUST 25, 1994 693
all sides that after going through first reading, HB 11197 was referred to the Committee on Ways and Means chaired
by Senator Ernesto Herrera.
It is however surmised that after this initial step, HB 11197 was never afterwards deliberated on in the Senate,
that it was there given nothing more than a “passing glance,” and that it never went through a proper second and
third reading. There is no competent proof to substantiate this claim. What is certain is that on February 7, 1994, the
Senate Committee on Ways and Means submitted its Report (No. 349) stating that HB 11197 was considered, and
recommending that SB 1630 be approved “in substitution of S.B. No. 1129, taking into consideration P.S. Res. No.
734 and H.B. No. 11197.” This Report made known to the Senate, and clearly indicates, that H.B. No. 11197 was
1
indeed deliberated on by the Committee; in truth, as Senator Herrera pointed out, the BCC later “agreed to adopt (a
broader coverage of the VAT) which is closely adhering to the Senate version ** ** with some new provisions or
amendments.” The plain implication is that the Senate Committee had indeed discussed HB 11197 in comparison
with the inconsistent parts of SB 1129 and afterwards proposed amendments to the former in the form of a new bill
(No. 1630) more closely akin to the Senate bill (No. 1129).
And it is as reasonable to suppose as not that later, during the second and third readings on March 24, 1994, the
Senators, assembled as a body, had before them copies of HB 11197 and SB 1129, as well as of the Committee’s
new “SB 1630” that had been recommended for their approval, or at the very least were otherwise perfectly aware
that they were considering the particular provisions of these bills. That there was such a deliberation in the Senate on
HB 11197 in light of inconsistent portions of SB 1630, may further be necessarily inferred from the request, made
by the Senate on the same day, March 24, 1994, for the convocation of a bicameral conference committee to
reconcile “the disagreeing provisions of said bill (SB 1630) and House Bill No. 11197,” a
________________
Resolution “Urging the Senate Committee on Ways and Means to Study the Proposal to Exempt Local Movie
1
Producers from the Payment of the Value-Added Tax as an Incentive to the Production of Quality and Wholesome
Filipino Movies Whenever they Feature an All-Filipino Cast of Actors and Actresses.”
694
4 ANNOTATED
request that could not have been made had not the Senators more or less closely examined the provisions of HB
11197 and compared them with those of the counterpart Senate measures.
Were the proceedings before the bicameral conference committee fatally flawed? The affirmative is suggested
because the committee allegedly overlooked or ignored the fact that SB 1630 could not validly originate in the
Senate, and that HB 11197 and SB 1630 never properly passed both chambers. The untenability of these contentions
has already been demonstrated. Now, demonstration of the indefensibility of other arguments purporting to establish
the impropriety of the BCC proceedings will be attempted.
There is the argument, for instance, that the conference committee never used HB 11197 even as “frame of
reference” because it does not appear that the suggestion therefor (made by House Panel Chairman Exequiel Javier
at the bicameral conference committee’s meeting on April 19, 1994, with the concurrence of Senator Maceda) was
ever resolved, the minutes being regrettably vague as to what occurred after that suggestion was made. It is,
however, as reasonable to assume that it was, as it was not, given the vagueness of the minutes already alluded to. In
fact, a reading of the BCC Report persuasively demonstrates that HB 11197 was not only utilized as a “frame of
reference” but actually discussed and deliberated on.
Said BCC Report pertinently states:2
“CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113SD AND 114 OF TITLE
V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
________________
Italics supplied.
2
695
VOL. 235, AUGUST 25, 1994 695
and Senate Bill No. 1630 entitled:
99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE
V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114, 116, 119 AND
120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND
FOR OTHER PURPOSES
having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the conferees.
Approved.”
The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned ahead of Senate
Bill No. 1630; graphically shows the very close identity of the subjects of both bills (indicated in their respective
titles); and clearly says that the committee met in “full and free conference” on the “disagreeing provisions” of
both bills (obviously in an effort to reconcile them); and that reconciliation of said “disagreeing provisions” had
been effected, the BCC having agreed that “House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the conferees.”
It may be concluded, in other words, that, conformably to the procedure provided in the Constitution with which
all the Members of the bicameral conference committee cannot but be presumed to be familiar, and no proof to the
contrary having been adduced on the point, it was the original bill (HB 11197) which said body had considered and
deliberated on in detail, reconciled or harmonized with SB 1630, and used as basis for drawing up the amended
version eventually reported out and submitted to both houses of Congress.
It is further contended that the BCC was created and convoked prematurely, that SB 1630 should first have been
sent to the House of Representatives for concurrence. It is maintained, in
696
6 ANNOTATED
other words, that the latter chamber should have refused the Senate request for a bicameral conference committee to
reconcile the “disagreeing provisions” of both bills, and should have required that SB 1630 be first transmitted to it.
This, seemingly, is nit-picking given the urgency of the proposed legislation as certified by the President (to both
houses, in fact). Time was of the essence, according to the President’s best judgment—as regards which absolutely
no one in either chamber of Congress took exception, general acceptance being on the contrary otherwise manifested
—and that judgment the Court will not now question. In light of that urgency, what was so vital or indispensable
about such a transmittal that its absence would invalidate all else that had been done towards enactment of the law,
completely escapes me, specially considering that the House had immediately acceded without demur to the request
for convocation of the conference committee.
What has just been said should dispose of the argument that the statement in the enrolled bill, that “This Act
which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally passed by the House of
Representatives and the Senate on April 27, 1994 and May 2, 1994,” necessarily signifies that there were two (2)
bills separately introduced, retaining their independent existence until they reached the bicameral conference
committee where they were consolidated, and therefore, the VAT law did not originate exclusively in the House
having originated in part in the Senate as SB 1630, which bill was not embodied in but merely merged with HB
11197, retaining its separate identity until it was joined by the BCC with the house measure. The more logical, and
fairer, course is to construe the expression, “consolidation of House Bill No. 11197 and Senate Bill No. 1630” in the
context of accompanying and contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that
the committee met to reconcile the disagreeing provisions of the two bills, “and after full and free conference” on
the matter, agreed and so recommended that “House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the conferees;” and (b) the
averment of Senator Herrera, in the Report of the Ways and Means Committee, supra, that the committee had
actually “considered” (discussed)
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VOL. 235, AUGUST 25, 1994 697
HB No. 11197 and taken it “into consideration” in recommending that its own version of the measure (SB 1630) be
the one approved.
That the Senate might have drawn up its own version of the expanded VAT bill, contemporaneously with or
even before the House did, is of no moment. It bears repeating in this connection that no VAT bill ever originated in
the Senate; neither its SB 1129 or SB 1630 or any of its drafts was ever officially transmitted to the House as an
initiating bill which, as already pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to
the Senate, underwent first reading, was referred to Committee on Ways and Means and there discussed in relation
to and in comparison with the counterpart Senate version or versions—the mere formulation of which was, as also
already discussed, not prohibited to it—and afterwards considered by the Senate itself, also in connection with SB
1630, on second and third readings. HB 11197 was in the truest sense, the originating bill.
An issue has also arisen respecting the so-called “enrolled bill doctrine” which, it is said, whatever sacrosanct
status it might originally have enjoyed, is now in bad odor with modern scholars on account of its imputed rigidity
and unrealism; it being also submitted that the ruling in “Mabanag v. Lopez Vito (78 Phil. 1) and the cases
reaffirming it, is no longer good law, it being based on a provision of the Code of Civil Procedure long since
3
stricken from the statute books.

I would myself consider the “enrolled bill” theory as laying down a presumption of so strong a character as to be
well nigh absolute or conclusive, fully in accord with the familiar and fundamental philosophy of separation of
powers. The result, as far as I am concerned, is to make discussion of the enrolled bill principle purely academic; for
as already pointed out, there is no proof worthy of the name of any facts to justify its reexamination and, possibly,
disregard.
The other question is, what is the nature of the power given to a bicameral conference committee of reconciling
differences
_________________
Giving “conclusive” character to copies of Acts of the Philippine Commission which have been signed by its
3
presiding officers and secretaries.

698
8 ANNOTATED
between, or “disagreeing provisions” in, a bill originating from the House in relation to amendments proposed by the
Senate—whether as regards some or all of its provisions? Is the mode of reconciliation, subject to fixed procedure
and guidelines? What exactly can the committee do, or not do? Can it only clarify or revise provisions found in
either Senate or House bill? Is it forbidden to propose additional or new provisions, even on matters necessarily or
reasonably connected with or germane to items in the bills being reconciled?
In answer, it is postulated that the reconciliation function is quite limited. In these cases, the conference
committee should have confined itself to reconciliation of differences or inconsistencies only by (a) restoring
provisions of HB 11197 eliminated by SB 1630, or (b) sustaining wholly or partly the Senate amendments, or (c) as
a compromise, agreeing that neither provisions nor amendments be carried into the final form of HB 11197 for
submission to both chambers of the legislature.
The trouble is, it is theorized, the committee incorporated activities or transactions which were not within the
contemplation of both bills; it made additions and deletions which did not enjoy the enlightenment of initial
committee studies; it exercised what is known as an “ex post veto power” granted to it by no law, rule or regulation,
a power that in truth is denied to it by the rules of both the Senate and the House. In substantiation, the Senate rule is
cited, similar to that of the House, providing that “differences shall be settled by a conference committee” whose
report shall contain “detailed and sufficiently explicit statement of the changes in or amendments to the subject
measure, ** (to be) signed by the conferees;” as well as the “Jefferson’s Manual,” adopted by the Senate as
supplement to its own rules, directing that the managers of the conference must confine themselves to differences
submitted to them; they may not include subjects not within the disagreements even though germane to a question in
issue.”
It is significant that the limiting proviso in the relevant rules has been construed and applied as directory, not
mandatory. During the oral argument, counsel for petitioners admitted that the practice for decades has been for
bicameral conference committees to include such provisions in the reconciled bill as they believed to be germane or
necessary and acceptable to both
699
VOL. 235, AUGUST 25, 1994 699
chambers, even if not within any of the “disagreeing provisions,” and the reconciled bills, containing such
provisions had invariably been approved and adopted by both houses of Congress. It is a practice, they say, that
should be stopped. But it is a practice that establishes in no uncertain manner the prevailing concept in both houses
of Congress of the permissible and acceptable modes of reconciliation that their conference committees may adopt,
one whose undesirability is not all that patent if not, indeed, incapable of unquestionable demonstration. The fact is
that conference committees only take up bills which have already been freely and fully discussed in both chambers
of the legislature, but as to which there is need of reconciliation in view of “disagreeing provisions” between them;
and both chambers entrust the function of reconciling the bills to their delegates at a conference committee with full
awareness, and tacit consent, that conformably with established practice unquestioningly observed over many years,
new provisions may be included even if not within the “disagreeing provisions” but of which, together with other
changes, they will be given detailed and sufficiently explicit information prior to voting on the conference
committee version.
In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A. Cruz,
promulgated on November 11, 1993 (G.R. No. 105371, The Philippine Judges Association, etc., et al. v. Hon. Pete
Prado, etc., et al.), should leave no doubt of the continuing vitality of the enrolled bill doctrine and give an insight
into the nature of the reconciling function of bicameral conference committees. In that case, a bilateral conference
committee was constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a
“reconciled” measure that was submitted to and approved by both chambers of Congress and ultimately signed into
law by the President, as R.A. No. 7354. A provision in this statute (removing the franking privilege from the courts,
among others) was assailed as being an invalid amendment because it was not included in the original version of
either the senate or the house bill and hence had generated no disagreement between them which had to be
reconciled. The Court held:
700
0 ANNOTATED
“While it is true that a conference committee is the mechanism for compromising differences between the
Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described
thus:
A conference committee may deal generally with the subject matter or it may be limited to resolving the precise
differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction,
legislative custom severely limits the freedom with which new subject matter can be inserted into the conference
bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These
excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is
symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In A
Nutshell, 1987 Ed., p. 81).
It is a matter of record that the Conference Committee Report on the bill in question was returned to and duly
approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification
by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having
been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C.
Aquino on April 3, 1992.
Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the approval of
a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez (7 SCRA 347) laid down
the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be entered in the
journals like the yeas and nays on the final reading of the bill) (Mabanag v. Lopez Vito, 78 Phil. 1). The journals are
themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. v. Pons (34 Phil.
729), where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said,
clear and explicit, would be to violate both the letter and spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and independent department of
the Government, and to interfere with the legitimate powers and functions of the Legislature. Applying
these principles, we shall decline to look into the petitioners’
701
VOL. 235, AUGUST 25, 1994 701
charges that an amendment was made upon the last reading of the bill that eventually R.A. No. 7354 and
that copies thereof in its final form were not distributed among the members of each House. Both the
enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
Article VI, Sec. 26 (2) of the Constitution. We are bound by such official assurances from a coordinate
department of the government, to which we owe, at the very least, a becoming courtesy.”
Withal, an analysis of the changes made by the conference committee in HB 11197 and SB 1630 by way of
reconciling their “disagreeing provisions,”—assailed by petitioners as unauthorized or incongruous—reveals that
many of the changes related to actual “disagreeing provisions,” and that those that might perhaps be considered as
entirely new are nevertheless necessarily or logically connected with or germane to particular matters in the bills
being reconciled.
For instance, the change made by the bicameral conference committee (BCC) concerning amendments to
Section 99 of the National Internal Revenue Code (NIRC)—the addition of “lessors of goods or properties and
importers of goods”—is really a reconciliation of disagreeing provisions, for while HB 11197 mentions as among
those subject to tax, “one who sells, barters, or exchanges goods or properties and any person who leases personal
properties,” SB 1630 does not. The change also merely clarifies the provision by providing that the contemplated
taxpayers includes “importers.” The revision as regards the amendment to Section 100, NIRC, is also simple
reconciliation, being nothing more than the adoption by the BCC of the provision in HB 11197 governing the sale of
gold to Bangko Sentral, in contrast to SB 1630 containing no such provision. Similarly, only simple reconciliation
was involved as regards approval by the BCC of a provision declaring as not exempt, the sale of real properties
primarily held for sale to customers or held for lease in the ordinary course of trade or business, which provision is
found in HB 11197 but not in SB 1630; as regards the adoption by the BCC of a provision on life insurance
business, contained in SB 1630 but not found in HB 11197; as regards adoption by the BCC of the provision in SB
1630 for deferment of tax on certain goods and services for no longer than 3 years, as to which there was no
counterpart provision in SB 11197; and as regards the fixing of a
702
2 ANNOTATED
period for the adoption of implementing rules, a period being prescribed in SB 1630 and none in HB 11197.
In respect of other revisions, it would seem that questions logically arose in the course of the discussion of
specific “disagreeing provisions” to which answers were given which, because believed acceptable to both houses of
Congress, were placed in the BCC draft. For example, during consideration of radio and television time (Sec. 100,
NIRC) dealt with in both House and Senate bills, the question apparently came up, the relevance of which is
apparent on its face, relative to satellite transmission and cable television time. Hence, a provision in the BCC bill
on the matter. Again, while deliberating on the definition of goods or properties in relation to the provision
subjecting sales thereof to tax, a question apparently arose, logically relevant, about real properties intended to be
sold by a person in economic difficulties, or because he wishes to buy a car, i.e., not as part of a business, the BCC
evidently resolved to clarify the matter by excluding from the tax, “real properties held primarily for sale to
customers or held for lease in the ordinary course of business.” And in the course of consideration of the term, sale
or exchange of services (Sec. 102, NIRC), the inquiry most probably was posed as to whether the term should be
understood as including other services: e.g., services of lessors of property whether real or personal, of
warehousemen, of keepers of resthouses, pension houses, inns, resorts, or of common carriers, etc., and presumably
the BCC resolved to clarify the matter by including the services just mentioned. Surely, changes of this nature are
obviously to be expected in proceedings before bicameral conference committees and may even be considered grist
for their mill, given the history of such BCCs and their general practice here and abroad.
In any case, all the changes and revisions, and deletions, made by the conference committee were all
subsequently considered by and approved by both the Senate and the House, meeting and voting separately. It is an
unacceptable theorization, to repeat, that when the BCC report and its proposed bill were submitted to the Senate
and the House, the members thereof did not bother to read, or what is worse, having read did not understand, what
was before them, or did not realize that there were new provisions in the reconciled version unrelated to any
“disagreeing provisions,” or that said new provisions or revisions were effectively concealed
703
VOL. 235, AUGUST 25, 1994 703
from them.
Moreover, it certainly was entirely within the power and prerogative of either legislative chamber to reject the
BCC bill and require the organization of a new bicameral conference committee. That this option was not exercised
by either house only proves that the BCC measure was found to be acceptable as in fact it was approved and adopted
by both chambers.
I vote to DISMISS the petitions for lack of merit.
SEPARATE OPINION
CRUZ, J.:
It is a curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the lawyers who argued
for the petitioners—two of them former presidents of the Senate and the third also a member of that body—all asked
this Court to look into the internal operations of their Chamber and correct the irregularities they claimed had been
committed there as well as in the House of Representatives and in the bicameral conference committee.
While a member of the legislature would normally resist such intervention and invoke the doctrine of separation
of powers to protect Congress from what he would call judicial intrusion, these counsel practically implored the
Court to examine the questioned proceedings and to this end go beyond the journals of each House, scrutinize the
minutes of the committee, and investigate all other matters relating to the passage of the bill (or bills) that eventually
became R.A. No. 7716.
In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the Court upon itself
in the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to consider extraneous evidence to disprove the
recitals in the journals of the Philippine Legislature that it had adjourned sine die at midnight of February 28, 1914.
Although it was generally known then that the special session had actually exceeded the deadline fixed by the
Governor-General in his proclamation, the Court chose to be guided solely by the legislative journals, holding
significantly as follows:
704
4 ANNOTATED
* * * From their very nature and object, the records of the legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legis-lature, when they are, as
we have said, clear and explicit, would be to violate both the letter and the spirit of the organic laws by
which the Philippine Government was brought into existence, to invade a coordinate and independent
department of the Govern-ment, and to interfere with the legitimate powers and functions of the
Legislature. But counsel in his argument says that the public knows that the Assembly’s clock was
stopped on February 28, 1914, at midnight and left so until the determination of the discussion of all
pending matters. Or, in other words, the hands of the clock were stayed in order to enable the Assembly
to effect an adjournment apparently within the fixed time by the Governor’s proclamation for the
expiration of the special session, in direct violation of the Act of Congress of July 1, 1902. If the clock
was, in fact, stopped, as here suggested, “the resultant evil might be slight as compared with that of
altering the probative force and character of legislative records, and making the proof of legislative action
depend upon uncertain oral evidence, liable to loss by death or absence, and so imperfect on account of
the treachery of memory.”
* * * The journals say that the Legislature adjourned at 12 midnight on February 28, 1914. This settles
the question, and the court did not err in declining to go beyond the journals.
As one who has always respected the rationale of the separation of powers, I realize only too well the serious
implications of the relaxation of the doctrine except only for the weightiest of reasons. The lowering of the barriers
now dividing the three major branches of the government could lead to invidious incursions by one department into
the exclusive domains of the other departments to the detriment of the proper discharge of the functions assigned to
each of them by the Constitution.
Still, while acknowledging the value of tradition and the reasons for judicial non-interference announced in
Pons, I am not disinclined to take a second look at the ruling from a more pragmatic viewpoint and to tear down, if
we must, the iron curtain it has hung, perhaps improvidently, around the proceedings of the legislature.
I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it should not suffice
for Congress to simply say that the rules have been observed and flatly consider the matter closed. It does not have
to be as final as that.
705
VOL. 235, AUGUST 25, 1994 705
I would imagine that the judiciary, and particularly this Court, should be able to verify that statement and determine
for itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed.
In fact, the Court has already said that the question of whether certain procedural rules have been followed is
justiciable rather than political because what is involved is the legality and not the wisdom of the act in question. So
we ruled in Sanidad v. Commission on Elections (73 SCRA 333) on the amendment of the Constitution; in Daza v.
Singson (180 SCRA 496) on the composition of the Commission on Appointments; and in the earlier case of Tañada
v. Cuenco (103 Phil. 1051) on the organization of the Senate Electoral Tribunal, among several other cases.
By the same token, the ascertainment of whether a bill underwent the obligatory three readings in both Houses
of Congress should not be considered an invasion of the territory of the legislature as this would not involve an
inquiry into its discretion in approving the measure but only the manner in which the measure was enacted.
These views may upset the conservatives among us who are most comfortable when they allow themselves to be
petrified by precedents instead of venturing into uncharted waters. To be sure, there is much to be said of the
wisdom of the past expressed by vanished judges talking to the future. Via trita est tuttisima. Except when there is a
need to revise them because of an altered situation or an emergent idea, precedents should tell us that, indeed, the
trodden path is the safest path.
It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction of this Court has
been expanded by the Constitution, to possibly include the review the petitioners would have us make of the
congressional proceedings being questioned. Perhaps it is also time to declare that the activities of Congress can no
longer be smoke-screened in the inviolate recitals of its journals to prevent examination of its sacrosanct records in
the name of the separation of powers.
But then again, perhaps all this is not yet necessary at this time and all these observations are but wishful
musings for a more activist judiciary. For I find that this is not even necessary, at least for me, to leave the trodden
path in the search for new
706
6 ANNOTATED
adventures in the byways of the law. The answer we seek, as I see it, is not far afield. It seems to me that it can be
found through a study of the enrolled bill alone and that we do not have to go beyond that measure to ascertain if
R.A. No. 7716 has been validly enacted.
It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative journals, it is
the former that should prevail except only as to matters that the Constitution requires to be entered in the journals.
(Mabanag v. Lopez Vito, 78 Phil. 1). These are the yeas and nays on the final reading of a bill or on any question at
the request of at least one-fifth of the members of the House (Constitution, Art. VI, Sec. 16 [4]), the objections of
the President to a vetoed bill or item (Ibid, Sec. 27 [1]), and the names of the members voting for or against the
overriding of his veto (Id. Section 27 [1]). The origin of a bill is not specifically required by the Constitution to be
entered in the journals. Hence, on this particular matter, it is the recitals in the enrolled bill and not in the journals
that must control.
Article VI, Section 24, of the Constitution provides:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
The enrolled bill submitted to and later approved by the President of the Philippines as R.A. No. 7716 was signed by
the President of the Senate and the Speaker of the House of Representatives. It carried the following certification
over the signatures of the Secretary of the Senate and the Acting Secretary of the House of Representatives:
This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally passed
by the House of Representatives and the Senate on April 27, 1994, and May 2, 1994.
Let us turn to Webster for the meaning of certain words:
To “originate” is “to bring into being; to create something (original); to invent; begin; start.” The word
“exclusively” means “excluding all others” and is derived from the word “exclusive,” meaning “not shared or
divided; sole; single.” Applying these
707
VOL. 235, AUGUST 25, 1994 707
meanings, I would read Section 24 as saying that the bills mentioned therein must be brought into being, or created,
or invented, or begun or started, only or singly or by no other body than the House of Representatives.
According to the certification, R.A. No . 7716 “is a consolidation of House Bill No. 11197 and Senate Bill No.
1630.” Again giving the words used their natural and ordinary sense conformably to an accepted canon of
construction, I would read the word “consolidation” as a “combination or merger” and derived from the word
“consolidate,” meaning “to combine into one; merge; unite.”
The two bills were separately introduced in their respective Chambers. Both retained their independent existence
until they reached the bicameral conference committee where they were consolidated. It was this consolidated
measure that was finally passed by Congress and submitted to the President of the Philippines for his approval.
House Bill No. 11197 originated in the House of Representatives but this was not the bill that eventually became
R.A. No. 7716. The measure that was signed into law by President Ramos was the consolidation of that bill and
another bill, viz., Senate Bill No. 1630, which was introduced in the Senate. The resultant enrolled bill thus did not
originate exclusively in the House of Representatives. The enrolled bill itself says that part of it (and it does not
matter to what extent) originated in the Senate.
It would have been different if the only participation of the Senate was in the amendment of the measure that
was originally proposed in the House of Representatives. But this was not the case. The participation of the Senate
was not in proposing or concurring with amendments that would have been incorporated in House Bill No. 11197.
Its participation was in originating its own Senate Bill No. 1630, which was not embodied in but merged with House
Bill No. 11197.
Senate Bill No. 1630 was not even an amendment by substitution, assuming this was permissible. To
“substitute” means “to take the place of; to put or use in place of another.” Senate Bill No. 1630 did not, upon its
approval, replace (and thus eliminate) House Bill No. 11197. Both bills retained their separate identities until they
were joined or united into what became the enrolled bill and ultimately R.A. No. 7716.
708
8 ANNOTATED
The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate exclusively in the
House of Representatives.
To go back to my earlier observations, this conclusion does not require the reversal of U.S. vs. Pons and an
inquiry by this Court into the proceedings of the legislature beyond the recitals of its journals. All we need to do is
consider the certification in the enrolled bill and, without entering the precincts of Congress, declare that by its own
admission it has, indeed, not complied with the Constitution.
While this Court respects the prerogatives of the other departments, it will not hesitate to rise to its higher duty
to require from them, if they go astray, full and strict compliance with the fundamental law. Our fidelity to it must
be total. There is no loftier principle in our democracy than the supremacy of the Constitution, to which all must
submit.
I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution.
SEPARATE OPINION
PADILLA, J.:
I
The original VAT law and the expanded VAT law
In Kapatiran v. Tan, where the ponente was the writer of this Separate Opinion, a unanimous Supreme Court en
1
banc upheld the validity of the original VAT law (Executive Order No. 273, approved on 25 July 1987). It will, in
my view, be pointless at this time to re-open arguments advanced in said case as to why said VAT law was invalid,
and it will be equally redundant to re-state the principles laid down by the Court in the same case affirming the
validity of the VAT law as a tax measure. And yet, the same arguments are, in effect, marshalled against the merits
and substance of the expanded VAT law (Rep. Act No. 7716, approved on 5 May 1994). The same Supreme Court
decision should
_________________
G.R. No. 81311, 30 June 1988, 163 SCRA 371.

1
709
VOL. 235, AUGUST 25, 1994 709
therefore dispose, in the main, of such arguments, for the expanded VAT law is predicated basically on the same
principles as the original VAT law, except that now the tax base of the VAT imposition has been expanded or
broadened.
It only needs to be stated—what actually should be obvious—that a tax measure, like the expanded VAT law
(Republic Act No. 7716), is enacted by Congress and approved by the President in the exercise of the State’s power
to tax, which is an attribute of sovereignty. And while the power to tax, if exercised without limit, is a power to
destroy, and should, therefore, not be allowed in such form, it has to be equally recognized that the power to tax is
an essential right of government. Without taxes, basic services to the people can come to a halt; economic progress
will be stunted, and, in the long run, the people will suffer the pains of stagnation and retrogression.
Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the expanded VAT
law comes within the legitimate power of the state to tax. And as I had occasion to previously state:
“Constitutional Law, to begin with, is concerned with power not political convenience, wisdom,
exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments)
can create power where the Constitution confers none.” 2
Likewise, in the first VAT case, I said:

“In any event, if petitioners seriously believe that the adoption and continued application of the VAT are
prejudicial to the general welfare or the interests of the majority of the people, they should seek recourse
and relief from the political branches of the government. The Court, following the time-honored doctrine
of separation of powers, cannot substitute its judgment for that of the President (and Congress) as to the
wisdom, justice and advisability of the adoption of the VAT.” 3
________________
Bautista v. Salonga, G.R. No. 86439, 13 April 1989, 172 SCRA 160.

2
Kapatiran, supra at 385.
3
710
0 ANNOTATED
This Court should not, as a rule, concern itself with questions of policy, much less, economic policy. That is better
left to the two (2) political branches of government. That the expanded VAT law is unwise, unpopular and even anti-
poor, among other things said against it, are arguments and considerations within the realm of policy-debate, which
only Congress and the Executive have the authority to decisively confront, alleviate, remedy and resolve.
II
The procedure followed in the approval of Rep. Act No. 7716 Petitioners however posit that the present case raises a
far-reaching constitutional question which the Court is duty-bound to decide under its expanded jurisdiction in the
1987 Constitution. Petitioners more specifically question and impugn the manner by which the expanded VAT law
4
(Rep. Act No. 7716) was approved by Congress. They contend that it was approved in violation of the Constitution
from which fact it follows, as a consequence, that the law is null and void. Main reliance of the petitioners in their
assault is Section 24, Art. VI of the Constitution which provides:
“Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bill of
Senate may propose or concur with amendments.”
While it should be admitted at the outset that there was no rigorous and strict adherence to the literal command of
the above provision, it may however be said, after careful reflection, that there was substantial compliance with the
provision.
There is no question that House Bill No. 11197 expanding the VAT law originated from the House of
Representatives. It is undeniably a House measure. On the other hand, Senate Bill No. 1129, also expanding the
VAT law, originated from the Senate. It
________________
Sec. 1, Art. VIII.

4
711
VOL. 235, AUGUST 25, 1994 711
is undeniably a Senate measure which, in point of time,actually antedated House Bill No. 11197.
But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the Senate, it was
referred to, and considered by the Senate Committee on Ways and Means (after first reading) together with Senate
Bill No. 1129, and the Committee came out with Senate Bill No. 1630 in substitution of Senate Bill No. 1129 but
after expressly taking into consideration House Bill No. 11197.
Since the Senate is, under the above-quoted constitutional provision, empowered to concur with a revenue
measure exclusively originating from the House, or to propose amendments thereto, to the extent of proposing
amendments by SUBSTITUTION to the House measure, the approval by the Senate of Senate Bill No. 1630, after it
had considered House Bill No. 11197, may be taken, in my view, as an AMENDMENT BY SUBSTITUTION by
the Senate not only of Senate Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered,
originated exclusively from the House.
But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from the House and
Senate Bill No. 1630 contained conflicting provisions, both bills (House Bill No. 11197 and Senate Bill No. 1630)
were referred to the Bicameral Conference Committee for joint consideration with a view to reconciling their
conflicting provisions.
The Conference Committee came out eventually with a Conference Committee Bill which was submitted to both
chambers of Congress (the Senate and the House). The Conference Committee reported out a bill consolidating
provisions in House Bill No. 11197 and Senate Bill No. 1630. What transpired in both chambers after the
Conference Committee Report was submitted to them is not clear from the records in this case. What is clear
however is that both chambers voted separately on the bill reported out by the Conference Committee and both
chambers approved the bill of the Conference Committee.
To me then, what should really be important is that both chambers of Congress approved the bill reported out by
the Conference Committee. In my considered view, the act of both chambers of Congress in approving the
Conference Committee bill, should put an end to any inquiry by this Court as to how the
712
2 ANNOTATED
bill came about. What is more, such separate approvals CURED whatever constitutional infirmities may have arisen
in the procedures leading to such approvals. For, if such infirmities were serious enough to impugn the very validity
of the measure itself, there would have been an objection or objections from members of both chambers to the
approval. The Court has been shown no such objection on record in both chambers.
Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the Constitution which
provides:
“SEC. 26. x x x
(2) No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days before
its passage, except when the President certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.”
in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was approved by the Senate,
after it had been reported out by the Senate Committee on Ways and Means, the bill went through second and third
readings on the same day (not separate days) and printed copies thereof in its final form were not distributed to the
members of the Senate at least three (3) days before its passage by the Senate. But we are told by the respondents
that the reason for this “short cut” was that the President had certified to the necessity of the bill’s immediate
enactment to meet an emergency—a certification that, by leave of the same constitutional provision, dispensed with
the second and third readings on separate days and the printed form at least three (3) days before its passage.
We have here then a situation where the President did certify to the necessity of Senate Bill No. 1630’s
immediate enactment to meet an emergency and the Senate responded accordingly. While I would be the last to say
that this Court cannot review the exercise of such power by the President in appropriate cases ripe for judicial
review, I am not prepared however to say that the President gravely abused his discretion in the exercise of such
power as to require that this Court overturn his action. We have
713
VOL. 235, AUGUST 25, 1994 713
been shown no fact or circumstance which would impugn the judgment of the President, concurred in by the Senate,
that there was an emergency that required the immediate enactment of Senate Bill No. 1630. On the other hand, a
becoming respect for a co-equal and coordinate department of government points that weight and credibility be
given to such Presidential judgment.
The authority or power of the Conference Committee to make insertions in and deletions from the bills referred
to it, namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise assailed by petitioners. Again, what
appears important here is that both chambers approved and ratified the bill as reported out by the Conference
Committee (with the reported insertions and deletions). This is perhaps attributable to the known legislative practice
of allowing a Conference Committee to make insertions in and deletions from bills referred to it for consideration, as
long as they are germane to the subject matter of the bills under consideration. Besides, when the Conference
Committee made the insertions and deletions complained of by petitioners, was it not actually performing the task
assigned to it of reconciling conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630?
This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine Judges
Association, etc. vs. Hon. Peter Prado, etc.. In said case, we stated thus:
5
“The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be settled by a
conference committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement
between both Houses and so the second paragraph could not have been validly added as an amendment.
These arguments are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
‘A conference committee may deal generally with the subject matter or it may be limited to resolving the precise
differences
_______________
G.R. No. 103371, 11 November 1993.

5
714
4 ANNOTATED
between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But
occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions
occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of
the authoritarian power of conference committee (Davies, Legislative Law and Process: In A Nutshell, 1986 Ed., p.
81).’
It is a matter of record that the Conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled
with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House
of Representatives as having been duly passed by both Houses of Congress. It was then presented to and
approved by President Corazon C. Aquino on April 3, 1992.”
It would seem that if corrective measures are in order to clip the powers of the Conference Committee, the remedy
should come from either or both chambers of Congress, not from this Court, under the time-honored doctrine of
separation of powers.
Finally, as certified by the Secretary of the Senate and the Secretary General of the House of Representatives—
“This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 (w)as
finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2, 1994
respectively.”
Under the long-accepted doctrine of the “enrolled bill,” the Court in deference to a co-equal and coordinate branch
of government is held to a recognition of Rep. Act No. 7716 as a law validly enacted by Congress and, thereafter,
approved by the President on 5 May 1994. Again, we quote from our recent decision in Philippine Judges
Association,supra:
“Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 6
_______________
7 SCRA 347.
6
715
VOL. 235, AUGUST 25, 1994 715
laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be
entered in the journals like the yeas and nays on the final reading of the bill). The journals are themselves
7
also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. vs. Pons, where we
8
explained the reason thus:

‘To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and
explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine Government was
brought into existence, to invade a coordinate and independent department of the Government, and to interfere with
the legitimate powers and functions of the Legislature.’
Applying these principles, we shall decline to look into the petitioners’ charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof
in its final form were not distributed among the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec.
26(2) of the Constitution. We are bound by such official assurances from a coordinate department of the
government, to which we owe, at the very least, a becoming courtesy.”
III
Press Freedom and Religious Freedom and Rep. Act No. 7716
The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law have to be examined
separately and carefully.
Rep. Act No. 7716 in imposing a value-added tax on circulation income of newspapers and similar publications
and on income derived from publishing advertisements in newspapers, to my mind, violates Sec. 4, Art. III of the
9
Constitution. Indeed, even the Executive Department has tried to cure this defect by the issuance of BIR Regulation
No. 11-94 precluding implementation of the tax in this area. It should be clear, however, that the BIR
_______________
Mabanag v. Lopez Vito, 78 Phil. 1.

7
34 Phil. 729.

8
Executive Order No. 273, in Sec. 103 (f), had exempted this kind of income from the VAT. Rep. Act. No. 7716
9
removed the exemption.

716
6 ANNOTATED
regulation cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from administration
regulation) can amend an existing law.
Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime cause of the
revolution against Spain at the turn of the 19th century was the repression of the freedom of speech and expression
and of the press. No less than our national hero, Dr. Jose P. Rizal, in “Filipinas Despues de Cien Anos” (The
Philippines a Century Hence) describing the reforms sine quibus nonwhich the Filipinos were insisting upon, stated:
“The minister x x x who wants his reforms to be reforms, must begin by declaring the press in the Philippines free x
x x.” 10
Press freedom in the Philippines has met repressions, most notable of which was the closure of almost all forms
of existing mass media upon the imposition of martial law on 21 September 1972.
Section 4, Art. III of the Constitution maybe traced to the United States Federal Constitution. The guarantee of
freedom of expression was planted in the Philippines by President McKinley in the Magna Carta of Philippine
Liberty, Instructions to the Second Philippine Commission on 7 April 1900.
The present constitutional provision which reads:
“Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.”
is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason, American case law
giving judicial expression as to its meaning is highly persuasive in the Philippines.
The plain words of the provision reveal the clear intention that no prior restraint can be imposed on the exercise
of free speech and expression if they are to remain effective and meaningful.
The U.S. Supreme Court in the leading case of Grosjean v. American Press Co., Inc. declared a statute
11
imposing a gross
________________
United States v. Bustos, 37 Phil. 731.

10
297 U.S. 233.

11
717
VOL. 235, AUGUST 25, 1994 717
receipts license tax of 2% on circulation and advertising income of newspaper publishers as constituting a prior
restraint which is contrary to the guarantee of freedom of the press.
In Bantam Books, Inc. v. Sullivan, the U.S. Supreme Court stated: “Any system of prior restraint of expression
12
comes to this Court bearing a heavy presumption against its constitutionality.” In this jurisdiction, prior restraint on
the exercise of free expression can be justified only on the ground that there is a clear and present danger of a
substantive evil which the State has the right to prevent. 13
In the present case, the tax imposed on circulation and advertising income of newspaper publishers is in the
nature of a prior restraint on circulation and free expression and, absent a clear showing that the requisite for prior
restraint is present, the constitutional flaw in the law is at once apparent and should not be allowed to proliferate.
Similarly, the imposition of the VAT on the sale and distribution of religious articles must be struck down for
being contrary to Sec. 5, Art. III of the Constitution which provides:
“Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.”
That such a tax on the sale and distribution of religious articles is unconstitutional, has been long settled in
American Bible Society, supra.
Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the above-discussed two
(2) basic constitutional rights, Rep. Act No. 7716 should be declared unconstitutional and of no legal force and
effect.
IV
Petitions of CREBA and PAL and Rep. Act No. 7716
_______________
372 U.S. 58.

12
American Bible Society v. City of Manila, 101 Phil. 386.

13
718
8 ANNOTATED
The Chamber of Real Estate and Builder’s Association, Inc. (CREBA) filed its own petition (GR No. 11574)
arguing that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax on the gross selling price or gross
value in money of every sale, barter or exchange of goods or properties (Section 2) and a 10% value-added tax on
gross receipts derived from the sale or exchange of services, including the use or lease of properties (Section 3),
violate the equal protection, due process and non-impairment provisions of the Constitution as well as the rule that
taxation should be uniform, equitable and progressive.
The issue of whether or not the value-added tax is uniform, equitable and progressive has been settled
in Kapatiran.
CREBA which specifically assails the 10% value-added tax on the gross selling price of real properties, fails to
distinguish between a sale of real properties primarily held for sale to customers or held for lease in the ordinary
course of trade or business and isolated sales by individual real property owners (Sec. 103[s]). That those engaged in
the business of real estate development realize great profits is of common knowledge and need not be discussed at
length here. The qualification in the law that the 10% VAT covers only sales of real property primarily held for sale
to customers, i.e. for trade or business thus takes into consideration a taxpayer’s capacity to pay. There is no
showing that the consequent distinction in real estate sales is arbitrary and in violation of the equal protection clause
of the Constitution. The inherent power to tax of the State, which is vested in the legislature, includes the power to
determine whom or what to tax, as well as how much to tax. In the absence of a clear showing that the tax violates
the due process and equal protection clauses of the Constitution, this Court, in keeping with the doctrine of
separation of powers, has to defer to the discretion and judgment of Congress on this point.
Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under PD No. 1590
which makes it liable for a franchise tax of only 2% of gross revenues “in lieu of all the other fees and charges of
any kind, nature or description, imposed, levied, established, assessed or collected by any municipal, city,
provincial, or national authority or government agency, now or in the future,” cannot be amended by Rep. Act No.
7716 as to make it (PAL) liable for a 10% value-added tax
719
VOL. 235, AUGUST 25, 1994 719
on revenues, because Sec. 24 of PD No. 1590 provides that PAL’s franchise can only be amended, modified or
repealed by a special law specifically for that purpose.
The validity of PAL’s above argument can be tested by ascertaining the true intention of Congress in enacting
Rep. Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions states:
“Section 103. Exempt Transactions.—The following shall be exempt from the value-added tax:
xxx
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decrees No. 66 , 529, 972, 1491, 1590, x x x” (emphasis supplied)
The repealing clause of Rep. Act No. 7716 further reads:
“Sec. 20. Repealing clauses.—The provisions of any special law relative to the rate of franchise taxes are
hereby expressly repealed.
xxx
All other laws, orders, issuances, rules and regulations or parts thereof inconsistent with this Act are
hereby repealed, amended or modified accordingly” (emphasis supplied)
There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL’s franchise with respect to
the taxes it has to pay. To this extent, Rep. Act No. 7716 can be considered as a special law amending PAL’s
franchise and its tax liability thereunder. That Rep. Act No. 7716 imposes the value-added taxes on other subjects
does not make it a general law which cannot amend PD No. 1590.
To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a valid law,
viewed from both substantive and procedural standards, except only insofar as it violates Secs. 4 and 5, Art. III of
the Constitution (the guarantees of freedom of expression and the free exercise of religion). To that extent, it is, in its
present form, unconstitutional.
I, therefore, vote to DISMISS the petitions, subject to the above qualification.
720
0 ANNOTATED
SEPARATE OPINION
VITUG, J.:
Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to my mind, is whether or not this
Court is ready to assume and to take upon itself with an overriding authority the awesome responsibility of
overseeing the entire bureaucracy. Far from it, ours is merely to construe and to apply the law regardless of its
wisdom and salutariness, and to strike it down only when it clearly disregards constitutional proscriptions. It is what
the fundamental law mandates, and it is what the Court must do.
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under the 1987
Constitution the Court may now at good liberty intrude, in the guise of the people’s imprimatur, into every affair of
government. What significance can still then remain, I ask, of the time honored and widely acclaimed principle of
separation of powers, if at every turn the Court allows itself to pass upon, at will, the disposition of a co-equal,
independent and coordinate branch in our system of government. I dread to think of the so varied uncertainties that
such an undue interference can lead to. The respect for long standing doctrines in our jurisprudence, nourished
through time, is one of maturity not timidity, of stability rather than quiescence.
It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is envisioned, let
alone institutionalized, by our people in the 1987 Constitution. The test of tyranny is not solely on how it is wielded
but on how, in the first place, it can be capable of being exercised. It is time that any such perception of judicial
omnipotence is corrected.
Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional infringement of
substance, judging from precedents already laid down by this Court in previous cases, nor a justiciability even now
of the issues raised, more than an attempt to sadly highlight the perceived short comings in the procedural enactment
of laws, a matter which is internal to Congress and an area that is best left to its own basic concern. The fact of the
matter is that the legislative enactment,
721
VOL. 235, AUGUST 25, 1994 721
in its final form, has received the ultimate approval of both houses of Congress. The finest rhetoric, indeed
fashionable in the early part of this closing century, would still be a poor substitute for tangibility. I join,
nonetheless, some of my colleagues in respectfully inviting the kind attention of the honorable members of our
Congress in the suggested circumspect observance of their own rules.
A final remark. I should like to make it clear that this opinion does not necessarily foreclose the right, peculiar to
any taxpayer adversely affected, to pursue at the proper time, in appropriate proceedings, and in proper fora, the
specific remedies prescribed therefor by the National Internal Revenue Code, Republic Act 1125, and other laws, as
well as rules of procedure, such as may be pertinent. Some petitions filed with this Court are, in essence, although
styled differently, in the nature of declaratory relief over which this Court is bereft of original jurisdiction.
All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.
DISSENTING OPINION
REGALADO, J.:
It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents claim, was conceived
by the collective wisdom of a bicameral Congress and crafted with sedulous care by two branches of government
should now be embroiled in challenges to its validity for having been enacted in disregard of mandatory
prescriptions of the Constitution itself. Indeed, such impugnment by petitioners goes beyond merely the procedural
flaws in the parturition of the law. Creating and regulating as it does definite rights to property, but with its own
passage having been violative of explicit provisions of the organic law, even without going into the intrinsic merits
of the provisions of Republic Act No. 7716 its substantive invalidity is pro factonecessarily entailed.
How it was legislated into its present statutory existence is not in serious dispute and need not detain us except
for a recital of some salient and relevant facts. The House of Representatives
722
2 ANNOTATED
passed House Bill No. 11197 on third reading on November 17, 1993 and, the following day, it transmitted the same
1
to the Senate for concurrence. On its part, the Senate approved Senate Bill No. 1630 on second and third readings on
March 24, 1994. It is important to note in this regard that on March 22, 1994, said S.B. No. 1630 had been certified
by President Fidel V. Ramos for immediate enactment to meet a public emergency, that is, a growing budgetary
deficit. There was no such certification for H.B. No. 11197 although it was the initiating revenue bill.
It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that Presidential
certification was erroneously made for and confined to S.B. No. 1630 which was indisputably a tax bill and, under
the Constitution, could not validly originate in the Senate. Whatever is claimed in favor of S.B. No. 1630 under the
blessings of that certification, such as its alleged exemption from the three separate readings requirement, is
accordingly negated and rendered inutile by the inefficacious nature of said certification as it could lawfully have
been issued only for a revenue measure originating exclusively from the lower House. To hold otherwise would be to
validate a Presidential certification of a bill initiated in the Senate despite the Constitutional prohibition against its
originating therefrom.
Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee Report No. 349
submitted to the Senate on February 7, 1994 and approved by that body “in substitution of S.B. No. 1129,” while
merely “taking into consideration P.S. No. 734 and H.B. No. 11197.” S.B. No. 1630, therefore, was never filed in
2
substitution of either P.S. No. 734 or, more emphatically, of H.B. No. 11197 as these two legislative issuances were
merely taken account of, at the most, as referential bases or materials.
This is not a play on misdirection for, in the first instance, the respondents assure us that H.B. No. 11197 was
actually the sole
_______________
In substitution of H.B. Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 which were filed over
1
the period from July 22, 1992 to August 3, 1993.

P.S. Res. No. 734 had earlier been filed in the Senate on September 10, 1992, while S.B. No. 1129 was filed on
2
March 1, 1993.
723
VOL. 235, AUGUST 25, 1994 723
source of and started the whole legislative process which culminated in Republic Act No. 7716. The participation of
the Senate in enacting S.B. No. 1630 was, it is claimed, justified as it was merely in pursuance of its power to concur
in or propose amendments to H.B. No. 11197. Citing the 83-year old case of Flint vs. Stone Tracy Co., it is blithely
3
announced that such power to amend includes an amendment by substitution, that is, even to the extent of
substituting the entire H.B. No. 11197 by an altogether completely new measure of Senate provenance. Ergo, so the
justification goes, the Senate acted perfectly in accordance with its amending power under Section 24, Article VI of
the Constitution since it merely proposed amendments through a bill allegedly prepared in advance.
This is a mode of argumentation which, by reason of factual inaccuracy and logical implausibility, both astounds
and confounds. For, it is of official record that S.B. No. 1630 was filed, certified and enacted in substitution of S.B.
No. 1129 which in itself was likewise in derogation of the Constitutional prohibition against such initiation of a tax
bill in the Senate. In any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be
referred to the bicameral conference committee as a substitute for H.B. No. 11197. These indelible facts appearing in
official documents cannot be erased by any amount of strained convolutions or incredible pretensions that S.B. No.
1630 was supposedly enacted in anticipation of H.B. No. 11197.
On that score alone, the invocation by the Solicitor General of the hoary concept of amendment by substitution
falls flat on its face. Worse, his concomitant citation of Flintto recover from that prone position only succeeded in
turning the same postulation over, this time supinely flat on its back. As elsewhere noted by some colleagues, which
I will just refer to briefly to avoid duplication, respondents initially sought sanctuary in that doctrine supposedly laid
down in Flint, thus: “It has, in fact, been held that the substitution of an entirely new measure for the one originally
proposed can be supported as a valid amendment.” (Emphasis supplied.) During the interpellation by the writer at
4
_______________
220 U.S. 107, 55 L.Ed. 389 (1911).

3
Consolidated Comment, 36-37.

4
724
4 ANNOTATED
the oral argument held in these cases, the attention of the Solicitor General was called to the fact that the amendment
in Flint consisted only of a single item, that is, the substitution of a corporate tax for an inheritance tax proposed in a
general revenue bill; and that the text of the decision therein nowhere contained the supposed doctrines he quoted
and ascribed to the court, as those were merely summations of arguments of counsel therein. It is indeed a source of
disappointment for us, but an admission of desperation on his part, that, instead of making a clarification or a
defense of his contention, the Solicitor General merely reproduced all over again the same quotations as they
5
appeared in his original consolidated comment, without venturing any explanation or justification.
The aforestated dissemblance, thus unmasked, has further undesirable implications on the contentions advanced
by respondents in their defense. For, even indulging respondents ex gratia argumenti in their pretension that S.B.
No. 1630 substituted or replaced H.B. No. 11197, aside from muddling the issue of the true origination of the
disputed law, this would further enmesh respondents in a hopeless contradiction.
In a publication authorized by the Senate and from which the Solicitor General has liberally quoted, it is reported
as an accepted rule therein that “(a)n amendment by substitution when approved takes the place of the principal bill.
C.R. March 19, 1963, p. 943.” Stated elsewise, the principal bill is supplanted and goes out of actuality. Applied to
6
the present situation, and following respondents’ submission that H.B. No. 11197 had been substituted or replaced in
its entirety, then in law it had no further existence for purposes of the subsequent stages of legislation except,
possibly, for referential data.
Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the President of the
Senate and the Speaker of the House of Representatives, carried this solemn certification over the signatures of the
respective secretaries of
________________
Consolidated Memorandum for Respondents, 56-57.

5
Orquiola, H. M., Annotated Rules of the Senate and Procedure, Precedents and Practices of the Senate of the
6
Republic of the Philippines since 1946, 1991 Ed., 108.

725
VOL. 235, AUGUST 25, 1994 725
both chambers: “This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally
passed by the House of Representatives and the Senate on April 27, 1994, and May 2, 1994.” (Italics mine.) In
reliance thereon, the Chief Executive signed the same into law as Republic Act No. 7716.
The confusion to which the writer has already confessed is now compounded by that official text of the
aforequoted certification which speaks, and this cannot be a mere lapsus calami, of
two independent and existing bills (one of them being H.B. No. 11197) which were consolidated to produce the
enrolled bill. In parliamentary usage, to consolidate two bills, is to unite them into one and which, in the case at bar,
7
necessarily assumes that H.B. No. 11197 never became legally inexistent. But did not the Solicitor General, under
the theory of amendment by substi-tution of the entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same
upon the replacement, hence the total elimination from the legislative process, of H.B. 11197?
It results, therefore, that to prove compliance with the requirement for the exclusive origination of H.B. No.
11197, two alternative but inconsistent theories had to be espoused and defended by respondents’ counsel. To justify
the introduction and passage of S.B. No. 1630 in the Senate, it was supposedly enacted only as an amendment by
substitution, hence on that theory H.B. No. 11197 had to be considered as displaced and terminated from its role or
existence. Yet, likewise for the same purpose but this time on the theory of origination by consolidation, H.B. No.
11197 had to be resuscitated so it could be united or merged with S.B. No. 1630. This latter alternative theory,
unfortunately, also exacerbates the constitutional defect for then it is an admission of a dual origination of the two
tax bills, each respectively initiated in and coming from the lower and upper chambers of Congress.
Parenthetically, it was also this writer who pointedly brought this baffling situation to the attention of the
Solicitor General during the aforesaid oral argument, to the extent of reading aloud the certification in full. We had
hoped thereby to be clarified on these vital issue in respondents’ projected memo-
_______________
Black’s Law Dictionary, 4th Ed. (1951), 381, citing Fairview vs. Durham, 45 Iowa 56.
7
726
6 ANNOTATED
randum, but we have not been favored with an explanation unraveling this dilemma. Verily, by passing sub
silentio on these intriguing submissions, respondents have wreaked havoc on both logic and law just to gloss over
their non-compliance with the Constitutional mandate for exclusive origination of a revenue bill. The procedure
required therefor, we emphatically add, can be satisfied only by complete and strict compliance since this is laid
down by the Constitution itself and not by a mere statute.
This writer consequently agrees with the clearly tenable proposition of petitioners that when the Senate passed
and approved S.B. No. 1630, had it certified by the Chief Executive, and thereafter caused its consideration by the
bicameral conference committee in total substitution of H.B. No. 11197, it clearly and deliberately violated the
requirements of the Constitution not only in the origination of the bill but in the very enactment of Republic Act No.
7716. Contrarily, the shifting sands of inconsistency in the arguments adduced for respondents betray such lack of
intellectual rectitude as to give the impression of being mere rhetorics in defense of the indefensible.
We are told, however, that by our discoursing on the foregoing issues we are intruding into non-justiciable areas
long declared verboten by such time-honored doctrines as those on political questions, the enrolled bill theory and
the respect due to two co-equal and coordinate branches of Government, all derived from the separation of powers
inherent in republicanism. We appreciate the lectures, but we are not exactly unaware of the teachings in U.S. vs.
Pons, Mabanag vs. Lopez Vito, Casco Philippine Chemical Co., Inc. vs. Gimenez, etc., et al., Morales vs. Subido,
8 9 10
etc., and Philippine Judges Association, etc., et al. vs. Prado, etc., et al., on the one hand, and Tañada, et al. vs.
11 12
Cuenco, et al., Sanidad, et al. vs. Commission on Elections, et al., and

13 14
________________
34 Phil. 729 (1916).

8
78 Phil. 1 (1947).

9
L-17931, February 28, 1963, 7 SCRA 347.

10
L-29658, February 27, 1969, 27 SCRA 131.

11
G.R. No. 105371, November 11, 1993, 227 SCRA 703.

12
103 Phil. 1051 (1957).

13
L-46640, October 12, 1976, 73 SCRA 333.

14
727
VOL. 235, AUGUST 25, 1994 727
Daza vs. Singson, et al., on the other, to know which would be applicable to the present controversy and which
15
should be rejected.
But, first, a positional exordium. The writer of this opinion would be among the first to acknowledge and enjoin
not only courtesy to, but respect for, the official acts of the Executive and Legislative departments, but only so long
as the same are in accordance with or are defensible under the fundamental charter and the statutory law. He would
readily be numbered in the ranks of those who would preach a reasoned sermon on the separation of powers, but
with the qualification that the same are not contained in tripartite compartments separated by imper-meable
membranes. He also ascribes to the general validity of American constitutional doctrines as a matter of historical
and legal necessity, but not to the extent of being oblivious to political changes or unmindful of the fallacy of undue
generalization arising from myopic disregard of the factual setting of each particular case.
These ruminations have likewise been articulated and dissected by my colleagues, hence it is felt that the only
issue which must be set aright in this dissenting opinion is the so-called enrolled bill doctrine to which we are urged
to cling with reptilian tenacity. It will be preliminarily noted that the official certification appearing right on the face
of Republic Act No. 7716 would even render unnecessary any further judicial inquiry into the proceedings which
transpired in the two legislative chambers and, on a parody of tricameralism, in the bicameral conference committee.
Moreover, we have the excellent dissertations of some of my colleagues on these matters, but respondents insist en
contra that the congressional proceedings cannot properly be inquired into by this Court. Such objection confirms a
suppressive pattern aimed at sacrificing the rule of law to the fiat of expediency.
Respondents thus emplaced on their battlements the pronouncement of this Court in the aforecited case
of Philippine Judges Association vs. Prado. Their reliance thereon falls into the same error committed by their
16
seeking refuge in the Flint case, ante., which, as has earlier been demonstrated (aside from
________________
G.R. No. 86344, December 21, 1989, 180 SCRA 496.

15

16
728
8 ANNOTATED
the quotational misrepresentation), could not be on par with the factual situation in the present case. Flint, to repeat,
involved a mere amendment on a single legislative item, that is, substituting the proposal therein of an inheritance
tax by one on corporate tax. Now, in their submission based on Philippine Judges Association,respondents
studiously avoid mention of the fact that the questioned insertion referred likewise to a single item, that is, the repeal
of the franking privilege theretofore granted to the judiciary. That both cases cannot be equated with those at bar,
considering the multitude of items challenged and the plethora of constitutional violations involved, is too obvious
to belabor. Legal advocacy and judicial adjudication must have a becoming sense of qualitative proportion, instead
of lapsing into the discredited and maligned practice of yielding blind adherence to precedents.
The writer unqualifiedly affirms his respect for valid official acts of the two branches of government and
eschews any unnecessary intrusion into their operational management and internal affairs. These, without doubt, are
matters traditionally protected by the republican principle of separation of powers. Where, however, there is an
overriding necessity for judicial intervention in light of the pervasive magnitude of the problems presented and the
gravity of the constitutional violations alleged, but this Court cannot perform its constitutional duty expressed in
Section 1, Article VIII of the Constitution unless it makes the inescapable inquiry, then the confluence of such
factors should compel an exception to the rule as an ultimate recourse. The cases now before us present both the
inevitable challenge and the inescapable exigency for judicial review. For the Court to now shirk its bounden duty
would not only project it as a citadel of the timorous and the slothful, but could even undermine its raison d’etreas
the highest and ultimate tribunal.
Hence, this dissenting opinion has touched on events behind and which transpired prior to the presentation of the
enrolled bill for approval into law. The details of that law which resulted from the legislative action followed by
both houses of Congress, the substantive validity of whose provisions and the procedural validity of which
legislative process are here challenged as unconstitutional, have been graphically presented by petitioners and
admirably explained in the respective opinions of my brethren. The writer concurs in the conclusions drawn
therefrom and
729
VOL. 235, AUGUST 25, 1994 729
rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine.
Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that
doctrine has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry, it
has been held that “(u)nder the ‘enrolled bill rule’ by which an enrolled bill is sole expository of its contents and
conclusive evidence of its existence and valid enactment, it is nevertheless competent for courts to inquire as to what
prerequisites are fixed by the Constitution of which journals of respective houses of Legislature are required to
furnish the evidence.”
17
In fact, in Gwynn vs. Hardee, etc., et al., the Supreme Court of Florida declared:
18
“(1) While the presumption is that the enrolled bill, as signed by the legislative officers and filed with the
secretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is shown
from the legislative journals that a bill though engrossed and enrolled, and signed by the legislative
officers, contains provisions that have not passed both houses, such provisions will be held spurious and
not a part of the law. As was said by Mr. Justice Cockrell in the case of Wade vs. Atlantic Lumber Co., 51
Fla. 628, text 633, 41 So. 72, 73:
‘This Court is firmly committed to the holding that when the journals speak they control, and against such proof the
enrolled bill is not conclusive.’ ”
More enlightening and apropos to the present controversy is the decision promulgated on May 13, 1980 by the
Supreme Court of Kentucky in D & W Auto Supply, et al. vs. Department of Revenue, et al., pertinent excerpts
19
wherefrom are extensively reproduced hereunder:
_______________
Brailsford vs. Walker, 31 S.E. 2d 385, 387, 388, 205 S.C. 228.
17
110 So. 343, 346.

18
602 South Western Reporter, 2d Series, 402-425, jointly deciding Carrollton Wholesale Tobaccos, Inc. et al. vs.
19
Department of Revenue, et al., and Bluegrass Provisions Co., Inc., et al. vs. Department of Revenue, et al.
730
0 ANNOTATED
“x x x In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of
this court which created and nurtured the so-called ‘enrolled bill’ doctrine.
xxx
“[1] Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must
follow before a bill can be considered for final passage. x x x.
xxx
“x x x Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such
a bill, enrolled and certified by the appropriate officers, to determine if there are any defects.
xxx
“x x x In Lafferty, passage of the law in question violated this provision, yet the bill was properly
enrolled and approved by the governor. In declining to look behind the law to determine the propriety of
its enactment, the court enunciated three reasons for adopting the enrolled bill rule. First, the court was
reluctant to scrutinize the processes of the legislature, an equal branch of government. Second, reasons of
convenience prevailed, which discouraged requiring the legislature to preserve its records and anticipated
considerable complex litigation if the court ruled otherwise. Third, the court acknowledged the poor
record-keeping abilities of the General Assembly and expressed a preference for accepting the final bill as
enrolled, rather than opening up the records of the legislature. x x x.
xxx
“Nowhere has the rule been adopted without reason, or as a result of judicial whim. There are four
historical bases for the doctrine. (1) An enrolled bill was a ‘record’ and, as such, was not subject to attack
at common law. (2) Since the legislature is one of the three branches of government, the courts, being
coequal, must indulge in every presumption that legislative acts are valid. (3) When the rule was
originally formulated, record-keeping of the legislatures was so inadequate that a balancing of equities
required that the final act, the enrolled bill, be given efficacy. (4) There were theories of convenience as
expressed by the Kentucky court in Lafferty.
“The rule is not unanimous in the several states, however, and it has not been without its critics. From
an examination of cases and treaties, we can summarize the criticisms as follows: (1) Artificial
presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the present
case) produces results which do not accord with facts or constitutional provisions. (3) The rule is
conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and electronic
record-keeping devices now used by legislatures
731
VOL. 235, AUGUST 25, 1994 731
remove one of the original reasons for the rule. (5) The rule disregards the primary obligation of the
courts to seek the truth and to provide a remedy for a wrong committed by any branch of government. In
light of these considerations, we are convinced that the time has come to re-examine the enrolled bill
doctrine.
“[2] This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is
“Stare decisis et non quieta movere,” which simply suggests that we stand by precedents and not disturb
settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to require perpetuation of
error or logic. As we stated in Daniel’s Adm’r v. Hoofnel, 287 Ky 834, 155 S.W.2d 469, 471-72 (1941)
(citations omitted):
The force of the rule depends upon the nature of the question to be decided and the extent of the disturbance of
rights and practices which a change in the interpretation of the law or the course of judicial opinions may create.
Cogent considerations are whether there is clear error and urgent reasons ‘for neither justice nor wisdom requires a
court to go from one doubtful rule to another,’ and whether or not the evils of the principle that has been followed
will be more injurious than can possibly result from a change.
Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is
unjust, or has been discredited by actual experience, it should be discarded, and with it the rule it
supports.
“[3] It is clear to us that the major premise of the Laffertydecision, the poor record-keeping of the
legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our
General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment,
printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the
ability of the General Assembly to keep accurate and readily accessible records.
“It is also apparent that the ‘convenience’ rule is not appropriate in today’s modern and developing
judicial philosophy. The fact that the number and complexity of lawsuits may increase is not persuasive if
one is mindful that the overriding purpose of our judicial system is to discover the truth and see that
justice is done. The existence of difficulties and complexities should not deter this pursuit and we reject
any doctrine or presumption that so provides.
“Lastly, we address the premise that the equality of the various branches of government requires that
we shut our eyes to constitutional failings and other errors of our coparceners in government. We simply
do not agree. Section 26 of the Kentucky Constitution provides that any
732
2 ANNOTATED
law contrary to the constitution is ‘void.’ The proper exercise of judicial authority requires us to
recognize any law which is unconstitutional and to declare it void. Without belaboring the point, we
believe that under section 228 of the Kentucky Constitution it is our obligation to ‘support . . . the
Constitution of the commonwealth.’ We are sworn to see that violations of the constitution—by any
person, corporation, state agency or branch of government—are brought to light and corrected. To
countenance an artificial rule of law that silences our voices when confronted with violations of our
constitution is not acceptable to this court.
“We believe that a more reasonable rule is the one which Professor Sutherland describes as the
‘extrinsic evidence’ rule. x x x. Under this approach there is a prima facie presumption that an enrolled
bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence
establishing that constitutional requirements have not been met.
“We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill
doctrine, to the extent that there is no longer a conclusive presumption that an enrolled bill is valid. x x x”
(Emphases mine.)
Undeniably, the value-added tax system may have its own merits to commend its continued adoption, and the
proposed widening of its base could achieve laudable governmental objectives if properly formulated and
conscientiously implemented. We would like to believe, however, that ours is not only an enlightened democracy
nurtured by a policy of transparency but one where the edicts of the fundamental law are sacrosanct for all, barring
none. While the realization of the lofty ends of this administration should indeed be the devout wish of all, likewise
barring none, it can never be justified by methods which, even if unintended, are suggestive of Machiavellism.
Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for having been
enacted in violation of Section 24, Article VI of the Constitution.
DISSENTING OPINION
DAVIDE, JR., J.:
The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the public
respondents submitted
733
VOL. 235, AUGUST 25, 1994 733
by the Office of the Solicitor General, demonstrates beyond doubt that it was passed in violation or deliberate
disregard of mandatory provisions of the Constitution and of the rules of both chambers of Congress relating to the
enactment of bills.
I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted with grave abuse
of discretion.
The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law unless it is
approved by both chambers—the Senate and the House of Representatives (hereinafter House). Otherwise stated,
each chamber may propose and approve a bill, but until it is submitted to the other chamber and passed by the latter,
it cannot be submitted to the President for its approval into law.
Paragraph 2, Section 26, Article VI of the Constitution provides:
“No bill passed by either House shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to its Members three days before its
passage, except when the President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the
vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.”
The “three readings” refer to the three readings in both chambers.
There are, however, bills which must originate exclusively in the House. Section 24, Article VI of the
Constitution enumerates them:
“SEC. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
Senate may propose or concur with amendments.”
Webster’s Third New International Dictionary defines originate as follows:
1
“vt 1: to cause the beginning of: give rise to: INITIATE . . . 2. to start (a person or thing) on a course of
journey . . . vi: to take or have
________________
1971 ed., 1592.

1
734
4 ANNOTATED
origin: be derived: ARISE, BEGIN, START . . .”
Black’s Law Dictionary defines the word exclusively in this wise:
2
“Apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all others;
without admission of others to participation; in a manner to exclude.”
In City Mayor vs. The Chief of Philippine Constabulary, this Court said:
3
“The term ‘exclusive’ in its usual and generally accepted sense, means possessed to the exclusion of
others; appertaining to the subject alone, not including, admitting or pertaining to another or others,
undivided, sole. (15 Words and Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power
Co., 95 P. 961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of House of Correction,
64 Pa. Super. 613, 615).”
Indisputably then, only the House can cause the beginning or initiate the passage of any appropriation, revenue, or
tariff bill, any bill increasing the public debt, any bill of local application, or any private bill. The Senate can only
“propose or concur with amendments.”
Under the Rules of the Senate, the first reading is the reading of the title of the bill and its referral to the
corresponding committee; the second reading consists of the reading of the bill in the form recommended by the
corresponding committee; and the third reading is the reading of the bill in the form it will be after approval on
second reading. During the second reading, the following takes place:
4
1. (1)Second reading of the bill;

2. (2)Sponsorship by the Committee Chairman or any member designated by the corresponding committee;
_______________
Sixth Edition (1990), 565, citing Standard Oil Co. of Texas vs. State, Tex. Civ. App., 142 S.W.2d 519, 521, 522, 523.
2
21 SCRA 665, 673 [1967].

3
Sections 52 and 53, Rule XXIII.

4
735
VOL. 235, AUGUST 25, 1994 735
1. (3)If a debate ensues, turns for and against the bill shall be taken alternately;
2. (4)The sponsor of the bill closes the debate;
3. (5)After the close of the debate, the period of amendments follows;
4. (6)Then, after the period of amendments is closed, the voting on the bill on second reading. 5
After approval on second reading, printed copies thereof in its final form shall be distributed to the Members of the
Senate at least three days prior to the third reading, except in cases of certified bills. At the third reading, the final
vote shall be taken and the yeas and nays shall be entered in the Journal. 6
Under the Rules of the House, the first reading of a bill consists of a reading of the number, title, and author
followed by the referral to the appropriate committees; the second reading consists of the reading in full of the bill
7
with the amendments proposed by the committee, if any; and the third reading is the reading of the bill in the form as
8
approved on second reading and takes place only after printed copies thereof in its final form have been distributed
to the Members at least three days before, unless the bill is certified. At the second reading, the following takes
9
place:
1. (1)Reading of the bill;

2. (2)Sponsorship;
3. (3)Debates;
4. (4)Period of Amendments; and
5. (5)Voting on Second Reading. 10
At the third reading, the votes shall be taken immediately and the yeas and nays entered in the Journal. 11
_______________
Section 57, Rule XXV.

5
Section 26(2), Article VI, Constitution; paragraph (7), Section 57, Rule XXV.
6
Section 69, Rule XIV.

7
Section 77, Id.
8
Section 82, Rule XIV.

9
Sections 77-81, Id.
10
Section 82, Id., in relation to Section 26(2), Article VI, Constitution.

11
736
6 ANNOTATED
Clearly, whether in the Senate or in the House, every bill must pass the three readings on separate days, except when
the bill is certified. Amendments to the bill on third reading are constitutionally prohibited.
12
After its passage by one chamber, the bill should then be transmitted to the other chamber for its concurrence.
Section 83, Rule XIV of the Rules of the House expressly provides:
“SEC. 83. Transmittal to Senate.—The Secretary General, without need of express order, shall transmit to
the Senate for its concurrence all the bills and joint or concurrent resolutions approved by the House or
the amendments of the House to the bills or resolutions of the Senate, as the case may be. If the measures
approved without amendments are bills or resolutions of the Senate, or if amendments of the Senate to
bills of the House are accepted, he shall forthwith notify the Senate of the action taken.”
Simplified, this rule means that:
1. 1.As to a bill originating in the House:
1. (a)Upon its approval by the House, the bill shall be transmitted to the Senate;
2. (b)The Senate may approve it with or without amendments;
3. (c)The Senate returns the bill to the House;
4. (d)The House may accept the Senate amendments; if it does not, the Secretary General shall notify the
Senate of that action. As hereinafter be shown, a request for conference shall then be in order.
1. 2.As to bills originating in the Senate:
1. (a)Upon its approval by the Senate, the bill shall be transmitted to the House;
2. (b)The House may approve it with or without amendments;
3. (c)The House then returns it to the Senate, informing it of the action taken;
4. (d)The Senate may accept the House amendments; if it does not, it shall notify the House and make a
request for conference.
The transmitted bill shall then pass three readings in the other chamber on separate days. Section 84, Rule XIV of
the
________________
12
Section 26(2), Article VI, Constitution.
737
VOL. 235, AUGUST 25, 1994 737
Rules of the House states:
“SEC. 84. Bills from the Senate.—The bills, resolutions and communications of the Senate shall be
referred to the corresponding committee in the same manner as bills presented by Members of the
House.”
and Section 51, Rule XXIII of the Rules of the Senate provides:
“SEC. 51. Prior to their final approval, bills and joint resolutions shall be read at least three times.”
It is only when the period of disagreement is reached, i.e.,amendments proposed by one chamber to a bill originating
from the other are not accepted by the latter, that a request for conference is made or is in order. The request for
conference is specifically covered by Section 26, Rule XII of the Rules of the Senate which reads:
“SEC. 26. In the event that the Senate does not agree with the House of Representatives on the provision
of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses
which shall meet within ten days after its composition.”
and Section 85, Rule XIV of the Rules of the House which reads:
“SEC. 85. Conference Committee Reports.—In the event that the House does not agree with the Senate on
the amendments to any bill or joint resolution, the differences may be settled by conference committees of
both Chambers.”
The foregoing provisions of the Constitution and the Rules of both chambers of Congress are mandatory.
In his Treatise On The Constitutional Limitations, more particularly on enactment of bills, Cooley states:
13
_________________
Volume I, Eight Edition, Chapter VI, 267. See Miller vs. Mardo, 2 SCRA 898 [1961]; Everlasting Pictures, Inc. vs.
13
Fuentes, 3 SCRA 539[1961].

738
8 ANNOTATED
“Where, for an instance, the legislative power is to be exercised by two houses, and by settled and well-
understood parliamentary law these two houses are to hold separate sessions for their deliberations, and
the determination of the one upon a proposed law is to be submitted to the separate determination of the
other, the constitution, in providing for two houses, has evidently spoken in reference to this settled
custom, incorporating it as a rule of constitutional interpretation; so that it would require no prohibitory
clause to forbid the two houses from combining in one, and jointly enacting laws by the vote of a majority
of all. All those rules which are of the essentials of law-making must be observed and followed; and it is
only the customary rules of order and routine, such as in every deliberative body are always understood to
be under its control, and subject to constant change at its will, that the constitution can be understood to
have left as matters of discretion, to be established, modified, or abolished by the bodies for whose
government in non-essential matters they exist.”
In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local application, or
private bills, the return thereof to the House after the Senate shall have “proposed or concurred with amendments”
for the former either to accept or reject the amendments would not only be in conformity with the foregoing rules
but is also implicit from Section 24 of Article VI.
With the foregoing as our guiding light, I shall now show the violations of the Constitution and of the Rules of
the Senate and of the House in the passage of R.A. No. 7716.
VIOLATIONS OF SECTION 24, ARTICLE VI OF THE CONSTITUTION:
First violation.—Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the House—not in the
Senate. As correctly asserted by petitioner Tolentino, on the face of the enrolled copy of R.A. No. 7716, it is a
“CONSOLIDATION OF HOUSE BILL NO. 11197 AND SENATE BILL NO. 1630.” In short, it is an illicit
marriage of a bill which originated in the House and a bill which originated in the Senate. Therefore, R.A. No.
7716 did not originate exclusively in the House.
The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197. This bill,
which is the substitute bill recommended by the House Committee on Ways
739
VOL. 235, AUGUST 25, 1994 739
and Means in substitution of House Bills Nos. 253, 771, 2450, 7033, 8086,9030, 9210, 9397, 10012, and 10100, and
covered by its Committee Report No. 367, was approved on third reading by the House on 17 November
14
1993. Interestingly, HB No. 9210, which was filed by Representative Exequiel B. Javier on 19 May 1993,
15 16
was certified by the President in his letter to Speaker Jose de Venecia, Jr. of 1 June 1993. Yet, HB No. 11197,
17
which substituted HB No. 9210 and the others abovestated, was not. Its certification seemed to have been entirely
forgotten.
On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV of the Rules of
the House, transmitted to the President of the Senate HB No. 11197 and requested the concurrence of the Senate
therewith. 18
However, HB No. 11197 had passed only its first reading in the Senate by its referral to its Committee on Ways
and Means. That Committee never deliberated on HB No. 11197 as it should have. It acted only on Senate Bill (SB)
No. 1129 introduced by Senator Ernesto F. Herrera on 1 March 1993. It then prepared and proposed SB No. 1630,
19
and in its Committee Report No. 349 which was submitted to the Senate on 7 February 1994, it recommended that
20 21
SB No. 1630 be approved “in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B.
No. 11197.” It must be carefully noted that SB No. 1630 was proposed and submitted for approval by the Senate in
22
SUBSTITUTION of SB No. 1129, and not HB No. 11197.Obviously, the principal measure which the Committee
deliberated
________________
Consolidated Memorandum for Respondents, Annexes “2” to “12,” inclusive.

14
Consolidated Memorandum for Respondents, 18.

15
Id., Annex “9.”

16
Id., Annex “1.”

17
Id., 18.
18
Id., Annex “15.” Entitled “An Act Restructuring the Value-Added Tax (VAT) System By Expanding Its Tax Base,
19
Amending Sections 103, 113, 114 of the National Internal Revenue Code, as Amended.”
Id., Annex “17.”
20
Id., 20.
21
Emphasis supplied.
22
740
0 ANNOTATED
on and acted upon was SB No. 1129 and not HB No. 11197.The latter, instead of being the only measure to be taken
up, deliberated upon, and reported back to the Senate for its consideration on second reading and, eventually, on
third reading, was, at the most, merely given by the Committee a passing glance.
This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing and
recommending approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129 demolishes at once the
thesis of the Solicitor General that:
“Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is within the purview of
Section 24, Article VI of the Constitution.”
because, according to him, (a) “Section 68, Rule XXIX of the Rules of the Senate authorizes an amendment by
substitution and the only condition required is that ‘the text thereof is submitted in writing’; and (b) ‘[I]n Flint vs.
Stone Tracy Co. (220 U.S. 107) the United States Supreme Court, interpreting the provision in the United States
Constitution similar to Section 24, Article VI of the Philippine Constitution, stated that the power of the Senate to
amend a revenue bill includes substitution of an entirely new measure for the one originally proposed by the House
of Representatives.’ ” 23
This thesis is utterly without merit. In the first place, it reads into the Committee Report something which it had
not contemplated, that is, to propose SB No. 1630 in substitution of HB No. 11197; or speculates that the Committee
may have committed an error in stating that it is SB No. 1129, and not HB No. 11197, which is to be substituted by
SB No. 1630. Either, of course, is unwarranted because the words of the Report, solemnly signed by the Chairman,
Vice-Chairman (who dissented), seven members, and three ex-officio members, leave no room for doubt that
24
although SB No. 1129, P.S. Res No. 734, and HB No. 11197 were referred to and considered by the Committee, it
had prepared the attached SB No. 1630 which it recommends for approval “in
________________

23
Consolidated Memorandum for Respondents, Annex “17.” Two signed with reservations and four signed subject to
24
amendments.
741
VOL. 235, AUGUST 25, 1994 741
substitution of S.B. No. 11197, taking into consideration P.S. No. 734 and H.B. No. 11197 with Senators Herrera,
Angara, Romulo, Sotto, Ople and Shahani as authors.” To do as suggested would be to substitute the judgment of
the Committee with another that is completely inconsistent with it, or, simply, to capriciously ignore the facts.
In the second place, the Office of the Solicitor General intentionally made it appear, to mislead rather than to
persuade us, that in Flint vs. Stone Tracy Co. the U.S. Supreme Court ruled, as quoted by it in the Consolidated
25
Memorandum for Respondents, as follows: 26
“The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to support
it. It has, in fact, been held that the substitution of an entirely new measure for the one originally
proposed can be supported as a valid amendment.
x x x x x x x x x
It is contended in the first place that this section of the act is unconstitutional, because it is a revenue
measure, and originated in the Senate in violation of section 7 of article 1 of the Constitution, providing
that ‘all bills for raising revenue shall originate in the House of Representatives, but the Senate may
propose or concur with the amendments, as on other bills.’ ”
The first part is not a statement of the Court, but a summary of the arguments of counsel in one of the companion
cases (No. 425, entitled, “Gay vs. Baltic Mining Co.”). The second part is the second paragraph of the opinion of the
Court delivered by Mr. Justice Day. The misrepresentation that the first part is a statement of the Court is highly
contemptuous. To show such deliberate misrepresentation, it is well to quote what actually are found in 55 L.Ed.
408, 410, to wit:
“Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No. 425:
_______________
And companion cases, 220 U.S. 107, 55 L.Ed. 389 [1911].

25
Page 56.
26
742
2 ANNOTATED
x x x
The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to support
it. It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed
can be supported as a valid amendment.
Brake v. Collison, 122 Fed. 722.
Mr. James L. Quackenbush filed a statement for appellees in No. 442.
Solicitor General Lehmann (by special leave) argued the cause for the United States on reargument.
Mr. Justice Day delivered the opinion of the court:
These cases involve the constitutional validity of § 38 of the act of Congress approved August 5, 1909, known as
‘the corporation tax’ law. 36 Stat. at L. 11, 112-117, chap. 6, U.S. Comp. Stat. Supp. 1909, pp. 659, 844-849.
It is contended in the first place that this section of the act is unconstitutional, because it is a revenue measure,
and originated in the Senate in violation of § 7 of article 1 of the Constitution, providing that ‘all bills for raising
revenue shall originate in the House of Representatives, but the Senate may propose or concur with the amendments,
as on other bills.’ The history of the act is contained in the government’s brief, and is accepted as correct, no
objection being made to its accuracy.
This statement shows that the tariff bill of which the section under consideration is a part, originated in the
House of Representatives, and was there a general bill for the collection of revenue. As originally introduced, it
contained a plan of inheritance taxation. In the Senate the proposed tax was removed from the bill, and the
corporation tax, in a measure, substituted therefor. The bill having properly originated in the House, we perceive no
reason in the constitutional provision relied upon why it may not be amended in the Senate in the manner which it
was in this case. The amendment was germane to the subject-matter of the bill, and not beyond the power of the
Senate to propose.” (Emphasis supplied)
x x x
As shown above, the underlined portions were deliberately omitted in the quotation made by the Office of the
Solicitor General.
743
VOL. 235, AUGUST 25, 1994 743
In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which under Section 24,
Article VI of the Constitution can only originate exclusively in the House, is not authorized by said Section 24. Flint
vs. Stone Tracy Co. cannot be invoked in favor of such a view. As pointed out by Mr. Justice Florenz D. Regalado
during the oral arguments of these cases and during the initial deliberations thereon by the Court, Flint involves a
Senate amendment to a revenue bill which, under the United States Constitution, should originate from the House of
Representatives. The amendment consisted of the substitution of a corporation tax in lieu of the plan of inheritance
taxation contained in a general bill for the collection of revenue as it came from the House of Representatives where
the bill originated. The constitutional provision in question is Section 7, Article I of the United States Constitution
which reads:
“Section 7. Bills and Resolutions.—All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments, as on other Bills.”
This provision, contrary to the misleading claim of the Solicitor General, is not similar to Section 24, Article VI of
our Constitution, which for easy comparison is hereunder quoted again:
“All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the Senate
may propose or concur with amendments.”
Note that in the former the word exclusively does not appear. And, in the latter, the phrase “as on other Bills,” which
is found in the former, does not appear. These are very significant in determining the authority of the upper chamber
over the bills enumerated in Section 24. Since the origination is not exclusively vested in the House of
Representatives of the United States, the Senate’s authority to propose or concur with amendments is necessarily
broader. That broader authority is further confirmed by the phrase “as on other Bills,” i.e., its power to propose or
concur with amendments thereon is the same as in ordinary bills. The absence of this phrase in our Constitution was
clearly intended to restrict or limit the Philippine Senate’s power to
744
4 ANNOTATED
propose or concur with amendments. In the light of the exclusivity of origination and the absence of the phrase “as
on other Bills,” the Philippine Senate cannot amend by substitution with an entirely new bill of its own any bill
covered by Section 24 of Article VI which the House of Representatives transmitted to it because such substitution
would indirectly violate Section 24.
These obvious substantive differences between Section 7, Article I of the U.S. Constitution and Section 24,
Article VI of our Constitution are enough reasons why this Court should neither allow itself to be misled by Flint vs.
Stonenor be awed by Rainey vs. United States and the opinion of Messrs. Ogg and Ray which the majority cites to
27 28
support the view that the power of the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the
Tariff Act of 1909 of the United States of America and specifically involved was its Section 37 which was an
amendment introduced by the U.S. Senate. It was claimed by the petitioners that the said section is a revenue
measure which should originate in the House of Representatives. The U.S. Supreme Court, however, adopted and
approved the finding of the court a quo that:
“the section in question is not void as a bill for raising revenue originating in the Senate, and not in the
House of Representatives. It appears that the section was proposed by the Senate as an amendment to a
bill for raising revenue which originated in the House. That is sufficient.”
Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement not even on a case
decided by the U.S. Supreme Court but on their perception of what Section 7, Article I of the U.S. Constitution
permits. In the tenth edition (1951) of their work, they state:
“Any bill may make its first appearance in either house, except only that bills for raising revenue are
required by the constitution to ‘originate’ in the House of Representatives. Indeed, through its right to
amend revenue bills, even to the extent of substituting new ones, the
________________
232 U.S. 309, 58 L ed. 117 [1914].

27
Introduction to American Government, 309, n. 2 [1945].

28
745
VOL. 235, AUGUST 25, 1994 745
Senate may, in effect, originate them also.” 29
Their “in effect” conclusion is, of course, logically correct because the word exclusively does not appear in said
Section 7, Article I of the U.S. Constitution.
Neither can I find myself in agreement with the view of the majority that the Constitution does not prohibit the
filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House so long as action by the
Senate as a body is withheld pending receipt of the House bill, thereby stating, in effect, that S.B. No. 1129 was such
an anticipatory substitute bill, which, nevertheless, does not seem to have been considered by the Senate except only
after its receipt of H.B. No. 11197 on 23 November 1993 when the process of legislation in respect of it began with
a referral to the Senate Committee on Ways and Means. Firstly, to say that the Constitution does not prohibit it is to
render meaningless Section 24 of Article VI or to sanction its blatant disregard through the simple expedient of
filing in the Senate of a so-called anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an
anticipatory measure to substitute for H.B. No. 11197. This is a speculation which even the author of S.B. No. 1129
may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera on 1 March 1993. H.B. No.
11197 was approved by the House on third reading only on 17 November 1993. Frankly, I cannot believe that
Senator Herrera was able to prophesy that the House would pass any VAT bill, much less to know its provisions.
That “it does not seem that the Senate even considered” the latter not until after its receipt of H.B. No. 11197 is
another speculation. As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while H.B. No. 11197
was transmitted to the Senate only on 18 November 1993. There is no evidence on record to show that both were
referred to the Senate Committee on Ways and Means at the same time. Finally, in respect of H.B. No. 11197, its
legislative process did not begin with its referral to the Senate’s Ways and Means Committee. It begin upon its
filing, as a Committee Bill of the House Committee on Ways and Means, in the House.
_______________
At 317.
29
746
6 ANNOTATED
Second violation.—Since SB No. 1129 is a revenue measure, it could not even be validly introduced or initiated in
the Senate. It follows too, that the Senate cannot validly act thereon.
Third violation.—Since SB No. 1129 could not have been validly introduced in the Senate and could not have
been validly acted on by the Senate, then it cannot be substituted by another revenue measure, SB No. 1630, which
the Senate Committee on Ways and Means introduced in substitution of SB No. 1129. The filing or introduction in
the Senate of SB No. 1630 also violated Section 24, Article VI of the Constitution.
VIOLATIONS OF SECTION 26(2), ARTICLE VI OF THE CONSTITUTION:
First violation.—The Senate, despite its lack of constitutional authority to consider SB No. 1630 or SB No. 1129
which the former substituted, opened deliberations on second reading of SB No. 1630 on 8 February 1994. On 24
March 1994, the Senate approved it on second reading and on third reading. That approval on the same day
30
violated Section 26(2), Article VI of the Constitution. The justification therefor was that on 24 February 1994 the
President certified to “the necessity of the enactment of SB No. 1630 . . . to meet a public emergency.”31
I submit, however, that the Presidential certification is void ab initio not necessarily for the reason adduced by
petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a bill which is prohibited from originating
therein. The only bill which could be properly certified on permissible constitutional grounds even if it had already
been transmitted to the Senate is HB No. 11197. As earlier observed, this was not so certified, although HB No.
9210 (one of those consolidated into HB No. 11197) was certified on 1 June 1993. 32
Also, the certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to HB No. 11197
because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129.
_______________

30
Id., Annex “14.”
31
Id., Annex “1.”
32
747
VOL. 235, AUGUST 25, 1994 747
Considering that the certification of SB No. 1630 is void, its approval on second and third readings in one day
violated Section 26(2), Article VI of the Constitution.
Second violation.—It further appears that on 24 June 1994, after the approval of SB No. 1630, the Secretary of
the Senate, upon directive of the Senate President, formally notified the House Speaker of the Senate’s approval
thereof and its request for a bicameral conference “in view of the disagreeing provisions of said bill and House Bill
No. 11197.” 33
It must be stressed again that HB No. 11197 was never submitted for or acted on second and third readings in
the Senate, and SB No. 1630 was never sent to the House for its concurrence. Elsewise stated, both were only half-
way through the legislative mill. Their submission to a conference committee was not only anomalously premature,
but violative of the constitutional rule on three readings.
The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise the procedure
would be endless, is unacceptable for, firstly, it violates Section 26, Rule XII of the Rules of the Senate and Section
85, Rule XIV of the Rules of the House, and, secondly, it is never endless. If the chamber of origin refuses to accept
the amendments of the other chamber, the request for conference shall be made.
VIOLATIONS OF THE RULES OF BOTH CHAMBERS; GRAVE ABUSE OF
DISCRETION.
The erroneous referral to the conference committee needs further discussion. Since S.B. No. 1630 was not a
substitute bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630) remained a bill which originated in the
Senate. Even assuming arguendo that it could be validly initiated in the Senate, it should have been first transmitted
to the House where it would undergo three readings. On the other hand, since HB No. 11197 was never acted upon
by the Senate on second and third readings, no differences or inconsistencies could as yet arise so as to warrant a
request for a conference. It should be noted that under Section
_______________
Consolidated Memorandum for Respondents, Annex “18.”

33
748
8 ANNOTATED
83, Rule XIV of the Rules of the House, it is only when the Senate shall have approved with amendments HB No.
11197 and the House declines to accept the amendments after having been notified thereof that the request for a
conference may be made by the House, not by the Senate. Conversely, the Senate’s request for a conference would
only be proper if, following the transmittal of SB No. 1630 to the House, it was approved by the latter with
amendments but the Senate rejected the amendments.
Indisputably then, when the request for a bicameral conference was made by the Senate, SB No. 1630 was not
yet transmitted to the House for consideration on three readings and HB No. 11197 was still in the Senate awaiting
consideration on second and third readings. Their referral to the bicameral conference committee was palpably
premature and, in so doing, both the Senate and the House acted without authority or with grave abuse of discretion.
Nothing, and absolutely nothing, could have been validly acted upon by the bicameral conference committee.
GRAVE ABUSE OF DISCRETION COMMITTED BY THE BICAMERAL
CONFERENCE COMMITTEE.
Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were committed by the bicameral
conference committee.
First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate. This assumption is
erroneous.
Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of Congress and
were properly and regularly submitted to it. As earlier discussed, the assumption is unfounded in fact.
Third, per the bicameral conference committee’s proceedings of 19 April 1994, Representative Exequiel Javier,
Chairman of the panel from the House, initially suggested that HB No. 11197 should be the “frame of reference,”
because it is a revenue measure, to which Senator Ernesto Maceda concurred. However, after an incompletely
recorded reaction of Senator Ernesto Herrera, Chairman of the Senate panel, Representative Javier seemed to agree
that “all amendments will be coming from the Senate.” The issue of what should be the “frame of reference” does
not appear to have been resolved. These facts are recorded
749
VOL. 235, AUGUST 25, 1994 749
in this wise, as quoted in the Consolidated Memorandum for Respondents: 34
Yes. That’s true for every revenue measure.

There’s no other way. The House Bill has got to
be the base. Of course, for the record, we know
that this is an administration; this is certified by
the President and I was about to put into the
recordsas I am saying now that your problem
about the impact on prices on the people was
already decided when the President and the
administration sent this to us and certified it.
They have already gotten over that political
implication of this bill and the economic impact
on prices.
“CHAIRMAN JAVIER.
First of all, what would be the basis, no, or
framework para huwag naman mawala yung
personality namin dito sa bicameral, no, because
the bill originates from the House because this is
a revenue bill, so we would just want to ask, we
make the House Bill as the frame of
reference, and then everything will just be
inserted?
HON. MACEDA.
Yes. That’s true for every revenue measure.
There’s no other way. The House Bill has got to
be the base. Of course, for the record, we know
that this is an administration; this is certified by
the President and I was about to put into the
recordsas I am saying now that your problem
about the impact on prices on the people was
already decided when the President and the
administration sent this to us and certified it.
They have already gotten over that political
implication of this bill and the economic impact
on prices.
CHAIRMAN HERRERA.
Yung concern mo about the bill as the reference
in this discussion is something that we can
just . . .
CHAIRMAN JAVIER.
We will just . . . all the amendments will be
coming from the Senate.
(BICAMERAL CONFERENCE ON MAJOR
DIFFERENCES BETWEEN HB NO. 11197 AND
SB NO. 1630 [Cte. on Ways & Means] APRIL 19,
1994, II-6 and II-7; italics supplied)”
These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be the principal measure on
which reconciliation of the differences should be based. However, since the Senate did not act on this Bill on second
and third readings because its Committee on Ways and Means did not deliberate on it but instead proposed SB No.
1630 in substitution of SB No. 1129, the suggestion has no factual basis. Then, when finally he agreed that “all
amendments will be coming from the Senate,” he
_______________
Page 22.
34
750
0 ANNOTATED
in fact withdrew the former suggestion and agreed that SB No. 1630, which is the Senate version of the Value
Added Tax (VAT) measure, should be the “frame of reference.” But then SB No. 1630 was never transmitted to the
House for the latter’s concurrence. Hence, it cannot serve as the “frame of reference” or as the basis for deliberation.
The posture taken by Representative Javier also indicates that SB No. 1630 should be taken as the amendment to HB
No. 11197. This, too, is unfounded because SB No. 1630 was not proposed in substitution of HB No. 11197.
Since SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass second and third
readings in the Senate, it logically follows that no disagreeing provisions had as yet arisen. The bicameral
conference committee erroneously assumed the contrary.
Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved by both chambers
of Congress and validly referred to the bicameral conference committee, the latter had very limited authority
thereon. It was created “in view of the disagreeing provisions of” the two bills. Its duty was limited to the
35
reconciliation of disagreeing provisions or the resolution of differences or inconsistencies. The committee
recognized that limited authority in the opening paragraph of its Report when it said:
36
“The Conference Committee on the disagreeing provisions of House Bill No. 11197 x x x and Senate Bill
No. 1630 x x x.”
Under such limited authority, it could only either (a) restore, wholly or partly, the specific provisions of HB No.
11197 amended by SB No. 1630, (b) sustain, wholly or partly, the Senate’s amendments, or (c) by way of a
compromise, to agree that neither provisions in HB No. 11197 amended by the Senate nor the latter’s amendments
thereto be carried into the final form of the former.
But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral conference committee
not only
_______________
Consolidated Memorandum for Respondents, Annex “18.”

35
Id., Annex, “19.”
36
751
VOL. 235, AUGUST 25, 1994 751
struck out non-disagreeing provisions of HB No. 11197 and SB No. 1630, i.e., provisions where both bills are in full
agreement; it added more activities or transactions to be covered by VAT, which were not within the contemplation
of both bills. Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were not
ready for referral to a conference, the bicameral conference committee clearly acted without jurisdiction or with
grave abuse of discretion when it consolidated both into one bill which became R.A. No. 7716.
APPROVAL BY BOTH CHAMBERS OF CONFERENCE COMMITTEE REPORT AND
PROPOSED BILL DID NOT CURE CONSTITUTIONAL INFIRMITIES.
I cannot agree with the suggestion that since both the Senate and the House had approved the bicameral conference
committee report and the bill proposed by it in substitution of HB No. 11197 and SB No. 1630, whatever infirmities
may have been committed by it were cured by ratification. This doctrine of ratification may apply to minor
procedural flaws or tolerable breaches of the parameters of the bicameral conference committee’s limited powers but
never to violations of the Constitution. Congress is not above the Constitution. In the instant case, since SB No.
1630 was introduced in violation of Section 24, Article VI of the Constitution, was passed in the Senate in violation
of the “three readings” rule, and was not transmitted to the House for the completion of the constitutional process of
legislation, and HB No. 11197 was not likewise passed by the Senate on second and third readings, neither the
Senate nor the House could validly approve the bicameral conference committee report and the proposed bill.
In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory provisions of the
Constitution and of the Rules of the Senate and of the House on the enactment of laws, R.A. No. 7716 is
unconstitutional and, therefore, null and void. A discussion then of the intrinsic validity of some of its provisions
would be unnecessary.
The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist from looking
behind the copy of the assailed measure as certified by the Senate President and the
752
2 ANNOTATED
Speaker of the House. I respectfully submit that the invocation is misplaced. First, as to the issue of origination, the
certification in this case explicitly states that R.A. No. 7716 is a “consolidation of House Bill No. 11197 and Senate
Bill No. 1630.” This is conclusive evidence that the measure did not originate exclusively in the House. Second, the
enrolled bill doctrine is of American origin, and unquestioned fealty to it may no longer be justified in view of the
expanded jurisdiction of this Court under Section 1, Article VIII of our Constitution which now expressly grants
37
authority to this Court 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.”
Third, even under the regime of the 1935 Constitution which did not contain the above provision, this Court, through
Mr. Chief Justice Makalintal, in Astorga vs. Villegas, declared that it cannot be truly said that Mabanag vs. Lopez
38
Vito has laid to rest the question of whether the enrolled bill doctrine or the journal entry rule should be adhered to
39
in this jurisdiction, and stated:

“As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the
presiding officers. It is merely a mode of authentication. The lawmaking process in Congress ends when
the bill is approved by both Houses, and the certification does not add to the validity of the bill or cure
any defect already present upon its passage. In other words, it is the approval of Congress and not the
signatures of the presiding officers that is essential. Thus the (1935) Constitution says that ‘[e]very bill
passed by the Congress shall, before it becomes law, be presented to the President.’ In Brown vs. Morris,
supra, the Supreme Court of Missouri, interpreting a similar provision in the
_______________
37
ISAGANI A. CRUZ, Philippine Political Law, 1991 ed., 226; Daza vs. Singson, 180 SCRA 496 [1989]; Coseteng vs.
Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844[1991]; Bengzon
vs. Senate Blue Ribbon Com- mittee, 203 SCRA 767 [1991]; Oposa vs. Factoran, 224 SCRA 792 [1993].
38
56 SCRA 714, 719, 723 [1974].
39
78 Phil. 1 [1947].
753
VOL. 235, AUGUST 25, 1994 753
State Constitution, said that the same ‘makes it clear that the indispensable step in the passage’ and it
follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, other proof
that it has ‘passed both houses will satisfy the constitutional requirement.’ ”
Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This is shown in the
disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion, citing Sutherland, Statutory Construction.
Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not acted on second and
third readings in the Senate and SB No. 1630, which was approved by the Senate on second and third readings in
substitution of SB No. 1129, was never transmitted to the House for its passage. Otherwise stated, they were only
passed in their respective chamber of origin but not in the other. In no way can each become a law under paragraph
2, Section 26, Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled bill
doctrine is to shirk its duty to hold “inviolate what is decreed by the Constitution.”
40
I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.
DISSENTING OPINION
ROMERO, J.:
Few issues brought before this Court for resolution have roiled the citizenry as much as the instant case brought by
nine petitioners which challenges the constitutionality of Republic Act No. 7716 (to be referred to herein as the
“Expanded Value Added Tax” or EVAT law to distinguish it from Executive Order No. 273 which is the VAT law
proper) that was enacted on May 5, 1994. A visceral issue, it has galvanized the populace into mass action and
strident protest even as the EVAT proponents have taken to podia and media in a post facto information campaign.
________________
Mutuc vs. COMELEC, 36 SCRA 228 [1970].

40
754
4 ANNOTATED
The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy but some unlikely
petitioners invoke unorthodox remedies. Three Senator-petitioners would nullify a statute that bore the indispensable
stamp of approval of their own Chamber with two of them publicly repudiating what they had earlier endorsed. With
two former colleagues, one of them an erstwhile Senate President, making common cause with them, they would
stay the implementation by the Executive Department of a law which they themselves have initiated. They address a
prayer to a co-equal Department to probe their official acts for any procedural irregularities they have themselves
committed lest the effects of these aberrations inflict such damage or irreparable loss as would bring down the wrath
of the people on their heads.
To the extent that they perceive that a vital cog in the internal machinery of the Legislature has malfunctioned
from having operated in blatant violation of the enabling Rules they have themselves laid down, they would now
plead that this other Branch of Government step in, invoking the exercise of what is at once a delicate and awesome
power. Undoubtedly, the case at bench is as much a test for the Legislature as it is for the Judiciary.
A backward glance on the Value Added Tax (VAT) is in order at this point.
The first codification of the country’s internal revenue laws was effected with the enactment of Commonwealth
Act No. 466, commonly known as the ‘National Internal Revenue Code’ which was approved on June 15, 1939 and
took effect on July 1, 1939, although the provisions on the income tax were made retroactive to January 1, 1939.
“Since 1939 when the turnover tax was replaced by the manufacturer’s sales tax, the Tax Code had provided for
a single-stage value-added tax on original sales by manufacturers, producers and importers computed on the ‘cost
deduction method’ and later, on the basis of the ‘tax credit method.’ The turnover tax was re-introduced in 1985 by
Presidential Decree No. 1991 (as amended by Presidential Decree No. 2006).” 1
_______________
Vitug, Jose C., COMPENDIUM OF TAX LAW AND JURISPRUDENCE, Third Revised Edition, 1993 at 201.
1
755
VOL. 235, AUGUST 25, 1994 755
In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine measures, one of
which proposed the adoption of the VAT, as well as the simplification of the sales tax structure and the abolition of
the turnover tax.
“Up until 1987, the system of taxing goods consisted of (a) an excise tax on certain selected articles (b) fixed
and percentage taxes on original and subsequent sales, on importations and on milled articles and (c) mining taxes
on mineral products. Services were subjected to percentage taxes based mainly on gross receipts.” 2
On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which adopted the
VAT. From the former single-stage value-added tax, it introduced the multi-stage VAT system where “the value-
added tax is imposed on the sale of and distribution process culminating in sale, to the final consumer. Generally
described, the taxpayer (the seller) determines his tax liability by computing the tax on the gross selling price or
gross receipt (“output tax”) and subtracting or crediting the earlier VAT on the purchase or importation of goods or
on the sale of service (“input tax”) against the tax due on his own sale.”
3
On January 1, 1988, implementing rules and regulations for the VAT were promulgated. President Aquino then
issued Proclamation No. 219 on February 12, 1988 urging the public and private sectors to join the nationwide
consumers’ education campaign for VAT.
Soon after the implementation of Executive Order No. 273, its constitutionality was assailed before this Court in
the case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc., et al. v. Tan. The four petitioners
4
sought to nullify the VAT law “for being unconstitutional in that its enactment is not allegedly within the powers of
the President; that the VAT is oppressive, discriminatory, regressive, and violates the due process and equal
protection clauses and other provisions of the 1987
_______________
Ibid.
2
Ibid.
3
L-81311, June 30, 1988, 163 SCRA 371 with Justice Teodoro R. Padilla as ponente.
4
756
6 ANNOTATED
Constitution.” In dismissing the consolidated petitions, this Court stated:
5
“The Court, following the time-honored doctrine of separation of powers cannot substitute its judgment
for that of the President as to the wisdom, justice and advisability of the VAT. The Court can only look
into and determine whether or not Executive Order No. 273 was enacted and made effective as law, in the
manner required by and consistent with, the Constitution, and to make sure that it was not issued in grave
abuse of discretion amounting to lack or excess of jurisdiction; and, in this regard, the Court finds no
reason to impede its application or continued implementation.” 6
Although declared constitutional, the VAT law was sought to be amended from 1992 on by a series of bills filed in
both Houses of Congress. In chronological sequence, these were:
HB/SB No. Date Filed in Congress
HB No. 253 —July 22, 1992
HB No. 771 —August 10, 1992
HB No. 2450 —September 9, 1992
Senate Res. No. 734 7
—September 10, 1992
HB No. 7033 —February 3, 1993
SB No. 1129 8
—March 1, 1993
HB No. 8086 —March 9, 1993
HB No. 9030 —May 11, 1993
_______________
5
Ibid at 378.
6
Ibid at 385.
7
Senate Resolution No. 734 filed on September 10, 1992 was entitled “Resolution Urging the House Committee on
Ways and Means to Study the Proposal to Exempt Local Movie Producers from the Payment of the Value-Added Tax as
an Incentive to the Production of Quality and Wholesome Filipino Movies, Whenever They Feature an All-Filipino Cast
of Actors and Actresses.”
8
SB No. 1129 sought to include under the VAT Law such items as lease of real properties, excluding agricultural
lands and residential properties with monthly rentals of less than P10,000.00; hotels; restaurants, eating places, caterers;
services by persons in the exercise of their professions; actors, actresses, talents, singers and professional athletes; and
lawyers, accountants, doctors and other professionals registered with the Philippine Regulatory Commission.
757
VOL. 235, AUGUST 25, 1994 757
HB No. 9210 9
—May 19,
1993
HB No. 9297 —May 25,
1993
HB No. 10012 —July 28,
1993
HB No. 10100 —August 3,
1993
HB No. 11197 in substitution —November
of HB Nos. 253, 771, 2450, 5, 1993
7033, 8086, 9030, 9210,
9297, 10012 and 10100 10
We now trace the course taken by H.B. No. 11197 and S.B. No. 1129.
HB/SB No.
HB No. 11197 was approved in the —November
Lower House on second reading 11, 1993
HB No. 11197 was approved in the —November
Lower House on third reading and 17, 1993
voted upon with 114 Yeas and 12 —
Nays November
18, 1993
HB No. 11197 was transmitted to —February 7,
the Senate Senate Committee on 1994
Ways and Means submitted Com.
Report No. 349 recommending for
approval SB No. 1630 in
substitution of SB No. 1129, taking
into consideration PS Res. No. 734
and HB No. 11197 11
_______________
9
On June 1, 1993, President Fidel V. Ramos certified for immediate enactment House Bill No. 9210 entitled “An Act
Amending Title IV and Sections 237 and 238 of the National Internal Revenue Code, as amended, to meet a public
emergency.”
10
House Bill No. 11197 is entitled “An Act Restructuring the Value-Added Tax (VAT) System to Widen its Tax Base
and Enhance Its Administration, Amending for these Purposes Sections 99, 100, 102, 103, 104, 105, 106, 107, 108 and
110 of Title IV, 112, 115 and 116 of Title V, and 236, 237, and 238 of Title IX and Repealing Sections 113 and 114 of
Title V, all of the National Internal Revenue Code, as Amended.”
11
Senate Bill No. 1630 is entitled “An Act Restructuring The Value-Added Tax (VAT) System to Widen its Tax Base
and Enhance Its Administration, Amending for these Purposes Sections 99, 100, 102, 103, 104, 105, 107, 108 and 110 of
Title IV, 112 of Title V, and 236, 237 and 238 of Title IX, and Repealing Sections 113, 114 and 116 of Title V, all of the
National Internal Revenue Code, as Amended, and for other Purposes.”
758
758 SUPREME COURT
REPORTS
ANNOTATED
Certification by President —March 22, 1994
Fidel V. Ramos of Senate
Bill No. 1630 for
immediate enactment to
meet a public emergency
SB No. 1630 was approved —March 24, 1994
by the Senate on second
and third readings and
subsequently voted upon
with 13 yeas, none against
and one abstention
Transmittal by the Senate —March 24, 1994
to the Lower House of a
request for a conference in
view of disagreeing
provisions of SB No. 1630
and HB No. 11197
The Bicameral Conference —April 13, 19, 20,
Committee conducted 21, 25
various meetings to
reconcile the proposals on
the VAT
The House agreed on the —April 27, 1994
Conference Committee
Report
The Senate agreed on the —May 2, 1994
Conference Committee
Report
The President signed —May 5, 1994
Republic Act No. 7716—
The Expanded VAT Law 12
Republic Act No. 7716 was —May 12, 1994

published in two
newspapers of general
circulation
Republic Act No. 7716 —May 28, 1994
became effective
Republic Act No. 7716 merely expanded the base of the VAT law even as the tax retained its multi-stage character.
At the oral hearing held on July 7, 1994, this Court delimited petitioners’ arguments to the following issues
culled from their respective petitions.
PROCEDURAL ISSUES
Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13
________________
Republic Act No. 7716 is entitled “An Act Restructuring The Value-Added Tax (VAT) System, Widening Its Tax
12
Base And Enhancing Its Administration, And For These Purposes Amending And Repealing The Relevant Provisions Of
The National Internal Revenue Code, as amended, and for other purposes.”
Article VI, Section 24: “All appropriation, revenue or tariff bills authorizing increase of the public debt, bills of local
13
application, and
759
VOL. 235, AUGUST 25, 1994 759
Does it violate Article VI, Section 26, paragraph 2, of the Constitution? 14
What is the extent of the power of the Bicameral Conference Committee?

SUBSTANTIVE ISSUES
Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:
1. 1.Section 1 15
2. 2.Section 416
3. 3.Section 517
4. 4.Section 10 18
_______________
private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.”
Article VI, Section 26, paragraph 2: “No bill passed by either House shall become a law unless it has passed three
14
readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the president certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered in the Journal.”
Article III, Section 1: “No person shall be deprived of life, liberty, or property without due process of law, nor shall
15
any person be denied the equal protection of the laws.”

Article III, Section 4: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
16
right of the people peaceably to assemble and petition the government for redress of grievances.”
Article III, Section 5: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise
17
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.”
Article III, Section 10: “No law impairing the obligation of contracts shall be passed.”
18
760
0 ANNOTATED
Does the law violate the following other provisions of the Constitution?
1. 1.Article VI, Section 28, paragraph 1 19
2. 2.Article VI, Section 28, paragraph 3 20
As a result of the unedifying experience of the past where the Court had the propensity to steer clear of questions it
perceived to be “political” in nature, the present Constitution, in contrast, has explicitly expanded judicial power to
include the duty of the courts, especially the Supreme Court, “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.” I submit that under this explicit mandate, the Court is empowered to rule upon acts of other
21
Government entities for the purpose of determining whether there may have been, in fact, irregularities committed
tantamount to violation of the Constitution, which case would clearly constitute a grave abuse of discretion on their
part.
In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the former Chief
Justice Roberto R. Concepcion, “the judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter exhibit its
wonted reticence
_______________
Article VI, Section 28, paragraph 1: “The rule of taxation shall be uniform and equitable. The Congress shall evolve
19
a progressive system of taxation.”

Article VI, Section 28, paragraph 3: “Charitable institutions, churches and parsonages or convents appurtenant
20
thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively
used for religious, charitable, or educational purposes shall be exempt from taxation.”
Constitution, Article VIII, Section 1.
21
761
VOL. 235, AUGUST 25, 1994 761
by claiming that such matters constitute a political question.”22
In the instant petitions, this Court is called upon, not so much to exercise its traditional power of judicial review
as to determine whether or not there has indeed been a grave abuse of discretion on the part of the Legislature
amounting to lack or excess of jurisdiction.
Where there are grounds to resolve a case without touching on its constitutionality, the Court will do so with
utmost alacrity in due deference to the doctrine of separation of powers anchored on the respect that must be
accorded to the other branches of government which are coordinate, coequal and, as far as practicable, independent
of one another.
Once it is palpable that the constitutional issue is unavoidable, then it is time to assume jurisdiction, provided
that the following requisites for a judicial inquiry are met: that there must be an actual and appropriate case; a
personal and substantial interest of the party raising the constitutional question; the constitutional question must be
raised at the earliest possible opportunity and the decision of the constitutional question must be necessary to the
determination of the case itself, the same being the lis motaof the case. 23
Having assured ourselves that the above-cited requisites are present in the instant petitions, we proceed to take
them up.
ARTICLE VI, SECTION 24
Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of Article VI, Section 24
of the Constitution which provides:
“All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in the House of Representatives, but the Senate
may propose or concur with amendments.”
_______________
Volume One, CONCOM RECORD, p. 436.

22
Luz Farms v. The Hon. Secretary of the Department of Agrarian Reform, G.R. No. 86889, December 4, 1990, 192
23
SCRA 51; Dumlao, et al. v. Commission on Elections, G.R. No. 52245, January 22, 1980, 95 SCRA 392; People v.
Vera, 65 Phil. 56 (1937).
762
2 ANNOTATED
In G.R. Nos. 115455 and 115781, petitioners argue:
1. (a)The bill which became Republic Act No. 7716 did not originate exclusively in the House of
Representatives. The Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No. 1630, and
proceeded to vote and approve the same after second and third readings.
2. (b)The Senate exceeded its authority to “propose or concur with amendments” when it submitted its own
bill, S.B. No. 1630, recommending its approval “in substitution of S.B. No. 1129, taking into
consideration P.S. Res. No. 734 and H.B. No. 11197.”
3. (c)H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the Senate on
second and third readings, as what was voted upon was S.B. No. 1630.
Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution which was, in
turn, patterned after Article I, Section 7 (1) of the Constitution of the United States, which states:
“All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose
or concur with amendments as on other bills.”
The historical precedent for requiring revenue bills to originate in Congress is explained in the U.S. case of Morgan
v. Murray: 24
“The constitutional requirement that all bills for raising revenue shall originate in the House of
Representatives stemmed from a remedial outgrowth of the historic conflict between Parliament (i.e.,
Commons) and the Crown, whose ability to dominate the monarchially appointive and hereditary Lords
was patent. See 1 Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional Limitations, pp.
267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There was a measure of like
justification for the insertion of the provision of articles I, S 7, cl. 1, of the Federal Constitution. At that
time (1787) and thereafter until the adoption (in 1913) of the Seventeenth Amendment providing for the
direct election of senators, the members of the United States Senate were elected for each state by the
joint vote of both houses of the Legislature of the respective states, and hence, were removed from the
people. x x x”
________________
328 P. 2d 644 (1958).

24
763
VOL. 235, AUGUST 25, 1994 763
The legislative authority under the 1935 Constitution being unicameral, in the form of the National Assembly, it
served no purpose to include the subject provision in the draft submitted by the 1934 Constitutional Convention to
the Filipino people for ratification.
In 1940, however, the Constitution was amended to establish a bicameral Congress of the Philippines composed
of a House of Representatives and a Senate.
In the wake of the creation of a new legislative machinery, new provisions were enacted regarding the law-
making power of Congress. The National Assembly explained how the final formulation of the subject provision
came about:
“The concurrence of both houses would be necessary to the enactment of a law. However, all
appropriation, revenue or tariff bills, bills authorizing an increase of the public debt, bills of local
application, and private bills, should originate exclusively in the House of Representatives, although the
Senate could propose or concur with amendments.
In one of the first drafts of the amendments, it was proposed to give both houses equal powers in
lawmaking. There was, however, much opposition on the part of several members of the Assembly. In
another draft, the following provision, more restrictive than the present provision in the amendment, was
proposed and for sometime was seriously considered:
‘All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills shall originate
exclusively in the Assembly, but the Senate may propose or concur with amendments. In case of disapproval by the
Senate of any such bills, the Assembly may repass the same by a two-thirds vote of all its members, and thereupon,
the bill so repassed shall be deemed enacted and may be submitted to the President for corresponding action. In the
event that the Senate should fail to finally act on any such bills, the Assembly may, after thirty days from the
opening of the next regular sessions of the same legislative term, reapprove the same with a vote of two-thirds of all
the members of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted to
the president for corresponding action.’
However, the special committee voted finally to report the present amending provision as it is now
worded; and in that form it was approved by the National Assembly with the approval of Resolution No.
764
4 ANNOTATED
38 and later of Resolution No. 73.” (Italics supplied)
25
Thus, the present Constitution is identically worded as its 1935 precursor: “All appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with amendments.” (Italics supplied)
That all revenue bills, such as Republic Act No. 7716, should “originate exclusively in the House of
Representatives” logically flows from the more representative and broadly-based character of this Chamber.
“It is said that the House of Representatives being the more popular branch of the legislature, being closer to the
people, and having more frequent contacts with them than the Senate, should have the privilege of taking the
initiative in the proposals of revenue and tax projects, the disposal of the people’s money, and the contracting of
public indebtedness.
These powers of initiative in the raising and spending of public funds enable the House of Representatives not
only to implement but even to determine the fiscal policies of the government. They place on its shoulders much of
the responsibility of solving the financial problems of the government, which are so closely related to the economic
life of the country, and of deciding on the proper distribution of revenues for such uses as may best advance public
interests.”26
The popular nature of the Lower House has been more pronounced with the inclusion of Presidentially-
appointed sectoral representatives, as provided in Article VI, Section 5(2), of the Constitution, thus: “The party-list
representatives shall constitute twenty per centum of the total number of representatives including those under the
party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
________________
Aruego, Jose M., PHILIPPINE POLITICAL LAW, KNOW YOUR CONSTITUTION, University Publishing Co.,
25
1950, pp. 65-66.

Sinco, Vicente G., PHILIPPINE POLITICAL LAW, Eleventh Edition, p. 196.
26
765
VOL. 235, AUGUST 25, 1994 765
selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.” (Italics supplied)
This novel provision which was implemented in the Batasang Pambansa during the martial law regime was 27
eventually incorporated in the present Constitution in order to give those from
_______________
Remarks of Commissioner Eulogio Lerum: “At a time when we did not have a lawmaking body after martial law
27
was declared, there were tripartite conferences called by the President for the purpose of acting as a recommendatory body
regarding settlement of labor and management disputes. During the said conferences, labor had shown that it can act with
maturity. As a result, in 1976, an amendment was introduced in the Constitution providing for sectoral representation. In
the Constitution that was approved, the number of sectors was not indicated. However, in the Election Code of 1978, it
provided for three sectors; namely, industrial labor, agricultural labor and the youth. The agricultural labor was given four
seats; two for Luzon, one for the Visayas and one for Mindanao. The same is true with the industrial labor sector. As far as
the youth are concerned, they were also given four seats: two for Luzon, one for Mindanao and one for the Visayas, with
the condition that there will be an additional two at large. And so, the youth had six representatives plus four from the
agricultural labor sector and four from the industrial labor sector—we had 14 seats.
In 1981, the Constitution was again amended. In the course of the amendment, the labor representatives in the
Batasang Pambansa proposed that sectoral representation be included as a permanent addition to the lawmaking body.
Again, in that Constitution which was approved in 1981, the number and the name of the sectors were not indicated.
However, in the Election Code that was approved before the 1984 election, there was really a definition of who will
constitute the sectors and how they will be appointed. Let me quote from that law that was passed in 1984. Under Section
27 of Batas Pambansa Blg. 881, the scope of the sectors has been defined as follows:
The agricultural labor sector covers all persons who personally and physically till the land as their principal
occupation. It includes agricultural tenants and lessees, rural workers and farm employees, owner-cultivators, settlers and
small fishermen.
The industrial labor sector includes all nonagricultural workers and employees.
766
6 ANNOTATED
the marginalized and often deprived sector, an opportunity to have their voices heard in the halls of the Legislature,
thus giving substance and meaning to the concept of “people empowerment.”
That the Congressmen indeed have access to, and consult their constituencies has been demonstrated often
enough by the fact that even after a House bill has been transmitted to the Senate for concurrence, some
Congressmen have been known to express their desire to change their earlier official position or reverse themselves
after having heard their constituents’ adverse reactions to their representations.
In trying to determine whether the mandate of the Constitution with regard to the initiation of revenue bills has
been preserved inviolate, we have recourse to the tried and tested method of definition of terms. The term
“originate” is defined by Webster’s New International Dictionary (3rd Edition, 1986) as follows: “v.i., to come into
being; begin; to start.”
On the other hand, the word “exclusively” is defined by the same Webster’s Dictionary as “in an exclusive
manner; to the exclusion of all others; only; as, it is his, exclusively.” Black’s Law Dictionary has this definition:
“apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all others; without
admission of others to participation; in a manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142
S.W. 2d 519, 521, 522, 523.”
This Court had occasion to define the term “exclusive” as follows:
“. . . In its usual and generally accepted sense, the term means possessed to the exclusion of others;
appertaining to the subject alone; not including, admitting or pertaining to another or others; undivided,
sole.” 28
When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No. 115455 whether he
considers the
________________
The youth sector embraces persons not more than twenty-five years of age.” (Volume Two, CONCOM RECORD, p.
564).
City Mayor, et al. v. The Chief, Philippine Constabulary and Col. Nicanor Garcia, L-20346, October 31, 1967, 21
28
SCRA 673.
767
VOL. 235, AUGUST 25, 1994 767
word “exclusively” to be synonymous with “solely,” he replied in the affirmative. 29
A careful examination of the legislative history traced earlier in this decision shows that the original VAT law,
Executive Order No. 273, was sought to be amended by ten House bills which finally culminated in House Bill No.
11197, as well as two Senate bills. It is to be noted that the first House Bill No. 253 was filed on July 22, 1992, and
two other House bills followed in quick succession on August 10 and September 9, 1992 before a Senate Resolution,
namely, Senate Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper, viz., Senate Bill
No. 1129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had their start in the House and before
any Senate bill amending the VAT law was filed. In point of time and venue, the conclusion is ineluctable that
Republic Act No. 7716, which is indisputably a revenue measure, originated in the House of Representatives in the
form of House Bill No. 253, the first EVAT bill.
Additionally, the content and substance of the ten amendatory House Bills filed over the roughly one-year period
from July 1992 to August 1993 reenforce the position that these revenue bills, pertaining as they do, to Executive
Order No. 273, the prevailing VAT law, originated in the Lower House.
________________
Transcript of the Stenographic Notes (TSN) on the Hearing Had on Thursday, July 7, 1994, pp. 18-19: JUSTICE
29
FLERIDA RUTH P. ROMERO:
Q—Mr. Counsel, may I interrupt at this stage?
When you say that according to the Constitution such Revenue Bills should originate exclusively from the House. In this instance, did
it not originally originate exclusively from the House?
The word used was not “solely”; if there were Bills later also introduced, let us say in the Senate, but the House Bill came ahead.
So, are you using the two (2) words originate “exclusively” and “solely” synonymously?
SENATOR TOLENTINO:
A—The verb “originate” remains the same, Your Honor, but the word “exclusively,” as I said, means “solely.” x x x
768
8 ANNOTATED
House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were intended to restructure the
VAT system by exempting or imposing the tax on certain items or otherwise introducing reforms in the mechanics
of implementation. Of these, House Bill No. 9210 was favored with a Presidential certification on the need for its
30
immediate enactment to meet a public emergency. Easily the most comprehensive, it noted that the revenue
performance of the VAT, being far from satisfactory since the collections have always fallen short of projections,
“the system is rendered inefficient, inequitable and less comprehensive.” Hence, the Bill proposed several
amendments designed to widen the tax base of the VAT and enhance its administration. 31
That House Bill No. 11197 being a revenue bill, originated from the Lower House was acknowledged, in fact
was virtually taken for granted, by the Chairmen of the Committee on Ways and Means of both the House of
Representatives and the Senate. Consequently, at the April 19, 1994 meeting of the Bicameral Conference
Committee, the Members agreed to make the House Bill as the “frame of reference” or “base” of the discussions of
the Bicameral Conference Committee with the “amendments” or “insertions to emanate from the Senate.” 32
________________
H.B. 771—exempting the sale of copra from VAT coverage; H.B. 2450—exempting the lessors or distributors of
30
cinematographic films from paying the VAT; H.B. 7033—amending Sec. 103 of the National Internal Revenue Code, as
amended by EO 273; H.B. 8086—exempting packaging materials of export products from the VAT; H.B. 9030—
amending Sec. 120 of the NIRC, as renumbered by EO 273; H.B. 9210—amending Title IV and Sections 237 and 238 of
the NIRC; H.B. 9297—restructuring the VAT system by expanding its tax base, and amending Sections 99, 100 (A), 102
(A), 103, 113, 114, 115 and 116 of the NIRC; H.B. 10012—reducing the rate of VAT imposed on sale and importation of
goods, and sale of services; H.B. 10100—amending certain provisions of the NIRC on VAT.
Explanatory Note of House Bill No. 9210.
31
Excerpts from the April 19, 1994 meeting of the Bicameral Conference Committee: “CHAIRMAN Javier. First of
32
all, what would be the basis, no, or framework para huwag naman mawala yung personality namin dito sa bicameral, no,
because the bill originates from the House because this is a revenue bill, so we would just want to ask, we make the House
Bill as the frame of reference, and then
769
VOL. 235, AUGUST 25, 1994 769
As to whether the bills originated exclusively in the Lower House is altogether a different matter. Obviously, bills
amendatory of VAT did not originate solely in the House to the exclusion of all others for there were P.S. Res. No.
734 filed in the Senate on September 10, 1992 followed by Senate Bill No. 1129 which was filed on March 1, 1993.
About a year later, this was substituted by Senate Bill No. 1630 that eventually became the EVAT law, namely,
Republic Act No. 7716.
Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that House Bill No.
11197 which substituted all the prior bills introduced in said House complied with the required readings, that is, the
first reading consisting of the reading of the title and referral to the appropriate Committee, approval on second
reading on November 11, 1993 and on third reading on November 17, 1993 before being finally transmitted to the
Senate. In the Senate, its identity was preserved and its provisions were taken into consideration when the Senate
Committee on Ways and Means submitted Com. Report No. 349 which recommended for approval “S.B. No 1630
in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197.” At this stage, the
subject bill may be considered to have passed first reading in the Senate with the submission of said Committee
Report No. 349 by the Senate Committee on Ways and Means to which it had been referred earlier. What
_______________
everything will just be inserted?

“HON. MACEDA. Yes, That’s true for every revenue measure. There’s no other way. The House Bill has got to
be the base. Of course, for the record, we know that this is an administration bill; this is certified by the president and I
was about to put into the records as I am saying now that your problem about the impact on prices on the people was
already decided when the President and the administration sent this to us and certified it. They have already gotten
over that political implication of this bill and the economic impact on prices.
“CHAIRMAN HERRERA. Yung concern mo about the bill as the reference in this discussion is something that
we can just. . . .
“CHAIRMAN JAVIER. We will just . . . all the amendments will be coming from the Senate.”
770
0 ANNOTATED
remained, therefore, was no longer House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of
transmitting the bill to the Lower House for its concurrence and amendments, if any, took a “shortcut,” bypassed the
Lower House and instead, approved Senate Bill No. 1630 on both second and third readings on the same day, March
24, 1994.
The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its approval is
fatal inasmuch as the other chamber of legislature was not afforded the opportunity to deliberate and make known its
views. It is no idle dictum that no less than the Constitution ordains: “The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives ...” (Italics supplied)
33
It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had “taken into consideration” House
Bill No. 11197 was not returned to the Lower House for deliberation, the latter Chamber had no opportunity at all to
express its views thereon or to introduce any amendment. The customary practice is, after the Senate has considered
the Lower House Bill, it returns the same to the House of origin with its amendments. In the event that there may be
any differences between the two, the same shall then be referred to a Conference Committee composed of members
from both Chambers which shall then proceed to reconcile said differences.
In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter informing the latter
that it had “passed S. No. 1630 entitled . . . (and) in view of the disagreeing provisions of said bill and House Bill
No. 11197, entitled . . . the Senate requests a conference . . .” This, in spite of the fact that Com. Report No. 349 of
the Senate Committee on Ways and Means had already recommended for approval on February 7, 1994 “S.B. No.
1630 . . . taking into consideration H.B. No. 11197.” Clearly, the Conference Committee could only have acted upon
Senate Bill No. 1630, for House Bill No. 11197 had already been fused into the former.
At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this writer’s query,
that he had
_______________
Article VI, Section 1.

33
771
VOL. 235, AUGUST 25, 1994 771
attempted to rectify some of the perceived irregularities by presenting a motion in the Senate to recall the bill from
the Conference Committee so that it could revert to the period of amendment, but he was outvoted, in fact
“slaughtered.” 34
In accordance with the Rules of the House of Representatives and the Senate, Republic Act No. 7716 was duly
authenticated after it was signed by the President of the Senate and the Speaker of the House of Representatives
followed by the certifications of the Secretary of the Senate and the Acting Secretary General of the House of
Representatives. With the signature of
35
________________
Transcript of the Stenographic Notes (TSN) on the Hearing Had on Thursday, July 7, 1994, pp. 45-46:
34
“Justice Romero: Q: Mr. Counsel, is it not a fact that in the Bicameral Conference Committee, you presented a
Motion to return the Bill as it was to the Lower House with also your proposal that this be referred to a Referendum
for the entire nation to vote upon, then Senator Wigberto Tañada amended your Motion and convinced you to drop
that portion about referral to a Referendum and you agreed.
So that Motion of yours to return to the House was the one voted upon by the Bicameral Conference Committee
and it lost.
What can you say to that?
Senator Tolentino: A: No, No, if Your Honor please. My Motion was voted upon by the Senate itself because I
presented that said motion in order to recall the Bill from the Bicameral Conference Committee so that the Senate
could go back to the period of amendment and see if we could amend the House Bill itself, but that was defeated. So,
it became academic. Thus, what we did we proceeded with the procedure already being followed by the Senate.
I thought, as a matter of fact, that was the one way of correcting this procedural error, but I was only one (1), or
two (2), or three (3) of us only, then we were defeated in the voting, if Your Honor please.
Justice Romero: Q: You mean you were outvoted?
Senator Tolentino: A: Yes, Your Honor; we were actually slaughtered in the voting, so to speak, if Your Honor
please.”
The certification states: “This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was
35
finally passed by the House of Representatives and the Senate on April 7, 1994 and May 2, 1994, respectively.”
772
2 ANNOTATED
President Fidel V. Ramos under the words “Approved: 5 May 1994,” it was finally promulgated.
Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which is defined as
one “which has been duly introduced, finally passed by both houses, signed by the proper officers of each, approved
by the governor (or president) and filed by the secretary of state.” 36
Stated differently:
“It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus
attested, has received in due form, the sanction of the legislative branch of the government, and that it is
delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be
presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public
archives, its authentication as a bill that has passed Congress should be deemed complete and
unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled
Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the
House of Representatives, of the President of the Senate, and of the President of the United States, carries,
on its face, a solemn assurance by the legislative and executive departments of the government, charged,
respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The
respect due to coequal and independent departments requires the judicial department to act upon that
assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving
the courts to determine, when the question properly arises, whether the Act, so authenticated, is in
conformity with the Constitution.” 37
The enrolled bill assumes importance when there is some variance between what actually transpired in the halls of
Congress, as reflected in its journals, and as shown in the text of the law as finally enacted. But suppose the journals
of either or both Houses fail to disclose that the law was passed in accordance with what was certified to by their
respective presiding officers and the President. Or that certain constitutional requirements regarding its passage were
not observed, as in the instant case.
_______________
BLACK’S LAW DICTIONARY, 5th Ed. (1979).

36
Field v. Clark, 143 U.S. 649, 36 L ed. 294.

37
773
VOL. 235, AUGUST 25, 1994 773
Which shall prevail: the journal or the enrolled bill?
A word on the journal.
“The journal is the official record of the acts of a legislative body. It should be a true record of the proceedings
arranged in chronological order. It should be a record of what is done rather than what is said. The journal should be
a clear, concise, unembellished statement of all proposals made and all actions taken complying with all
requirements of constitutions, statutes, charters or rules concerning what is to be recorded and how it is to be
recorded.” 38
Article VI, Section 16 (4) of the Constitution ordains:

“Each house shall keep a Journal of its proceedings, and from time to time publish the same, excepting
such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at
the request of one-fifth of the Members present, be entered in the Journal.
Each House shall also keep a Record of its proceedings.” (Italics supplied)
The rationale behind the above provision and of the “journal entry rule” is as follows:
“It is apparent that the object of this provision is to make the legislature show what it has done, leaving
nothing whatever to implication. And, when the legislature says what it has done, with regard to the
passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence proves
nothing where one is commanded to speak. . . . Our constitution commands certain things to be done in
regard to the passage of a bill, and says that no bill shall become a law unless these things are done. It
seems a travesty upon our supreme law to say that it guaranties to the people the right to have their laws
made in this manner only, and that there is no way of enforcing this right, or for the court to say that this
is law when the constitution says it is not law. There is one safe course which is in harmony with the
constitution, and that is to adhere to the rule that the legislature must show, as commanded by the
constitution, that it has done everything required by the constitution to be done in the serious and
important matter of making laws. This is the rule of evidence
_______________
Mason, Paul, MASON’s MANUAL OF LEGISLATIVE PROCEDURE, 1953.

38
774
4 ANNOTATED
provided by the constitution. It is not presumptuous in the courts, nor disrespectful to the legislature, to
judge the acts of the legislature by its own evidence.” 39
Confronted with a discrepancy between the journal proceedings and the law as duly enacted, courts have indulged in
different theories. The “enrolled bill” and “journal entry” rules, being rooted deep in the Parliamentary practices of
England where there is no written constitution, and then transplanted to the United States, it may be instructive to
examine which rule prevails in the latter country through which, by a process of legislative osmosis, we adopted
them in turn.
“There seems to be three distinct and different rules as applicable to the enrolled bill recognized by the
various courts of this country. The first of these rules appears to be that the enrolled bill is the ultimate
proof and exclusive and conclusive evidence that the bill passed the legislature in accordance with the
provisions of the Constitution. Such has been the holding in California, Georgia, Kentucky, Texas,
Washington, New Mexico, Mississippi, Indiana, South Dakota, and may be some others.
The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the
journals of the Legislature to show that the constitutional mandates were not complied with by the
Legislature, except as to those provisions of the Constitu-tion, compliance with which is expressly
required to be shown on the journal. This rule has been adopted in South Carolina, Montana, Oklahoma,
Utah, Ohio, New Jersey, United States Supreme Court, and others.
The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the
mandatory provisions of the Constitution have been complied with and that resort may be had to the
journals to refute that presumption, and if the constitutional provision is one, compliance with which is
expressly required by the Constitution to be shown on the journals, then the mere silence of the journals
to show a compliance therewith will refute the presumption. This rule has been adopted in Illinois,
Florida, Kansas, Louisiana, Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona, Oregon, New
Jersey, Colorado, and others.” 40
_______________
Cohn v. Kingsley, 49 P. 985 (1897).

39
Smith v. Thompson, 258 N.W. 190.

40
775
VOL. 235, AUGUST 25, 1994 775
In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of Kentucky which had
subscribed in the past to the first of the three theories, made the pronouncement that it had shifted its stand and
would henceforth adopt the third. It justified its changed stance, thus:
“We believe that a more reasonable rule is the one which Professor Sutherland describes as the ‘extrinsic
evidence’ rule . . . . Under this approach there is a prima facie presumption that an enrolled bill is valid,
but such presumption may be over-come by clear satisfactory and convincing evidence establishing that
constitutional requirements have not been met.” 41
What rule, if any, has been adopted in this jurisdiction?

Advocates of the “journal entry rule” cite the 1916 decision in U.S. v. Pons where this Court placed reliance on
42
the legislative journals to determine whether Act No. 2381 was passed on February 28, 1914 which is what appears
in the Journal, or on March 1, 1914 which was closer to the truth. The confusion was caused by the
adjournment sine die at midnight of February 28, 1914 of the Philippine Commission.
A close examination of the decision reveals that the Court did not apply the “journal entry rule” vis-a-vis the
“enrolled bill rule” but the former as against what are “behind the legislative journals.”
“Passing over the question of whether the printed Act (No. 2381), published by authority of law, is
conclusive evidence as to the date when it was passed, we will inquire whether the courts may go behind
the legislative journals for the purpose of determining the date of adjournment when such journals are
clear and explicit.” 43
It is to be noted from the above that the Court “passed over” the probative value to be accorded to the enrolled bill.
Opting for the journals, the Court proceeded to explain:
________________
602 S.W. 2d 420 (1980).

41
34 Phil. 729 (1916).

42
Ibid at 733.
43
776
6 ANNOTATED
“From their very nature and object, the records of the Legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are, as
we have said clear and explicit, would be to violate both the letter and the spirit of the organic laws by
which the Philippine Government was brought into existence, to invade a coordinate and independent
department of the Government, and to interfere with the legitimate powers and functions of the
Legislature.” 44
Following the courts in the United States since the Constitution of the Philippine Government is modeled after that
of the Federal Government, the Court did not hesitate to follow the courts in said country, i.e., to consider the
journals decisive of the point at issue. Thus: “The journals say that the Legislature adjourned at 12 midnight on
February 28, 1914. This settles the question and the court did not err in declining to go behind these journals.”
45
The Court made a categorical stand for the “enrolled bill rule” for the first time in the 1947 case of Mabanag v.
Lopez Vito where it held that an enrolled bill imports absolute verity and is binding on the courts. This Court held
46
itself bound by an authenticated resolution, despite the fact that the vote of three-fourths of the Members of the
Congress (as required by the Constitution to approve proposals for constitutional amendments) was not actually
obtained on account of the suspension of some members of the House of Representatives and the Senate. In this
connection, the Court invoked the “enrolled bill rule” in this wise: “If a political question conclusively binds the
judges out of respect to the political departments, a duly certified law or resolution also binds the judges under the
‘enrolled bill rule’ born of that respect.”
47
Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other reason than that
it conforms to the expressed policy of our law making body (i.e., Sec. 313 of the old Code of Civil Procedure, as
amended by Act No. 2210), the Court said that “duly certified copies shall be conclusive proof of
_______________
Ibid at 733-734.
44
Ibid at 735.
45
78 Phil. 1 (1947).

46
Ibid at 3.
47
777
VOL. 235, AUGUST 25, 1994 777
the provisions of such Acts and of the due enactment thereof.” Without pulling the legal underpinnings from U.S. v.
Pons, it justified its position by saying that if the Court at the time looked into the journals, “in all probability, those
were the documents offered in evidence” and that “even if both the journals and authenticated copy of the Act had
been presented, the disposal of the issue by the Court on the basis of the journals does not imply rejection of the
enrolled theory; for as already stated, the due enactment of a law may be proved in either of the two ways specified
in Section 313 of Act No. 190 as amended.” Three Justices voiced their dissent from the majority decision.
48
Again, the Court made its position plain in the 1963 case of Casco Philippine Chemical Co., Inc. v.
Gimenez when a unanimous Court ruled that: “The enrolled bill is conclusive upon the courts as regards the tenor
49
of the measure passed by Congress and approved by the President.If there has been any mistake in the printing of a
bill before it was certified by the officers of Congress and approved by the Executive, the remedy is by amendment
or curative legislation not by judicial decree.” According to Webster’s New 20th Century Dictionary, 2nd ed., 1983,
the word “tenor” means, among others, “the general drift of something spoken or written; intent, purport,
substance.”
Thus, the Court upheld the respondent Auditor General’s interpretation that Republic Act No. 2609 really
exempted from the margin fee on foreign exchange transactions “urea formaldehyde” as found in the law and
not “urea and formaldehyde” which petitioner insisted were the words contained in the bill and were so intended by
Congress.
In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the enrolled bill. In
denying the motion for reconsideration, the Court ruled in Morales v. Subido that “the enrolled Act in the office of
the legislative secretary of the President of the Philippines shows that Section 10 is exactly as it is in the statute as
officially published in slip form by the Bureau of Printing. x x x Expressed elsewise, this is a matter worthy of the
attention not of an Oliver Wendell Holmes but of a
_______________
Ibid at 18.
48
117 Phil. 363 (1963).

49
778
8 ANNOTATED
Sherlock Holmes.” The alleged omission of a phrase in the final Act was made, not at any stage of the legislative
50
proceedings, but only in the course of the engrossment of the bill, more specifically in the proofreading thereof.
But the Court did include a caveat that qualified the absoluteness of the “enrolled bill” rule stating:
“By what we have essayed above we are not of course to be understood as holding that in all cases the
journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution (Art.
VI, secs. 10 [4], 20 [1], and 21 [1]) expressly requires must be entered on the journal of each house. To
what extent the validity of a legislative act may be affected by a failure to have such matters entered on
the journal, is a question which we do not now decide (Cf. e.g., Wilkes Country Comm’rs. v. Coler, 180
U.S. 506 [1900]). All we hold is that with respect to matters not expressly required to be entered on the
journal, the enrolled bill prevails in the event of any discrepancy.” 51
More recently, in the 1993 case of Philippine Judges Association v. Prado, this Court, in ruling on the
52
unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking privilege from the entire
hierarchy of courts, did not so much adhere to the enrolled bill rule alone as to both “enrolled bill and legislative
journals.” Through Mr. Justice Isagani A. Cruz, we stated: “Both the enrolled bill and the legislative journals certify
that the measure was duly enacted, i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound
by such official assurances from a coordinate department of the government, to which we owe, at the very least, a
becoming courtesy.”
Aware of the shifting sands on which the validity and continuing relevance of the “enrolled bill” theory rests, I
have taken pains to trace the history of its applicability in this jurisdiction, as influenced in varying degrees by
different Federal rulings.
As applied to the instant petition, the issue posed is whether or not the procedural irregularities that attended the
passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the
_______________
136 Phil. 405, 409 (1969).

50
Ibid at 412.
51

52
779
VOL. 235, AUGUST 25, 1994 779
reading and printing requirements which were exempted by the Presidential certification, may no longer be
impugned, having been “saved” by the conclusiveness on us of the enrolled bill. I see no cogent reason why we
cannot continue to place reliance on the enrolled bill, but only with respect to matters pertaining to the procedure
followed in the enactment of bills in Congress and their subsequent engrossment, printing errors, omission of words
and phrases and similar relatively minor matters relating more to form and factual issues which do not materially
alter the essence and substance of the law itself.
Certainly, “courts cannot claim greater ability to judge procedural legitimacy, since constitutional rules on
legislative procedure are easily mastered. Procedural disputes are over facts—whether or not the bill had enough
votes, or three readings, or whatever—not over the meaning of the constitution. Legislators, as eyewitnesses, are in a
better position than a court to rule on the facts. The argument is also made that legislatures would be offended if
courts examined legislative procedure. 53
Such a rationale, however, cannot conceivably apply to substantive changes in a bill introduced towards the end
of its tortuous trip through Congress, catching both legislators and the public unawares and altering the same beyond
recognition even by its sponsors.
This issue I wish to address forthwith.
EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE
One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and 115754, respectively, is
whether or not—
“Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it approved the
Bicameral Conference Committee Report which embodied, in violation of Rule XII of the Rules of the
Senate, a radically altered tax measure containing provisions not reported out or discussed in either House
as well as provisions on which
_______________
Davies, Jack, LEGISLATIVE LAW AND PROCESS, 2nd ed., 1986.

53
780
0 ANNOTATED
there was no disagreement between the House and the Senate and, worse, provisions contrary to what the
House and the Senate had approved after three separate readings.” 54
and
“By adding or deleting provisions, when there was no conflicting provisions between the House and
Senate versions, the BICAM acted in excess of its jurisdiction or with such grave abuse of discretion as to
amount to loss of jurisdiction. x x x In adding to the bill and thus subjecting to VAT, real properties,
media and cooperatives despite the contrary decision of both Houses, the BICAM exceeded its
jurisdiction or acted with such abuse of discretion as to amount to loss of jurisdiction ....” 55
I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that “(j)udicial power
includes the duty of the courts of justice x x x to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” We are
also guided by the principle that a court may interfere with the internal procedures of its coordinate branch only to
uphold the Constitution.56
A conference committee has been defined:

“. . . unlike the joint committee is two committees, one appointed by each house. It is normally appointed
for a specific bill and its function is to gain accord between the two houses either by the recession of one
house from its bill or its amendments or by the further amendment of the existing legislation or by the
substitution of an entirely new bill. Obviously, the conference committee is always a special committee
and normally includes the member who introduced the bill and the chairman of the committee which
considered it together with such other representatives of the houses as seem expedient. (Horack, Cases
and Materials on Legislation [1940] 220. See also Zinn, Conference Procedure in Congress, 38 ABAJ 864
[1952]; Steiner, The Congressional Conference Committee [U of Ill. Press, 1951]).” 57
________________
Petition in G.R. No. 115781, p. 18.

54
Petition in G.R. No. 115543, pp. 2-3.

55
Davies, Jack, supra at 90.

56
Sutherland, J.G., STATUTES AND STATUTORY CONSTRUCTION, Vol. I, 4th ed., pp. 293-294.
57
781
VOL. 235, AUGUST 25, 1994 781
From the foregoing definition, it is clear that a bicameral conference committee is a creature, not of the Constitution,
but of the legislative body under its power to determine rules of its proceedings under Article VI, Sec. 16 (3) of the
Constitution. Thus, it draws its life and vitality from the rules governing its creation. The why, when, how and
wherefore of its operations, in other words, the parameters within which it is to function, are to be found in Section
26, Rule XII of the Rules of the Senate and Section 85 of the Rules of the House of Representatives, respectively,
which provide:
Rule XII, Rules of the Senate
“SEC. 26. In the event that the Senate does not agree with the House of Representatives on the provision
of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses
which shall meet within ten days after their composition.
The President shall designate the members of the conference committee in accordance with
subparagraph (c), Section 8 of Rule III.
changes in or amendments to the subject measure, and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has been filed with the
Secretary of the Senate and copies thereof have been distributed to the Members.”
Rules of the House of Representatives
“SEC. 85. Conference Committee Reports.—In the event that the House does not agree with the Senate on
the amendments to any bill or joint resolution, the differences may be settled by conference committee of
both Chambers.
The consideration of conference committee reports shall always be in order, except when the journal
is being read, while the roll is being called or the House is dividing on any question. Each of the pages of
such reports shall contain a detailed, sufficiently explicit statement of the changes in or amendments to
the subject measure.
The consideration of such report shall not be in order unless copies thereof are distributed to the
Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that
three copies of the report, signed as above provided, are deposited in the office of the Secretary General.”
782
2 ANNOTATED
Under these Rules, a bicameral conference committee comes into being only when there are disagreements and
differences between the Senate and the House with regard to certain provisions of a particular legislative act which
have to be reconciled.
Jefferson’s Manual, which, according to Section 112, Rule XLIX of the Senate Rules, supplements it, states that
a conference committee is usually called “on the occasion of amendments between the Houses” and “in all cases of
difference of opinion between the two Houses on matters pending between them.” It further states:
58
“The managers of a conference must confine themselves to the differences committed to them, and may
not include subjects not within the disagreements, even though germane to a question in issue. But they
may perfect amendments committed to them if they do not in so doing go beyond the differences. x x x
Managers may not change the text to which both Houses have agreed.” (Italics supplied.)
59
Mason’s Manual of Legislative Procedures which is also considered as controlling authority for any situation not
covered by a specific legislative rule, states that either House may “request a conference with the other on any
60
matter of difference or dispute between them” and that in such a request, “the subject of the conference should
always be stated.”61
In the Philippines, as in the United States, the Conference Committee exercises such a wide range of authority
that they virtually constitute a third House in the Legislature. As admitted by the Solicitor General, “It was the
practice in past Congresses for Conference Committees to insert in bills approved by the two Houses new provisions
that were not originally contemplated by them.”62
In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the circumstances which
have conspired to
________________
Page 261.
58
Page 268.
59
Davies, supra, at 65.
60
Sec. 764, p. 541.

61
Consolidated Memorandum for Respondents, p. 71.

62
783
VOL. 235, AUGUST 25, 1994 783
transform an initially innocuous mechanism designed to facilitate legislative action into an all-powerful
Frankenstein that brooks no challenge to its authority even from its own members.
“Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matters and so the motion to
accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions
rather than prolong controversy. This is the more likely if the report comes in the rush of business toward
the end of a session, when to seek further conference might result in the loss of the measure altogether. At
any time in the session there is some risk of such a result following the rejection of a conference report,
for it may not be possible to secure a second conference, or delay may give opposition to the main
proposal chance to develop more strength.
x x x x x x x x x
Entangled in a network of rule and custom, the Representative who resents and would resist this theft
of his rights, finds himself helpless. Rarely can he vote, rarely can he voice his mind, in the matter of any
fraction of the bill. Usually he cannot even record himself as protesting against some one feature while
accepting the measure as whole. Worst of all, he cannot by argument or suggested change, try to improve
what the other branch has done.
This means more than the subversion of individual rights. It means to a degree the abandonment of
whatever advantage the bicameral system may have. By so much it in effect transfers the lawmaking
power to a small group of members who work out in private a decision that almost always prevails. What
is worse, these men are not chosen in a way to ensure the wisest choice. It has become the practice to
name as conferees the ranking members of the committee, so that the accident of seniority determines.
Exceptions are made, but in general it is not a question of who are most competent to serve. Chance
governs, sometimes giving way to favor, rarely to merit.
x x x x x x x x x
Speaking broadly, the system of legislating by conference committee is unscientific and therefore
defective. Usually it forfeits the benefit of scrutiny and judgment by all the wisdom available.
Uncontrolled, it is inferior to that process by which every amendment is secured independent discussion
and vote. x x x.” (Italics supplied)
63
________________
Pages 404-405 and 407.

63
784
4 ANNOTATED
Not surprisingly has it been said: “Conference Committee action is the most undemocratic procedure in the
legislative process; it is an appropriate target for legislative critics.”
64
In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No. 1630 and House
Bill No. 11197 were referred for the purpose of harmonizing their differences, overreached themselves in not
confining their “reconciliation” function to those areas of disagreement in the two bills but actually making
“surreptitious insertions” and deletions which amounted to a grave abuse of discretion.
At this point, it becomes imperative to focus on the errant provisions which found their way into Republic Act
No. 7716. Below is a breakdown to facilitate understanding the grounds for petitioners’ objections:
INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO
SENATE BILL (SB) NO. 1630 AND HOUSE BILL (HB) NO. 11197
1. 1.Sec. 99 of the National Internal Revenue Code (NIRC)
1. (1)Under the HB, this section includes any person who, in the course of trade or business, sells, barters or
exchanges goods OR PROPERTIES and any person who LEASES PERSONAL PROPERTIES.
2. (2)The SB completely changed the said section and defined a number of words and phrases. Also, Section
99-A was added which included one who sells, exchanges, barters PROPERTIES and one who imports
PROPERTIES.
3. (3)The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods LIABLE to
VAT (subject of petition in G.R. No. 115754).
1. 2.Section 100 (VAT on Sale of Goods)
The term “goods” or “properties” includes the following, which were not found in either the HB or the SB:
________________
Davies, supra, at 81.
64
785
VOL. 235, AUGUST 25, 1994 785
—In addition to radio and television time;
SATELLITE TRANSMISSION AND
CABLE TELEVISION TIME.
—The term “Other similar properties” was
deleted, which was present in the HB and the
SB.
—Real properties held primarily for sale to
customers or held for lease in the ordinary
course or business were included, which was
neither in the HB nor the SB (subject of
petition in G.R. No. 115754).
3. Section 102
On what are included in the term “sale or exchange of services,” as to make them subject to VAT, the BICAM
included/inserted the following (not found in either House or Senate Bills):
1. 1.Services of lessors of property, whether personal or real (subject of petition in G.R. No. 115754);
2. 2.Warehousing services;
3. 3.Keepers of resthouses, pension houses, inns, resorts;
4. 4.Common carriers by land, air and sea;
5. 5.Services of franchise grantees of telephone and telegraph;
6. 6.Radio and television broadcasting;
7. 7.All other franchise grantees except those under Section 117 of this Code (subject of petition in G.R. No.
115852);
8. 8.Services of surety, fidelity, indemnity, and bonding com-panies;
9. 9.Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the right to use of satellite
transmission and cable television time.
1. 4.Section 103 (Exempt Transactions)
The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and Senate Bills. Therefore,
under Republic Act No. 7716, the “printing, publication, importation or sale of books and any newspaper, magazine,
review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not
devoted principally to the publication of advertisements” is subject to VAT (subject of petition in G.R. No.
115931 and G.R. No. 115544).
The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the word TEN to
FIVE.
786
6 ANNOTATED
Thus, importation of vessels with tonnage of more than five thousand tons is VAT exempt.
Subsection L, which was identical in the HB and the SB that stated that medical, dental, hospital and veterinary
services were exempted from the VAT was amended by the BICAM by adding the qualifying phrase: EXCEPT
THOSE RENDERED BY PROFESSIONALS, thus subjecting doctors, dentists and veterinarians to the VAT.
Subsection U which exempts from VAT “transactions which are exempt under special laws,” was amended by
the BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972, 1491, AND 1590,
AND NON-ELECTRIC COOPERATIVES UNDER RA 6938 (subject of petition in G.R. No. 115873), not found in
either the HB or the SB, resulting in the inclusion of all cooperatives to the VAT, except non-electric cooperatives.
The sale of real properties was included in the exempt transactions under the House Bill, but the BICAM
qualified this with the provision:
“(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR
HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL
PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY RA NO.
7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992
AND OTHER RELATED LAWS.” (subject of petition in G.R. No. 115754)
The BICAM also exempted the sale of properties, the receipts of which are not less than P480,000.00 or more than
P720,000.00. Under the SB, no amount was given, but in the HB it was stated that receipts from the sale of
properties not less than P350,000.00 nor more than P600,000.00 were exempt.
It did not include, as VAT exempt, the sale or transfer of securities, as defined in the Revised Securities Act (BP
178) which was contained in both Senate and House Bills.
1. 5.Section 104
Not included in the HB or the SB is the phrase “INCLUDING PACKAGING MATERIALS” which was inserted by
the BICAM
787
VOL. 235, AUGUST 25, 1994 787
in Section 104 (A) (1) (B), thus excluding from creditable input tax packaging materials and the phrase “ON
WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY PAID” in Section 104 (A) (2).
1. 6.Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this was increased by
BICAM to P1,000.00.
1. 7.Section 112
Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM inserted the phrase:
“THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER,” although the SB and the HB provide only “three percent of his gross quarterly sales.”
1. 8.Section 115
The BICAM adopted the HB version which subjects common carriers by land, air or water for the transport of
passengers to 3% of their gross quarterly sales, which is not found in the SB.
1. 9.Section 117
The BICAM amended this section by subjecting franchises on electric, gas and water utilities to a tax of two percent
(2%) on gross receipts derived x x x, although neither the HB nor the SB has a similar provision.
1. 10.Section 17 (d)
1. (a)The BICAM defers for only 2 years the VAT on services of actors and actresses, although the SB defers
it for 3 years.
2. (b)The BICAM uses the word “EXCLUDE” in the section on deferment of VAT collection on certain
goods and services. The HB does not contain any counterpart provision and SB only allows deferment for
no longer than 3 years.
788
8 ANNOTATED
1. 11.Section 18 on the Tax Administration Development Fund is an entirely new provision not contained in
the House/Senate Bills. This fund is supposed to ensure effective implementation of Republic Act No.
7716.
2. 12.Section 19
No period within which to promulgate the implementing rules and regulations is found in the HB or the SB but
BICAM provided “within 90 days” which found its way in Republic Act No. 7716.
Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral Conference
Committee (henceforth to be referred to as BICAM) exceeded the power and authority granted in the Rules of its
creation. Both Senate and House Rules limit the task of the Conference Committee in almost identical language to
the settlement of differences in the provisions or amendments to any bill or joint resolution. If it means anything at
all, it is that there are provisions in subject bill, to start with, which differ and, therefore, need reconciliation.
Nowhere in the Rules is it authorized to initiate or propose completely new matter. Although under certain rules on
legislative procedure, like those in Jefferson’s Manual, a conference committee may introduce germane matters in a
particular bill, such matters should be circumscribed by the committee’s sole authority and function to reconcile
differences.
Parenthetically, in the Senate and in the House, a matter is “germane” to a particular bill if there is a common tie
between said matter and the provisions which tend to promote the object and purpose of the bill it seeks to amend. If
it introduces a new subject matter not within the purview of the bill, then it is not “germane” to the bill. The test is
65
whether or not the change represented an amendment or extension of the basic purpose of the original, or the
introduction of an entirely new and different subject matter. 66
________________
See: 18 Words and Phrases 482 citing Kennedy v. Truss, Del. Super., 13 A. 2nd 431, 435, 1 Terry 424 (1940).
65
United States Gypsum Co. v. State, Dept. of Revenue, 110 N.W. 2d 698, 71, 363, Mich. 548 (1961).
66
789
VOL. 235, AUGUST 25, 1994 789
In the BICAM, however, the germane subject matter must be within the ambit of the disagreement between the two
Houses. If the “germane” subject is not covered by the disagreement but it is reflected in the final version of the bill
as reported by the Conference Committee or, if what appears to be a “germane” matter in the sense that it is
“relevant or closely allied” with the purpose of the bill, was not the subject of a disagreement between the Senate
67
and the House, it should be deemed an extraneous matter or even a “rider” which should never be considered legally
passed for not having undergone the three-day reading requirement. Insertion of new matter on the part of the
BICAM is, therefore, an ultra vires act which makes the same void.
The determination of what is “germane” and what is not may appear to be a difficult task but the Congress,
having been confronted with the problem before, resolved it in accordance with the rules. In that case, the Congress
approved a Conference Committee’s insertion of new provisions that were not contemplated in any of the provisions
in question between the Houses simply because of the provision in Jefferson’s Manual that conferees may report
matters “which are germane modifications of subjects in disagreement between the Houses and the committee. In 68
other words, the matter was germane to the points of disagreement between the House and the Senate.
As regards inserted amendments in the BICAM, therefore, the task of determining what is germane to a bill is
simplified, thus: If the amendments are not circumscribed by the subjects of disagreement between the two Houses,
then they are not germane to the purpose of the bill.
In the instant case before us, the insertions and deletions made do not merely spell an effort at settling
conflicting provisions but have materially altered the bill, thus giving rise to the instant petitions on the part of those
who were caught unawares by the legislative legerdemain that took place. Going by the definition of the word
“amendment” in Black’s Law Dictionary,
_________________
BLACK’s DICTIONARY, 6th ed., p. 687 citing State ex. rel. Riley v. District Court of Second Judicial Dist. in and
67
for Silver Bow County, 103 Mont. 576, 64 P. 2d 115, 119 (1937).
CONGRESSIONAL RECORD, May 3, 1952, p. 885 cited in Orquiola, Annotated Rules of the Senate, 1991 ed., pp.
68
40-41.
790
0 ANNOTATED
5th Ed., 1979, which means “to change or modify for the better; to alter by modification, deletion, or addition,” said
insertions and deletions constitute amendments. Consequently, these violated Article VI, Section 26 (2) which
provides inter alia: “Upon the last reading of a bill, no amendment thereto shall be allowed . . .” This proscription is
intended to subject all bills and their amendments to intensive deliberation by the legislators and the ample
ventilation of issues to afford the public an opportunity to express their opinions or objections issues to afford the
public an opportunity to express their opinions or objections thereon. The same rationale underlies the three-reading
requirement to the end that no surpises may be sprung on an unsuspecting citizenry.
Provisions of the “now you see it, now you don’t” variety, meaning those which were either in the House and/or
Senate versions but simply disappeared or were “bracketed out” of existence in the BICAM Report, were eventually
incorporated in Republic Act No. 7716. Worse, some goods, properties or services which were not covered by the
two versions and, therefore, were never intended to be so covered, suddenly found their way into the same Report.
No advance notice of such insertions prepared the rest of the legislators, much less the public who could be
adversely affected, so that they could be given the opportunity to express their views thereon. Well has the final
BICAM report been described, therefore, as an instance of “taxation without representation.”
That the conferees or delegates in the BICAM representing the two Chambers could not possibly be charged
with bad faith or sinister motives or, at the very least, unseemly behavior, is of no moment. The stark fact is that
items not previously subjected to the VAT now fell under its coverage without interested sectors or parties having
been afforded the opportunity to be heard thereon. This is not to say that the Conference Committee Report should
have undergone the three readings required in Article VI, Section 26(2), for this clearly refers only to bills which,
after having been initially filed in either House, negotiated the labyrinthine passage therein until its approval. The
composition of the BICAM including as it usually does, the Chairman of the appropriate Committee, the sponsor of
the bill and other interested members ensures an informed discussion, at least with respect to the disagreeing
provisions. The same does not obtain as regards completely new
791
VOL. 235, AUGUST 25, 1994 791
matter which suddenly spring on the legislative horizon.
It has been pointed out that such extraneous matters notwithstanding, all Congressmen and Senators were given
the opportunity to approve or turn down the Committee Report in toto, thus “curing” whatever defect or irregularity
it bore. Earlier in this opinion, I explained that the source of the acknowledged power of this ad hoc committee
stems from the precise fact that, the meetings, being scheduled “take it or leave it” basis. It has not been uncommon
for legislators who, for one reason or another have been frustrated in their attempt to pass a pet bill in their own
chamber, to work for its passage in the BICAM where it may enjoy a more hospitable reception and faster approval.
In the instant case, had there been full, open and unfettered discussion on the bills during the Committee sessions,
there would not have been as much vociferous objections on this score. Unfortunately, however, the Committee held
two of the five sessions behind closed doors, sans stenographers, record-takers and interested observers. To that
extent, the proceedings were shrouded in mystery and the public’s right to information on matters of public concern
as enshrined in Article III, Section 7 and the government’s policy of transparency in transactions involving public
69
interest in Article II, Section 28 of the Constitution are undermined.

70
Moreover, that which is void ab initio such as the objectionable provisions in the Conference Committee Report,
cannot be “cured” or ratified. For all intents and purposes, these never existed. Quae ab initio non valent, ex post
facto convalescere non possunt. Things that are invalid from the beginning are not made valid by a subsequent act.
________________
Article III, Section 7. “The right of the people to information on matters of public concern shall be recognized.
69
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.”
Article II, Section 28. “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
70
of full public disclosure of all its transactions involving public interest.”

792
2 ANNOTATED
Should this argument be unacceptable, the “enrolled bill” doctrine, in turn, is invoked to support the proposition that
the certification by the presiding officers of Congress, together with the signature of the President, bars further
judicial inquiry into the validity of the law. I reiterate my submission that the “enrolled bill ruling” may be
applicable but only with respect to questions pertaining to the procedural enactment, engrossment, printing, the
insertion or deletion of a word or phrase here and there, but would draw a dividing line with respect to substantial
substantive changes, such as those introduced by the BICAM herein.
We have before us then the spectacle of a body created by the two Houses of Congress for the very limited
purpose of settling disagreements in provisions between bills emanating therefrom, exercising the plenary legislative
powers of the parent chambers but holding itself exempt from the mandatory constitutional requirements that are the
hallmarks of legislation under the aegis of a democratic political system. From the initial filing, through the three
readings which entail detailed debates and discussions in Committee and plenary sessions, and on to the transmittal
to the other House in a repetition of the entire process to ensure exhaustive deliberations—all these have been
skipped over. In the proverbial twinkling of an eye, provisions that probably may not have seen the light of day had
they but run their full course through the legislative mill, sprang into existence and emerged full-blown laws.
Yet our Constitution vests the legislative power in “the Congress of the Philippines which shall consist of a
Senate and a House of Representatives . . . .” and not in any special, standing or super committee of its own
71
creation, no matter that these have been described, accurately enough, as “the eye, the ear, the hand, and very often
the brain of the house.”
Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does not warrant its
being legitimized and perpetuated any longer. Consuetudo, contra rationem introducta, potius usurpatio quam
consuetudo appellari debet. A custom against reason is rather an usurpation. In the hierarchy
_______________
Article VI, Section 1.

71
793
VOL. 235, AUGUST 25, 1994 793
of sources of legislative procedure, constitutional rules, statutory provisions and adopted rules (as for example, the
Senate and House Rules), rank highest, certainly much ahead of customs and usages.
Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous about exercising
its power or more importantly, performing its duty, of making a judicial determination on the issue of whether there
has been grave abuse of discretion by the other branches or instrumentalities of government, where the same is
properly invoked? The time is past when the Court was not loathe to raise the bogeyman of the political question to
avert a head-on collision with either the Executive or Legislative Departments. Even the separation of powers
doctrine was burnished to a bright sheen as often as it was invoked to keep the judiciary within bounds. No longer
does this condition obtain. Article VIII, Section 2 of the Constitution partly quoted in this paragraph has broadened
the scope of judicial inquiry. This Court can now safely fulfill its mandate of delimiting the powers of co-equal
departments like the Congress, its officers or its committees which may have no compunctions about exercising
legislative powers in full.
Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its progenitor’s
legislative powers in derogation of the rights of the people, in the process, subverting the democratic principles we
all are sworn to uphold, when a proper case is made out for our intervention? The answers to the above queries are
self-evident.
I call to mind this exhortation: “We are sworn to see that violations of the constitution—by any person,
corporation, state agency or branch of government—are brought to light and corrected. To countenance an artificial
rule of law that silences our voices when confronted with violations of our Constitution is not acceptable to this
Court.” 72
I am not unaware that a rather recent decision of ours brushed aside an argument that a provision in subject law
regarding the withdrawal of the franking privilege from the petitioners and this Court itself, not having been
included in the original version
_______________
D & W Auto Supply v. Department of Revenue, supra.

72
794
4 ANNOTATED
of Senate Bill No. 720 or of House Bill No. 4200 but only in the Conference Committee Report, was violative of
Article VI, Section 26 (2) of the Constitution. Likewise, that said Section 35, never having been a subject of
disagreement between both Houses, could not have been validly added as an amendment before the Conference
Committee.
The majority opinion in said case explained:
“While it is true that a conference committee is the mechanism for compromising differences between the
Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:
‘A conference committee may deal generally with the subject matter or it may be limited to resolving the
precise differences between the two houses. Even where the conference committee is not by rule limited
in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be
inserted into the conference bill. But occasionally a conference committee produces unexpected results,
results beyond its mandate. These excursions occur even where the rules impose strict limitations on
conference committee jurisdiction. This is symptomatic of the authoritarian power of conference
committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p. 81).’ ” (Italics supplied)
73
At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is: “Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with
which new subject matter can be inserted into the conference bill.” What follows, that is, “occasionally a conference
committee produces unexpected results, results beyond its mandate . . .” is the exception. Then it concludes with a
declaration that: “This is symptomatic of the authoritarian power of conference committee.” Are we about to
reinstall another institution that smacks of authoritarianism which, after our past experience, has become anathema
to the Filipino people?
The ruling above can hardly be cited in support of the proposition that a provision in a BICAM report which was
not
________________
The Philippine Judges Association v. Hon. Pete Prado, G.R. No. 105371, November 11, 1993, 227 SCRA 703, 709.
73
795
VOL. 235, AUGUST 25, 1994 795
the subject of differences between the House and Senate versions of a bill cannot be nullified. It submits that such is
not authorized in our Basic Law. Moreover, this decision concerns merely one provision whereas the BICAM
Report that culminated in the EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law
by imposing the tax on several items which were not so covered prior to the EVAT.
One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily drawn up, it often
fails to conform to the Senate and House Rules requiring no less than a “detailed” and “sufficiently explicit
statement of the changes in or amendments to the subject measure.” The Report of the committee, as may be gleaned
from the preceding pages, was no more than the final version of the bill as “passed” by the BICAM. The
amendments or subjects of dissension, as well as the reconciliation made by the committee, are not even pointed out,
much less explained therein.
It may be argued that legislative rules of procedure may properly be suspended, modified, revoked or waived at
will by the legislators themselves. This principle, however, does not come into play in interpreting what the record
74
of the proceedings shows was, or was not, done. It is rather designed to test the validity of legislative action where
the record shows a final action in violation or disregard of legislative rules. Utilizing the Senate and the House
75
Rules as both guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the Report
should contain.
Given all these irregularities that have apparently been engrafted into the BICAM system, and which have been
tolerated, if not accorded outright acceptance by everyone involved in or conversant with, the institution, it may be
asked: Why not leave well enough alone?
_________________
In Osmeña, Jr. v. Pendatun, (109 Phil. 863 [1960]), the Court held that parliamentary rules are merely procedural and
74
they may be waived or disregarded by the legislative body. Hence, mere failure to conform to parliamentary usage will not
invalidate the action taken by a deliberative body when the requisite number of members have agreed to a particular
measure.
State v. Essling, 128 N.W. 2d 307, 316 (1964).
75
796
6 ANNOTATED
That these practices have remained unchallenged in the past does not justify our closing our eyes and turning a deaf
ear to them. Writ large is the spectacle of a mechanism ensconced in the very heart of the people’s legislative halls,
that now stands indicted with the charge of arrogating legislative powers unto itself through the use of dubious
“shortcuts.” Here, for the people to judge, is the “mother of all shortcuts.”
In the petitions at bench, we are confronted with the enactment of a tax law which was designed to broaden the
tax base. It is rote learning for any law student that as an attribute of sovereignty, the power to tax is “the strongest
of all the powers of government.” Admittedly, “for all its plenitude, the power to tax is not unconfined. There are
76
restrictions.” Were there none, then the oft-quoted 1803 dictum of Chief Justice Marshall that “the power to tax
77
involves the power to destroy” would be a truism. Happily, we can concur with, and the people can find comfort in,
78
the reassuring words of Mr. Justice Holmes: “The power to tax is not the power to destroy while this Court sits.” 79
Manakanakâ, mayroóng dumudulóg dito sa Kátaastaasang Hukuman na may kamangha-mangháng hinaíng.

Angkóp na halimbawà ay ang mga petisyóng iniharáp ngayón sa amin.
Ang ilán sa kanilá ay mga Senadór na nais mapawaláng bisà ang isáng batás ukol sa buwís na ipinasá mismo
nilá. Diumanó itó ay hindî tumalima sa mga itinatadhana ng Sáligang Batás. Bukód sa rito, tutol silá sa mga bagong
talatà na isiningit ng “Bicameral Conference Committee” na nagdagdág ng mga bagong bagay bagay at serbisyo na
papatawan ng buwís. Ayon sa kanilá, ginampanán ng komiténg iyán ang gawain na nauukol sa buóng Kongreso.
Kung kayá’t ang nararapat na mangyari ay ihatol ng Kátaastaasang Hukuman na malabis na pagsasamantala sa
sariling pagpapasiyá ang ginawâ ng Kongreso.
Bagamá’t bantulót kamíng makialám sa isáng kapantáy na sangáy ng Pamahalaán, hindî naman nararapat na
kamí ay
________________
Sarasola v. Trinidad, 40 Phil. 252, 262 (1919).

76
Sison, Jr. v. Ancheta, L-59431, July 25, 1984, 130 SCRA 654, 660.
77
McCullock v. Maryland, 4 Wheaton 316.

78
Quoted in Graves. v. New York, 306 U.S. 466, 490.

79
797
VOL. 235, AUGUST 25, 1994 797
tumanggíng gampanán ang tungkulin na iniatas sa amin ng Saligang Batas. Lalu’t-lalò nang ang batás na
kinauukulan ay maaaring makapinsalá sa nakararami sa sambayanán.
Sa ganang akin, itong batas na inihaharap sa amin ngayón, ay totoóng labág sa Saligang Batás, samakatuwíd ay
waláng bisà. Nguni’t itó ay nauukol lamang sa mga katiwalián na may kinalaman sa paraán ng pagpapasabatás nitó.
Hindî namin patakarán ang makialám o humadláng sa itinakdáng gawain ng Saligang Batás sa Pangulò at sa
Kongreso. Ang dalawáng sangáy na iyán ng Pamahalaán ang higít na maalam ukol sa kung ang anumáng
panukalang batás ay nararapat, kanais-nais o magagampanán; kung kayá’t hindî kamí nararapat na maghatol o
magpapasiyá sa mga bagay na iyán. Ang makapapataw ng angkop na lunas sa larangan na iyán ay ang mismong
mga kinatawán ng sambayanán sa Kongreso.
Faced with this challenge of protecting the rights of the people by striking down a law that I submit is
unconstitutional and in the process, checking the wonted excesses of the Bicameral Conference Committee system, I
see in this case a suitable vehicle to discharge the Court’s Constitutional mandate and duty of declaring that there
has indeed been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Legislature.
Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the substantive issues as
dealt with in the majority opinion as they have been rendered moot and academic. These issues pertain to the
intrinsic merits of the law. It is axiomatic that the wisdom, desirability and advisability of enacting certain laws lie,
not within the province of the Judiciary but that of the political departments, the Executive and the Legislative. The
relief sought by petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the people is
within their reach. For Congress, of which Senator-petitioners are a part, can furnish the solution by either repealing
or amending the subject law.
For the foregoing reasons, I VOTE to GRANT the petition.
798
8 ANNOTATED
DISSENTING OPINION
BELLOSILLO, J.:
With a consensus already reached after due deliberations, silence perhaps should be the better part of discretion,
except to vote. The different views and opinions expressed are so persuasive and convincing; they are more than
enough to sway the pendulum for or against the subject petitions. The penetrating and scholarly dissertations of my
brethren should dispense with further arguments which may only confound and confuse even the most learned of
men.
But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated lightly, if not almost
considered insignificant and purposeless. It is elementary, as much as it is fundamental. I am referring to the word
“exclusively” appearing in Sec. 24, Art. VI, of our 1987 Constitution. This is regrettable, to say the least, as it
involves a constitutional mandate which, wittingly or unwittingly, has been cast aside as trivial and meaningless.
A comparison of the particular provision on the enactment of revenue bills in the U.S. Constitution with its
counterpart in the Philippine Constitution will help explain my position.
Under the U.S. Constitution, “[a]ll bills for raising revenue shall originate in the House of Representatives; but
the Senate may propose or concur with amendments as on other bills” (Sec. 7, par. [1], Art. I). In contrast, our 1987
Constitution reads: “All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may
propose or concur with amendments” (Sec. 24, Art. VI; italics supplied).
As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required to originate
“exclusively” in the House of Representatives. On the other hand, the U.S. Constitution does not use the word
“exclusively”; it merely says, “[a]ll bills for raising revenue shall originate in the House of
799
VOL. 235, AUGUST 25, 1994 799
Representatives.”
Since the term “exclusively” has already been adequately defined in the various opinions, as to which there
seems to be no dispute, I shall no longer offer my own definition.
Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively from the
Lower House is mandatory. The word “exclusively” is an “exclusive word,” which is indicative of an intent that the
provision is mandatory. Hence, all American authorities expounding on the meaning and application of Sec. 7, par.
1
(1), Art. I, of the U.S. Constitution cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution
which has a distinct feature of “exclusiveness” all its own. Thus, when our Constitution absolutely requires—as it is
mandatory—that a particular bill should exclusively emanate from the Lower House, there is no alternative to the
requirement that the bill to become valid law must originate exclusively from that House.
In the interpretation of constitutions, questions frequently arise as to whether particular sections are mandatory
or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the
tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general
rule to regard constitutional provisions as mandatory, and not to leave any discretion to the will of the legislature to
obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. So strong is the inclination in favor of giving
obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other
department of the government may any provision of the Constitution be regarded as merely directory, but that each
and everyone of its provisions should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes. 2
The framers of our 1987 Constitution could not have used the term “exclusively” if they only meant to replicate
and adopt in
_______________
See McGee v. Republic, 94 Phil. 821 (1954).

1
See Tañada v. Cuenco , 103 Phil. 1051 (1957).

2
800
0 ANNOTATED
toto the U.S. version. By inserting “exclusively” in Sec. 24, Art. VI of our Constitution, their message is clear: they
wanted it different, strong, stringent. There must be a compelling reason for the inclusion of the word “exclusively,”
which cannot be an act of retrogression but progression, an improvement on its precursor. Thus,”exclusively” must
be given its true meaning, its purpose observed and virtue recognized, for it could not have been conceived to be of
minor consequence. That construction is to be sought which gives effect to the whole of the statute—its every
word. Ut magis valeat quam pereat.
Consequently, any reference to American authorities, decisions and opinions, however wisely and delicately put,
can only mislead in the interpretation of our own Constitution. To refer to them in defending the constitutionality of
R.A. 7716, subject of the present petitions, is to argue on a false premise, i.e., that Sec. 24, Art. VI of our 1987
Constitution is, or means exactly, the same as Sec. 7, par. (1), Art. I of the U.S. Constitution, which is not correct.
Hence, only a wrong conclusion can be drawn from a wrong premise.
For example, it is argued that in the United States, from where our own legislature is patterned, the Senate can
practically substitute its own tax measure for that of the Lower House. Thus, according to the Majority, citing an
American case, “the validity of Sec. 37 which the Senate had inserted in the Tariff Act of 1909 by imposing an ad
valorem tax based on the weight of vessels, was upheld against the claim that the revenue bill originated in the
Senate in contravention of Art. I, Sec. 7, of the U.S. Constitution.” In an effort to be more convincing, the Majority
3
even quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which reads—
Thus in 1883 the upper house struck out everything after the enacting clause of a tariff bill and wrote its
own measure, which the House eventually felt obliged to accept. It likewise added 847 amendments to the
Payne-Aldrich tariff act of 1909, dictated the schedules of the emergency tariff act of 1921, rewrote an
extensive tax revision bill in the same year, and recast most of the permanent tariff
________________
See Majority Opinion, p. 15, citing Rainey v. United States, 232 U.S., 309, 58 Law Ed. 617.
3
801
VOL. 235, AUGUST 25, 1994 801
bill of 1922 —4
which in fact suggests, very clearly, that the subject revenue bill actually originated from the Lower House and was
only amended, perhaps considerably, by the Senate after it was passed by the former and transmitted to the latter.
In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue bills did not actually
originate from the Senate but, in fact, from the Lower House. Thus, the Supreme Court of the United States,
speaking through Chief Justice White in Rainey v. United States upheld the revenue bill passed by Congress and
5
adopted the ruling of the lower court that—

x x x the section in question is not void as a bill for raising revenue originating in the Senate and not in
the House of Representatives. It appears that the section was proposed by the Senate as an amendment to
a bill for raising revenue which originated in the House. That is sufficient.
Flint v. Stone Tracy Co., on which the Solicitor General heavily leans in his Consolidated Comment as well as in his
6
Memorandum, does not support the thesis of the Majority since the subject bill therein actually originated from the
Lower House and not from the Senate, and the amendment merely covered a certain provision in the House bill.
In fine, in the cases cited which were lifted from American authorities, it appears that the revenue bills in
question actually originated from the House of Representatives and were amended by the Senate only after they
were transmitted to it. Perhaps, if the factual circumstances in those cases were exactly the same as the ones at
bench, then the subject revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial
compliance, as they were in the United States, except possibly in instances where the House bill undergoes what is
now referred to as “amendment by substitution,” for that would be in derogation
_______________
Id., citing F.A. Ogg and P.O. Ray, Introduction to American Government, 302, n. 2 (1945).

4
See Note 3.
5
22 U.S. 107.

6
802
2 ANNOTATED
of our Constitution which vests solely in the House of Representatives the power to initiate revenue bills. A Senate
amendment by substitution simply means that the bill in question did not in effect originate from the lower chamber
but from the upper chamber and now disguises itself as a mere amendment of the House version.
It is also theorized that in the U.S., amendment by substitution is recognized. That may be true. But the process
may be validly effective only under the U.S. Constitution. The cases before us present a totally different factual
backdrop. Several months before the Lower House could even pass HB No. 11197, P.S. Res. No. 734 and SB No.
1129 had already been filed in the Senate. Worse, the Senate subsequently approved SB No. 1630 “in substitution of
SB No. 1129, taking into consideration P.S. Res. No. 734 and HB No. 11197,” and not HB No. 11197 itself “as
amended.” Here, the Senate could not have proposed or concurred with amendments because there was nothing to
concur with or amend except its own bill. It must be stressed that the process of concurring or amending
presupposes that there exists a bill upon which concurrence may be based or amendments introduced. The Senate
should have reported out HB No. 11197, as amended, even if in the amendment it took into consideration SB No.
1630. It should not have submitted to the Bicameral Conference Committee SB No. 1630 which, admittedly, did not
originate exclusively from the Lower House.
But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended by substitution by
the Senate—although I am not prepared to accept it in view of Sec. 24, Art. VI, of our Constitution—still R.A. 7716
could not have been the result of amendment by substitution since the Senate had no House bill to speak of that it
could amend when the Senate started deliberating on its own version.
Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for the exclusive
power and prerogative of the House of Representatives may just be discarded and ignored by the Senate. Since the
Constitution is for the observance of all—the judiciary as well as the other departments of government—and the
judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands. And it
is not fair and just to impute to them undue interference if
803
VOL. 235, AUGUST 25, 1994 803
they look into the validity of legislative enactments to determine whether the fundamental law has been faithfully
observed in the process. It is their duty to give effect to the existing Constitution and to obey all constitutional
provisions irrespective of their opinion as to the wisdom of such provisions.
The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be
performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is
directly drawn into question. When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shirk from it without
violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state
is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the fundamental
law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the
destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the
courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political
agencies in disregard of the judgment of the judicial tribunals. 7
It is my submission that the power and authority to originate revenue bills under our Constitution is
vested exclusively in the House of Representatives. Its members being more numerous than those of the Senate,
elected more frequently, and more directly represent the people, are therefore considered better aware of the
economic life of their individual constituencies. It is just proper that revenue bills originate exclusively from them.
In this regard, we do not have to devote much time delving into American decisions and opinions and invoke
them in the interpretation of our own Constitution which is different from the American version, particularly on the
enactment of revenue bills. We have our own Constitution couched in a language our own legislators thought best.
Insofar as revenue bills are concerned, our Constitution is not American; it is distinctively
_______________
11 Am. Jur., pp. 712-13, 713-715.

7
804
4 ANNOTATED
Filipino. And no amplitude of legerdemain can detract from our constitutional requirement that all appropriation,
revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall
originate exclusively in the House of Representatives, although the Senate may propose or concur with amendments.
In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as
unconstitutional.
DISSENTING OPINION
PUNO, J.:
Petitioners plead that we affirm the self-evident proposition that they who make law should not break the law. There
are many evils whose elimination can be trusted to time. The evil of lawlessness in lawmaking cannot. It must be
slain on sight for it subverts the sovereignty of the people.
First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives passed on third reading
House Bill (H.B.) No. 11197 entitled “An Act Restructuring the Value Added Tax (VAT) System to Widen its Tax
Base and Enhance its Administration, Amending for These Purposes Sections 99, 100, 102 to 108 and 110 of Title V
and 236, 237 and 238 of Title IX, and Repealing Sections 113 and 114 of Title V, all of the National Internal
Revenue Code as Amended.” The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B. No.
11197 was transmitted to the Senate for its concurrence by the Hon. Camilo L. Sabio, Secretary General of the
House of Representatives.
On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.) No. 1630,
recommending its approval “in substitution of Senate Bill No. 1129 taking into consideration P.S. Res. No. 734 and
House Bill No. 11197.” On March 24, 1994, S.B. No. 1630 was approved on second and third readings. On the same
day, the Senate, thru Secretary Edgardo E. Tumangan, requested the House for a conference “in view of the
disagreeing provisions of S.B. No. 1630 and H.B. No. 11197.” It designated the following as members of its
Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H. Osmeña, Ernesto M.
Maceda, Blas F. Ople, Francisco S.
805
VOL. 235, AUGUST 25, 1994 805
Tatad, Rodolfo G. Biazon, and Wigberto S. Tañada. On the part of the House, the members of the Committee were:
Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P. Fuentebella, Mariano M. Tajon,
Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5) meetings, 1 the Bicameral Conference
Committee submitted its Report to the Senate and the House stating:
“CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V,
ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
and Senate Bill No. 1630 entitled:
99, 100, 102, 103, 104, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V,
AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114, 116, 119 AND 120
OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR
OTHER PURPOSES
having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the conferees.
Approved.”
_______________
April 13, 19, 20, 21, and 25, 1994.

1
806
6 ANNOTATED
The Report was approved by the House on April 27, 1994. The Senate approved it on May 2, 1994. On May 5,
1994, the President signed the bill into law as R.A. No. 7716.
There is no question that the Bicameral Conference Committee did more than reconcile differences between
House Bill No. 11197 and Senate Bill No. 1630. In several instances, it either added new provisions or deleted
provisions already approved in House Bill No. 11197 and Senate Bill No. 1630. These insertions/dele-tions
numbering twenty four (24) are specified in detail by petitioner Tolentino as follows:
2
“SOME SALIENT POINTS ON THE (AMENDMENTS TO THE VAT LAW [EO 273]) SHOWING
ADDITIONS/INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE TO SB 1630 &
HB 11197
I On Sec. 99 of the NIRC
H.B. 11197 amends this section by including, as liable to VAT, any person who in the course of trade
of business, sells, barters, or exchanges goods or PROPERTIES and any person who LEASES
PERSONAL PROPERTIES.
Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99—DEFINITION OF TERMS—
where eleven (11) terms were defined. A new Section, Section 99-A was incorporated which included as
subject to VAT, one who sells, exchanges, barters PROPERTIES and one who imports PROPERTIES.
The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and importers of goods
LIABLE to VAT.
II On Section 100 (VAT on sale of goods)
A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as subject to VAT.
The term GOODS or PROPERTIES includes the following:
HB (pls. refer to Sec. 2) SB (pls. BCC (RA
refer to Sec. 7716 (Sec.
1(4) 2)
1. Right or the privilege 1. The same 1. The
to use patent, copyright, same
de
________________
2
See also Annex “A,” Memorandum of Petitioner Kilosbayan in G.R. No. 115781; also the Petition in G.R. No.
115543, pp. 2-3.
807
VOL. 235, AUGUST 25, 1994 807
sign, or model,
plan, secret
formula or
process,
goodwill
trademark,
tradebrand or
other like
property or
right.
2. Right or the 2. 2. The same
privilege to use The
in the same
Philippines of
any industrial,
commercial, or
scientific
equipment.
3. Right or the 3. 3. The same
privilege to use The
motion picture same
films, films,
tapes and discs.
4. Radio and 4. 4. In addition to radio
Television time The and television time the
Same following were
included:
SATELLITE
TRANSMISSION and
CABLE
TELEVISION TIME
5. Other 5. 5. ‘Other similar
Similar The properties’ was
properties Same deleted
6.— 6.— 6. Real properties held
primarily for sale to
customers or held for
lease in the ordinary
course or business
1. B.The HB and the BCC Bills has each a provision which includes THE SALE OF GOLD TO
BANGKO SENTRAL NG PILIPINAS as falling under the term Export Sales, hence subject to
0% VAT. The Senate Bill does not contain such provision (See Section 102-A thereof).
III. On Section 102
This section was amended to include as subject to a 10% VAT the gross receipts derived from THE
SALE OR EXCHANGE OF SERVICES, INCLUDING THE USE OR LEASE OF PROPERTIES.
The SB, HB, and BCC have the same provisions on this.
However, on what are included in the term SALE OR EXCHANGE OF SERVICES, the BCC
included/inserted the following (not found in either the House or Senate Bills):
1. 1.Services of lessors of property WHETHER PERSONAL OR REAL; (See BCC Report/Bill p.

7)
2. 2.WAREHOUSING SERVICES (Ibid.,)
808
8 ANNOTATED
1. 3.Keepers of RESTHOUSES, PENSION HOUSES, INNS, RESORTS (Ibid.,)

2. 4.Common carriers by LAND, AIR AND SEA (Ibid.,)
3. 5.SERVICES OF FRANCHISE GRANTEES OF TELEPHONE AND TELEGRAPH;
4. 6.RADIO AND TELEVISION BROADCASTING
5. 7.ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE UNDER SECTION 117 OF THIS
CODE
6. 8.SERVICES OF SURETY, FIDELITY, INDEMNITY, AND BONDING COMPANIES.
7. 9.Also inserted by the BCC (on page B thereof) is the LEASE OR USE OF OR THE RIGHT TO
USE OF SATTELITE TRANSMISSION AND CABLE TELEVISION TIME
IV. On Section 103 (Exempt Transactions)
The BCC deleted subsection (f) in its entirety, despite its retention in both the House and Senate Bills,
thus under RA 7716, the ‘printing, publication, importation or sale of books and any newspaper,
magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale
and which is not devoted principally to the publication of advertisements’ is subject to VAT.
Subsection (g) was amended by the BCC (both Senate and House Bills did not) by changing the word
TEN to FIVE, thus: “Importation of passenger and/or cargo vessel of more than five thousand ton to
ocean going, including engine and spare parts of said vessel to be used by the importer himself as
operator thereof.” In short, importation of vessels with tonnage of more than 5 thousand is VAT exempt.
Subsection L, was amended by the BCC by adding the qualifying phrase: EXCEPT THOSE
RENDERED BY PROFESSIONALS.
Subsection U which exempts from VAT “Transactions which are exempt under special laws,” was
amended by BCC by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972,
1491, and 1590, and NON-ELECTRIC COOPERATIVES under RA 6938. This is the reason why
cooperatives are now subject to VAT.
While the SALE OF REAL PROPERTIES was included in the exempt transactions under the House
Bill, the BCC made a qualification by stating:
‘(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR HELD FOR
LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL PROPERTY UTILIZED FOR
LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY R.A. NO. 7279 OTHERWISE KNOWN AS THE
URBAN DEVELOPMENT AND
809
VOL. 235, AUGUST 25, 1994 809
HOUSING ACT OF 1992 AND OTHER RELATED LAWS.
Under the Senate Bill, the sale of real property utilized for low-cost and socialized housing as defined by RA 7279,
is one of the exempt transactions.
Under the House Bill, also exempt from VAT, is the SALE OF PROPERTIES OTHER THAN THE
TRANSACTIONS MENTIONED IN THE FOREGOING PARAGRAPHS WITH A GROSS ANNUAL SALES
AND/OR RECEIPTS OF WHICH DOES NOT EXCEED THE AMOUNT PRESCRIBED IN THE
REGULATIONS TO BE PROMULGATED BY THE SECRETARY OF FINANCE WHICH SHALL NOT BE
LESS THAN P350,000.00 OR HIGHER THAN P600,000.00 x x x Under the Senate Bill, the amount is
P240,000.00. The BCC agreed at the amount of not less than P480,000.00 or more than P720,000.00 SUBJECT TO
TAX UNDER SEC. 112 OF THIS CODE.
The BCC did not include, as VAT exempt, the sale or transfer of securities as defined in the Revised Securities
Act (BP 178) which was contained in both Senate and House Bills.
V On Section 104

The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on Section 104 (A)
(1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY on Section 104
(A) (2). These phrases are not contained in either House and Senate Bills.
VI On Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee. The BCC
provides for P1,000.00 VAT fee.
VII On Section 112
While both the Senate and House Bills provide that a person whose sales or receipts and are exempt
under Section 103[w] of the Code, and who are not VAT registered shall pay a tax equivalent to THREE
(3) PERCENT of his gross quarterly sales or receipts, the BCC inserted the phrase: THREE PERCENT
UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER.
810
0 ANNOTATED
VIII On Section 115
Sec. 17 of SB 1630, Sec. 12 of House Bill 11197 amends this Section by clarifying that common carriers
by land, air or water FOR THE TRANSPORT OF PASSENGERS are subject to Percentage Tax
equivalent to 3% of their quarterly gross sales.
The BCC adopted this and the House Bill’s provision that the GROSS RECEIPTS OF COMMON
CARRIERS DERIVED FROM THEIR INCOMING AND OUTGOING FREIGHT SHALL NOT BE
SUBJECTED TO THE LOCAL TAXES IMPOSED UNDER RA 7160. The Senate Bill has no similar
provision.
IX On Section 117
This Section has not been touched by either Senate and House Bills. But the BCC amended it by
subjecting franchises on ELECTRIC, GAS and WATER UTILITIES A TAX OF TWO PERCENT (2%)
ON GROSS RECEIPTS DERIVED x x x.
X On Section 121
The BCC adopted the Senate Bills’ amendment to this section by subjecting to 5% premium tax
on life insurance business. The House Bill does not contain this provision.
XI Others
1. A)The House Bill does not contain any provision on the deferment of VAT collection on Certain
Goods and Services as does the Senate Bill (Section 19, SB 1630). But although the Senate Bill
authorizes the deferment on certain goods and services for no longer than 3 years, there is no
specific provision that authorizes the President to EXCLUDE from VAT any of these. The BCC
uses the word EXCLUDE.
2. B)Moreover, the Senate Bill defers the VAT on services of actors and actresses etc. for 3 years
but the BCC defers it for only 2 years.
3. C)Section 18 of the BCC Bill (RA 7716) is an entirely new provision not contained in the
House/Senate Bills.
4. D)The period within which to promulgate the implementing rules and regulations is within 60
days under SB 1630; No specific period under the House Bill, within 90 days under RA 7716
(BCC).
5. E)The House Bill provides for a general repealing clause i.e., all inconsistent laws etc. are
repealed. Section 16 of the Senate Bill expressly repeals Sections 113, 114, 116, 119 and 120 of
the code. The same Senate Bill however contains a general repealing clause in Sec. 21
811
VOL. 235, AUGUST 25, 1994 811
1. thereof.
RA 7716 (BCC’s Bill) expressly repeals Sections 113, 114 and 116 of the NIRC; Article 39 (c) (d)
and (e) of EO 226 and provides the repeal of Sec. 119 and 120 of the NIRC upon the expiration of two (2)
years unless otherwise excluded by the President.”
The charge that the Bicameral Conference Committee added new provisions in the bills of the two chambers is
hardly disputed by respondents. Instead, respondents justify them. According to respondents: (1) the Bicameral
Conference Committee has an ex post veto power or a veto after the fact of approval of the bill by both Houses; (2)
the bill prepared by the Bicameral Conference Committee, with its additions and deletions, was anyway approved by
both Houses; (3) it was the practice in past Congresses for conference committees to insert in bills approved by the
two Houses new provisions that were not originally contemplated by them; and (4) the enrolled bill doctrine
precludes inquiry into the regularity of the proceedings that led to the enactment of R.A. 7716.
With due respect, I reject these contentions which will cave in on closer examination.
First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference Committee
possesses the power to add/delete provisions in bills already approved on third reading by both Houses or an ex
post veto power. To support this postulate that can enfeeble Congress itself, respondents cite no constitutional
provision, no law, not even any rule or regulation. Worse, their stance is categorically repudiated by the rules of
3
both the Senate and the House of Representatives which define with precision the parameters of power of a
Bicameral Conference Committee.
Thus, Section 209, Rule XII of the Rules of the Senate provides:
“In the event that the Senate does not agree with the House of Representatives on the provision of any bill
or joint resolution, the differences shall be settled by a conference committee of both Houses
_______________
3
See p. 66 of the Consolidated Memorandum for Respondents where they refer to certain statements from Canlan,
Weightson and Beam but without citing their specific book or article.
812
2 ANNOTATED
which shall meet within ten days after their composition.
changes in or amendments to the subject measure, and shall be signed by the conferees.” (Emphasis
supplied)
The counterpart rule of the House of Representatives is cast in near identical language. Section 85 of the Rules of
the House of Representatives pertinently provides:
“In the event that the House does not agree with the Senate on the amendments to any bill or joint
resolution, the differences may be settled by a conference committee of both chambers.
x x x. Each report shall contain a detailed, sufficiently explicit statement of the changes in or
amendments to the subject measure.” (Emphasis supplied)
The Jefferson’s Manual has been adopted as a supplement to our parliamentary rules and practice. Section 456 of
4
Jefferson’s Manual similarly confines the powers of a conference committee, viz: 5
“The managers of a conference must confine themselves to the differences committed to them . . . and
may not include subjects not within the disagreements, even though germane to a question in issue.”
This rule of antiquity has been honed and honored in practice by the Congress of the United States. Thus, it is
chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States Senate, viz: 6
“Committees of conference are appointed for the sole purpose of compromising and adjusting the
differing and conflicting opinions of the two Houses and the committees of conference alone can grant
________________
See Rule 49 of the Rules of the Senate.

4
See p. 22, Memorandum of Petitioners in G.R. No. 115781 citing Jefferson’s Manual and Rules of the House of
5
Representatives, by Lewis Deschler, Parliamentarian, U.S. Government Printing Office, 1967, p. 264.
6
Ibid, citing Riddick, Senate Procedure: Precedents and Practices, US Senate, 1981, US Government Printing Office, pp.
383-384.
813
VOL. 235, AUGUST 25, 1994 813
compromises and modify propositions of either Houses within the limits of the disagreement. Conferees
are limited to the consideration of differences between the two Houses.
Conferees shall not insert in their report matters not committed to them by either House, nor shall
they strike from the bill matters agreed to by both Houses. No matter on which there is nothing in either
the Senate or House passed versions of a bill may be included in the conference report and actions to the
contrary would subject the report to a point of order.” (Emphasis ours)
In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of Representatives to support
the thesis of the respondents that a bicameral conference committee is clothed with an ex post veto power.
But the thesis that a Bicameral Conference Committee can wield ex post veto power does not only contravene
the rules of both the Senate and the House. It wages war against our settled ideals of representative democracy. For
the inevitable, catastrophic effect of the thesis is to install a Bicameral Conference Committee as the Third Chamber
of our Congress, similarly vested with the power to make laws but with the dissimilarity that its laws are not the
subject of a free and full discussion of both Houses of Congress. With such a vagrant power, a Bicameral
Conference Committee acting as a Third Chamber will be a constitutional monstrosity.
It needs no omniscience to perceive that our Constitution did not provide for a Congress composed of three
chambers. On the contrary, section 1, Article VI of the Constitution provides in clear and certain language: “The
legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives . . . .” Note that in vesting legislative power exclusively to the Senate and the House, the
Constitution used the word “shall.” Its command for a Congress of two houses is mandatory. It is not mandatory
sometimes.
In vesting legislative power to the Senate, the Constitution means the Senate “. . . composed of twenty-four
Senators x x x elected at large by the qualified voters of the Philippines . . . .” Similarly, when the Constitution
7
vested the legislative power to
________________
Section 2, Article VI.

7
814
4 ANNOTATED
the House, it means the House “. . . composed of not more than two hundred and fifty members x x x who shall be
elected from legislative districts x x x and those who x x x shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations.” The Constitution thus, did not vest on a Bicameral
8
Conference Committee with an ad hoc membership the power to legislate for it exclusively vested legislative power
to the Senate and the House as co-equal bodies. To be sure, the Constitution does not mention the Bicameral
Conference Committees of Congress. No constitutional status is accorded to them. They are not even statutory
creations. They owe their existence from the internal rules of the two Houses of Congress. Yet, respondents peddle
the disconcerting idea that they should be recognized as a Third Chamber of Congress and with ex post veto power
at that.
The thesis that a Bicameral Conference Committee can exercise law making power with ex post veto power is
freighted with mischief. Law making his a power that can be used for good or for ill, hence, our Constitution
carefully laid out a plan and a procedure for its exercise. Firstly, it vouchsafed that the power to make laws should
be exercised by no other body except the Senate and the House. It ought to be indubitable that what is contemplated
is the Senate acting as a full Senate and the House acting as a full House. It is only when the Senate and the House
act as whole bodies that they truly represent the people. And it is only when they represent the people that they can
legitimately pass laws. Laws that are not enacted by the people’s rightful representatives subvert the people’s
sovereignty. Bicameral Conference Committees, with their ad hoc character and limited membership, cannot pass
laws for they do not represent the people. The Constitution does not allow the tyranny of the majority. Yet, the
respondents will impose the worst kind of tyranny—the tyranny of the minority over the majority. Secondly, the
Constitution delineated in deft strokes the steps to be followed in making laws. The overriding purpose of these
procedural rules is to assure that only bills that successfully survive the searching scrutiny of the proper committees
of Congress and the full and
________________
Section 5(1), Article VI.

8
815
VOL. 235, AUGUST 25, 1994 815
unfettered deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3) mandatory
separate readings in each House. In the case at bench, the additions and deletions made by the Bicameral Conference
Committee did not enjoy the enlightened studies of appropriate committees. It is meet to note that the complexities
of modern day legislations have made our committee system a significant part of the legislative process. Thomas
Reed called the committee system as “the eye, the ear, the hand, and very often the brain of the house.” President
Woodrow Wilson of the United States once referred to the government of the United States as “a government by the
Chairmen of the Standing Committees of Congress . . . .” Neither did these additions and deletions of the Bicameral
9
Conference Committee pass through the coils of collective deliberation of the members of the two Houses acting
separately. Due to this shortcircuiting of the constitutional procedure of making laws, confusion shrouds the
enactment of R.A. No. 7716. Who inserted the additions and deletions remains a mystery. Why they were inserted is
a riddle. To use a Churchillian phrase, lawmaking should not be a riddle wrapped in an enigma. It cannot be, for
Article II, section 28 of the Constitution mandates the State to adopt and implement a “policy of full public
disclosure of all its transactions involving public interest.” The Constitution could not have contemplated a Congress
of invisible and unaccountable John and Mary Does. A law whose rationale is a riddle and whose authorship is
obscure cannot bind the people.
All these notwithstanding, respondents resort to the legal cosmetology that these additions and deletions should
govern the people as laws because the Bicameral Conference Committee Report was anyway submitted to and
approved by the Senate and the House of Representatives. The submission may have some merit with respect to
provisions agreed upon by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B.
No. 11197. In these instances, the conflicting provisions had been previously screened by the proper committees,
deliberated upon by both Houses and approved by them. It is, however, a different matter with respect to additions
and deletions
________________
Sutherland, Statutory Construction, 3rd ed., Vol. I, p. 151.

9
816
6 ANNOTATED
which were entirely new and which were made not to reconcile inconsistencies between S.B. No. 1630 and H.B. No.
11197. The members of the Bicameral Conference Committee did not have any authority to add new provisions or
delete provisions already approved by both Houses as it was not necessary to discharge their limited task of
reconciling differences in bills. At that late stage of law making, the Conference Committee cannot add/ delete
provisions which can become laws without undergoing the study and deliberation of both chambers given to bills on
1st, 2nd, and 3rd readings. Even the Senate and the House cannot enact a law which will not undergo these
mandatory three (3) readings required by the Constitution. If the Senate and the House cannot enact such a law,
neither can the lesser Bicameral Conference Committee.
Moreover, the so-called choice given to the members of both Houses to either approve or disapprove the said
additions and deletions is more of an optical illusion. These additions and deletions are not submitted separately for
approval. They are tucked to the entire bill. The vote is on the bill as a package, i.e., together with the insertions and
deletions. And the vote is either “aye” or “nay,” without any further debate and deliberation. Quite often, legislators
vote “yes” because they approve of the bill as a whole although they may object to its amendments by the
Conference Committee. This lack of real choice is well observed by Robert Luce: 10
“Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matter and so the motion to accept
has undue advantage, for some members are sure to prefer swallowing unpalatable provisions rather than
prolong controversy. This is the more likely if the report comes in the rush of business toward the end of a
session, when to seek further conference might result in the loss of the measure altogether. At any time in
the session there is some risk of such a result following the rejection of a conference report, for it may not
be possible to secure a second conference, or delay may give opposition to the main proposal chance to
develop more strength.”
________________
Legislative Procedure, 1922 ed., Riverside Press, p. 404.

10
817
VOL. 235, AUGUST 25, 1994 817
In a similar vein, Prof. Jack Davies commented that “conference reports are returned to assembly and Senate on a
take-it or leave-it-basis, and the bodies are generally placed in the position that to leave-it is a practical
impossibility.” Thus, he concludes that “conference committee action is the most undemocratic procedure in the
11
legislative process.” 12
The respondents also contend that the additions and deletions made by the Bicameral Conference Committee
were in accord with legislative customs and usages. The argument does not persuade for it misappreciates the value
of customs and usages in the hierarchy of sources of legislative rules of procedure. To be sure, every legislative
assembly has the inherent right to promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of
the Constitution provides that “Each House may determine the rules of its proceedings x x x.” But it is hornbook law
that the sources of Rules of Procedure are many and hierarchical in character. Mason laid them down as follows: 13
“x x x
1.Rules of Procedure are derived from several sources. The principal sources are as follows:
1. a.Constitutional rules.
2. b.Statutory rules or charter provisions.
3. c.Adopted rules.
4. d.Judicial decisions.
5. e.Adopted parliamentary authority.
6. f.Parliamentary law.
7. g.Customs and usages.
1. 2.The rules from the different sources take precedence in the order listed above except that
judicial decisions, since they are interpretations of rules from one of the other sources, take the
same precedence as the source interpreted. Thus, for example, an interpretation of a
constitutional provision takes precedence over a statute.
2. 3.Whenever there is conflict between rules from these sources the rule from the source listed
earlier prevails over the rule from the source
_______________
11
Legislative Law and Process in a Nut Shell, West Publishing Co., 1986 ed., p. 81.
12
Ibid.
13
Manual of Legislative Procedure for Legislative and other Governmental Bodies, McGraw Hill Co., Inc., 1953 ed., pp. 32-
33.
818
8 ANNOTATED
1. listed, later. Thus, where the Constitution requires three readings of bills, this provision controls
over any provision of statute, adopted rules, adopted manual, or of parliamentary law, and a rule
of parliamentary law controls over a local usage but must give way to any rule from a higher
source of authority.” (Emphasis ours)
As discussed above, the unauthorized additions and deletions made by the Bicameral Conference Committee
violated the procedure fixed by the Constitution in the making of laws. It is reasonless for respondents therefore to
justify these insertions as sanctioned by customs and usages.
Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial inquiry on
whether Congress observed our constitutional procedure in the passage of R.A. No. 7716. The enrolled bill theory is
a historical relic that should not continuously rule us from the fossilized past. It should be immediately emphasized
that the enrolled bill theory originated in England where there is no written constitution and where Parliament is
supreme. In this jurisdiction, we have a written constitution and the legislature is a body of limited powers.
14
Likewise, it must be pointed out that starting from the decade of the 40’s, even American courts have veered away
from the rigidity and unrealism of the conclusiveness of an enrolled bill. Prof. Sutherland observed: 15
“x x x.
Where the failure of constitutional compliance in the enactment of statutes is not discoverable from
the face of the act itself but may be demonstrated by recourse to the legislative journals, debates,
committee reports or papers of the governor, courts have used several conflicting theories with which to
dispose of the issue. They have held: (1) that the enrolled bill is conclusive and like the sheriff’s return
cannot be attacked; (2) that the enrolled bill is prima facie correct and only in case the legislative journal
shows affirmative contradiction of the constitutional requirement will the bill be held invalid, (3) that
although the enrolled bill is prima facie correct, evidence from the journals, or other extrinsic sources is
admissible to strike the bill down; (4) that the legislative journal is conclusive and the enrolled bill is
valid only if it
_______________
82 CJS 136.

14
Statutory Construction, 3rd ed., Vol. I., p. 223.

15
819
VOL. 235, AUGUST 25, 1994 819
accords with the recital in the journal and the constitutional procedure.”
Various jurisdictions have adopted these alternative approaches in view of strong dissent and dissatisfaction against
the philosophical underpinnings of the conclusiveness of an enrolled bill. Prof. Sutherland further observed:
“x x x Numerous reasons have been given for this rule. Traditionally, an enrolled bill was ‘a record’ and
as such was not subject to attack at common law. Likewise, the rule of conclusiveness was similar to the
common law rule of the inviolability of the sheriff’s return. Indeed, they had the same origin, that is, the
sheriff was an officer of the king and likewise the parliamentary act was a regal act and no official might
dispute the king’s word. Transposed to our democratic system of government, courts held that as the
legislature was an official branch of government the court must indulge every presumption that the
legislative act was valid. The doctrine of separation of powers was advanced as a strong reason why the
court should treat the acts of a co-ordinate branch of government with the same respect as it treats the
action of its own officers; indeed, it was thought that it was entitled to even greater respect, else the court
might be in the position of reviewing the work of a supposedly equal branch of government. When these
arguments failed, as they frequently did, the doctrine of convenience was advanced, that is, that it was not
only an undue burden upon the legislature to preserve its records to meet the attack of persons not
affected by the procedure of enactment, but also that it unnecessarily complicated litigation and confused
the trial of substantive issues.
Although many of these arguments are persuasive and are indeed the basis for the rule in many states
today, they are not invulnerable to attack. The rule most relied on—the sheriff’s return or sworn official
rule—did not in civil litigation deprive the injured party of an action, for always he could sue the sheriff
upon his official bond. Likewise, although collateral attack was not permitted, direct attack permitted
raising the issue of fraud, and at a later date attack in equity was also available; and that the evidence of
the sheriff was not of unusual weight was demonstrated by the fact that in an action against the sheriff no
presumption of its authenticity prevailed.
The argument that the enrolled bill is a ‘record’ and therefore unimpeachable is likewise misleading,
for the correction of records is a matter of established judicial procedure. Apparently, the justification is
either the historical one that the king’s word could not be questioned or the separation of powers principle
that one branch of the government must treat as valid the acts of another.
820
0 ANNOTATED
Persuasive as these arguments are, the tendency today is to avoid reaching results by artificial
presumptions and thus it would seem desirable to insist that the enrolled bill stand or fall on the basis of
the relevant evidence which may be submitted for or against it.”(Emphasis ours)
Thus, as far back as the 1940’s, Prof. Sutherland confirmed that “x x x the tendency seems to be toward the
abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima
faciepresumption of validity which may be attacked by any authoritative source of information.” 16
I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as enunciated in the
1947 lead case of Mabanag v. Lopez Vito, and reiterated in subsequent cases. 17
With due respect, I submit that these rulings are no longer good law. Part of the ratiocination in Mabanagstates:
“x x x.
If for no other reason than that it conforms to the expressed policy of our law making body, we choose
to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No. 2210,
provides: ‘Official documents’ may be proved as follows: * * * (2) the proceedings of the Philippine
Commission, or of any legislative body that may be provided for in the Philippine Islands, or of Congress,
by the journals of those bodies or of either house thereof, or by published statutes or resolutions, or by
copies certified by the clerk or secretary, or printed by their order; Provided, That in the case of Acts of
the Philippine Commission or the Philippine Legislature, when there is an existence of a copy signed by
the presiding officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such
Acts and of the due enactment thereof.”
________________
Op. cit., pp. 224-225 citing Barndall Refining v. Welsh, 64 S.D. 647, 269 N.W. 853, 859 [1936].
16
Jones, Constitutional Provisions Regulating the Mechanics of Enactment in Iowa (1935), 21 Iowa Law Rev. 79,
Charlton, Constitutional Regulation of Legislative Procedure (1936), 21 Iowa Law Rev. 538; Note (1936) 21 Iowa Law
Rev. 573.
See Mabanag v. Lopez Vito, 78 Phil. Rep. 1 [1947]; Casco Phil. Chemical Co. v. Gimenez, L-17931, February 28,
17
1963; Morales v. Subido, No. L-29658, February 27, 1969, 27 SCRA 131; Phil. Judges Association v. Prado, G.R. No.
105371, November 11, 1993.
821
VOL. 235, AUGUST 25, 1994 821
Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 is no longer in our
statute books. It has long been repealed by the Rules of Court. Mabanag also relied on jurisprudence and authorities
in the United States which are under severe criticisms by modern scholars. Hence, even in the United States the
conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as late as last year, in the
case of Philippine Judges Association v. Prado, op. cit., this Court still relied on the conclusiveness of an enrolled
bill as it refused to invalidate a provision of law on the ground that it was merely inserted by the bicameral
conference committee of both Houses. Prado,however, is distinguishable. In Prado, the alleged insertion of the
second paragraph of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does not appear to
be an uncontested fact. In the case at bench, the numerous additions/deletions made by the Bicameral Conference
Committee as detailed by petitioners Tolentino and Salonga are not disputed by the respondents. In Prado,the Court
was not also confronted with the argument that it can no longer rely on the conclusiveness of an enrolled bill in light
of the new provision in the Constitution defining judicial power. More specifically, section 1 of Article VIII now
provides:
“Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.” (Emphasis supplied)
Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission
explained the sense and the reach of judicial power as follows: 18
_______________
Record, Constitutional Commission, Vol. I, p. 436; see also, Bernas, The Constitution of the Republic of the
18
Philippines. A Commentary, 1988 ed., p. 255.

822
2 ANNOTATED
“x x x.
x x x In other words, the judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute political
question.” (Emphasis ours)
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any
act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion
amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers
of this Court against the other branches of government despite their more democratic character, the President and the
legislators being elected by the people. It is, however, theorized that this provision is nothing new. I beg to disagree
19
for the view misses the significant changes made in our constitutional canvass to cure the legal deficiencies we
discovered during martial law. One of the areas radically changed by the framers of the 1987 Constitution is the
imbalance of power between and among the three great branches of our government—the Executive, the Legislative
and the Judiciary. To upgrade the powers of the Judiciary, the Constitutional Commission strengthened some more
the independence of courts. Thus, it further protected the security of tenure of the members of the Judiciary by
providing “No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members.” It also guaranteed fiscal autonomy to the Judiciary.
20 21
More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was tasked
with
_______________
Citing Marbury v. Madison, 1 Cranch 137 L. ed [1803].

19
Article VIII, section 2.

20

21
823
VOL. 235, AUGUST 25, 1994 823
screening the list of prospective appointees to the judiciary. The power of confirming appointments to the judiciary
22
was also taken away from Congress. The President was likewise given a specific time to fill up vacancies in the
23
judiciary—ninety (90) days from the occurrence of the vacancy in case of the Supreme Court and ninety (90) days
24
from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower
courts. To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the
25
power to “appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.” And to
26
make the separation of the judiciary from the other branches of government more watertight, it prohibited members
of the judiciary to be “. . . designated to any agency performing quasi judicial or administrative functions.” While27
the Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of
government, especially the Executive. Notable of the powers of the President clipped by the Constitution is his
power to suspend the writ of habeas corpus and to proclaim martial law. The exercise of this power is now subject to
revocation by Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be
reviewed by this Court in an appropriate proceeding filed by any citizen. 28
The provision defining judicial power as including the “duty of the courts of justice . . . to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government” constitutes the capstone of the efforts of the Constitutional Commission to
upgrade the powers of this Court vis-a-vis the other branches of government. This provision was dictated by our
experience under martial law which taught us that a stronger and more independent judiciary is needed to abort
_______________

22

23
Article VIII, section 4(1).

24

25

26

27
Article VII, section 18.

28
824
4 ANNOTATED
abuses in government. As sharply stressed by petitioner Salonga, this provision is distinctly Filipino and its
interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. It is thus crystal
clear that unlike other Supreme Courts, this Court has been mandated by our new Constitution to be a more active
agent in annulling acts of grave abuse of discretion committed by a branch of government or any of its officials. This
new role, however, will not compel the Court, appropriately defined by Prof. A. Bickel as the least dangerous branch
of government, to assume imperial powers and run roughshod over the principle of separation of power for that is
judicial tyranny by any language. But while respecting the essentials of the principle of separation of power, the
Court is not to be restricted by its non-essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the
ground that its enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by any
means wrecking the wall separating the powers between the legislature and the judiciary. For in so doing, the Court
is not engaging in lawmaking which is the essence of legislative power. But the Court’s interposition of power
should not be defeated by the conclusiveness of the enrolled bill. A resort to this fiction will result in the enactment
of laws not properly deliberated upon and passed by Congress. Certainly, the enrolled bill theory was not conceived
to cover up violations of the constitutional procedure in law making, a procedure intended to assure the passage of
good laws. The conclusiveness of the enrolled bill can, therefore, be disregarded for it is not necessary to preserve
the principle of separation of powers.
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse
of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated
by our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973
Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress—this Court is mandated to approach constitutional violations not by
finding out what it should not do but what it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
825
VOL. 235, AUGUST 25, 1994 825
I vote to declare R.A. No. 7716 unconstitutional.
Petitions dismissed.
Notes.—Despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not
hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its
only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and
discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its
decisions. (Luz Farms vs. Secretary of the Department of Agrarian Reform, 192 SCRA 51 [1990])
We start with the established principle that the exclusive nature of any public franchise is not favored. We may
interpret in favor of exclusiveness only when the statute grants it in express, clear, and unmistakable terms. In all
grants by the government to private corporations, the interpretation of rights, privileges, or franchises is taken
against the grantee. Whatever is not clearly and expressly granted is withheld. (Alger Electric, Inc. vs. Court of
Appeals, 135 SCRA 37 [1985])

2 ANNOTATED
Gonzales vs. Macaraig, Jr.
G.R. No. 87636. November 19, 1990. *
NEPTALI A. GONZALES, ERNESTO M. MACEDA, ALBERTO G. ROMULO, HEHERSON T. ALVAREZ,

EDGARDO J. ANGARA, AGAPITO A. AQUINO, TEOFISTO T. GUINGONA, JR., ERNESTO F. HERRERA,
JOSE D. LINA, JR., JOHN OSMEÑA, VICENTE T. PATERNO, RENE A. SAGUISAG, LETICIA RAMOS-
SHAHANI, MAMINTAL ABDUL J. TAMANO, WIGBERTO E. TAÑADA, JOVITO R. SALONGA, ORLANDO
S. MERCADO, JUAN PONCE ENRILE, JOSEPH ESTRADA, SOTERO LAUREL, AQUILINO PIMENTEL, JR.,
SANTANINA RASUL, VICTOR ZIGA, petitioners, vs. HON. CATALINO MACARAIG, JR., HON. VICENTE
JAYME, HON. CARLOS DOMINGUEZ, HON. FULGENCIO FACTORAN, HON. FIORELLO ESTUAR, HON.
LOURDES QUISUMBING, HON. RAUL MANGLAPUS, HON. ALFREDO BENGSON, HON. JOSE
CONCEPCION, HON. LUIS SANTOS, HON. MITA PARDO DE TAVERA, HON. RAINERIO REYES, HON.
GUILLERMO CARAGUE, HON. ROSALINA CAJUCOM and HON. EUFEMIO C. DOMINGO, respondents.
Constitutional Law; Separation of Powers; The contextual reiteration of Section 55 (FY ’89) in Section 16 (FY ’90) and
again its veto by the President, underscore the need for judicial arbitrament.—We take note as well of what petitioners stress as
the “imperative need for a definitive ruling by this Court as to the exact parameters of the exercise of the item-veto power of the
President as regards appropriation bills x x x in order to obviate the recurrence of a similar problem whenever a general
appropriations bill is passed by Congress.” Indeed, the contextual reiteration of Section 55 (FY ’89) in Section 16 (FY ’90) and
again, its veto by the President, underscore the need for judicial arbitrament. The Court does not thereby assert its superiority
over or exhibit lack of respect due the other co-ordinate departments but discharges a solemn and sacred duty to determine
essentially the scope of intersecting powers in regard which the Executive and the Senate are in dispute.
Same; Same; Same; The political question doctrine neither interposes an obstacle to judicial determination of the rival
claims.—The
_______________
EN BANC.
*
453
VOL. 191, NOVEMBER 19, 1990 4
53
political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.
Same; Same; Same; Same; The doctrine of separation of powers is in no way endangered because the transfer is made
within a department (or branch of the government) and not from one department (branch) to another.—There should be no
question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and
resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made
within a department (or branch of government) and not from one department (branch) to another.
Same; Executive Department; Veto-power; The power given the executive to disapprove any item or items in an
Appropriations Bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item.
—As specified, the President may not veto less than all of an item of an Appropriations Bill. In other words, the power given the
executive to disapprove any item or items in an Appropriations Bill does not grant the authority to veto a part of an item and to
approve the remaining portion of the same item.
Same; Legislation; Appropriation Bill; The terms item and provision in budgetary legislation and practice are
concededly different.—The terms item and provision in budgetary legislation and practice are concededly different. An item in a
bill refers to the particulars, the details, the distinct and severable parts x x x of the bill ( Bengzon, supra, at 916). It is an
indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281).
The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 S.Ct 252, 81 L. Ed., 312)
declared “that 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.”
Same; Same; Same; Same; Section 55 (FY ‘89) and Section 16 (FY ‘90) are not provisions in the budgetary sense of the
term.—But even
454
54 ANNOTATED
assuming arguendo that provisions are beyond the executive power to veto, we are of the opinion that Section 55 (FY ‘89)
and Section 16 (FY ‘90) are not provisions in the budgetary sense of the term.
Same; Same; Same; Same; Section 55 (FY ‘89) and Section 16 (FY ‘90) although labelled as provisions are actually
inappropriate provisions that should be treated as items for the purpose of the President’s veto power. —Explicit is the
requirement that a provision in the Appropriations Bill should relate specifically to some “particular appropriation” therein. The
challenged “provisions” fall short of this requirement. Firstly, the vetoed “provisions” do not relate to any particular or distinctive
appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Secondly, the
disapproved or reduced items are nowhere to be found on the face of the Bill. To discover them, resort will have to be made to
the original recommendations made by the President and to the source indicated by petitioners themselves, i.e., the “Legislative
Budget Research and Monitoring Office” (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more of an expression
of Congressional policy in respect of augmentation from savings rather than a budgetary appropriation. Consequently, Section 55
(FY ‘89) and Section 16 (FY ‘90) although labelled as “provisions,”are actually inappropriate provisions that should be treated
as items for the purpose of the President’s veto power.
Same; Same; Same; Same; The Executive is not allowed to veto a condition or proviso of an appropriation while
allowing the appropriation itself to stand.—There can be no denying that inherent in the power of appropriation is the power to
specify how money shall be spent; and that in addition to distinct “items” of appropriation, the Legislature may include in
Appropriation Bills qualifications, conditions, limitations or restrictions on expenditure of funds. Settled also is the rule that the
Executive is not allowed to veto a condition or proviso of an appropriation while allowing the appropriation itself to stand
(Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra,which held that the veto of a condition in an
Appropriations Bill which did not include a veto of the items to which the condition related was deemed invalid and without
effect whatsoever.
Same; Same; Same; Same; Same; Restrictions or conditions in an Appropriations Bill must exhibit a connection with
money items in a budgetary sense in the schedule of expenditures.—However, for the rule to apply, restrictions should be such in
the real sense of the term, not some matters which are more properly dealt with in a separate
455
VOL. 191, NOVEMBER 19, 1990 4
55
legislation (Henry v. Edwards, La, 346, So 2d 153). Restrictions or conditions in an Appropriations Bill must exhibit a
connection with money items in a budgetary sense in the schedule of expenditures. Again, the test is appropriateness.
Same; Same; Same; Same; Same; Same; Section 55 (FY ‘89) and Section 16 (FY ‘90) held to be inappropriate
conditions.—Tested by these criteria. Section 55 (FY ‘89) and Section 16 (FY ‘90) must also be held to be inappropriate
“conditions.” While they, particularly, Section 16 (FY ‘90), have been “artfully drafted” to appear as true conditions or
limitations, they are actually general law measures more appropriate for substantive and, therefore, separate legislation.
Same; Same; Same; Same; Same; Same; Same; Sections 55 (FY ‘89) and 16 (FY ‘90) therefore impair the constitutional
and statutory authority of the President and other key officials to augment any item or any appropriation from savings in the
interest of expediency and efficiency.—When Sections 55 (FY ‘89) and 16 (FY ‘90), therefore, prohibit the restoration or increase
by augmentation of appropriations disapproved or reduced by Congress, they impair the constitutional and statutory authority of
the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and
efficiency. The exercise of such authority in respect of disapproved or reduced items by no means vests in the Executive the
power to rewrite the entire budget, as petitioners contend, the leeway granted being delimited to transfers within the department
or branch concerned, the sourcing to come only from savings.
GUTIERREZ, JR., J., Dissenting:
Laws passed by Congress can be vetoed by the President only in their entirety or none at all. —As a general rule, laws
passed by Congress can be vetoed by the President only in their entirety or none at all. She cannot select provisions and sections
she does not like and veto them while approving the rest of the statute. The Constitution allows a limited power of veto only
when it comes to appropriation, revenue or tariff bills. The power is limited to items. It should not be interpreted by this Court to
mean the expanded power to also veto “provisions.” To state it in another way, the President may veto a distinct and severable
part of a bill only—(1) if that severable part is an item and not a provision, and (2) if that severable part belongs to an
appropriation, revenue or tariff bill. All other bills must be vetoed in their entirety.
456
6 ANNOTATED
CRUZ, J., Dissenting:
The power of the purse belongs to Congress and has been traditionally recognized in the Constitutional provision that “no
money shall be paid out of the treasury except in pursuance of an appropriation made by law.”—The power of the purse belongs
to Congress and has been traditionally recognized in the constitutional provision that “no money shall be paid out of the Treasury
except in pursuance of an appropriation made by law.” The transfer of funds from one item to another in the General
Appropriations Act is part of that power, except that the Constitution allows Congress to delegate it by law to the President, the
Senate President, the Speaker of the House of Representatives, the Chief Justice and the heads of the Constitutional
Commissions. When exercising this authority, the aforementioned officials act not by virtue of their own competence but only
as agents of Congress.
President needs statutory authority before she can augment.—In justifying her veto, the President says that “the provision
violates section 25(5) of Article VI of the Constitution,” as if to suggest that she derives her power of augmentation directly from
this section. She does not, of course. This is not a self-executing provision. The said section states that she and the other officials
mentioned therein “may, by law, be authorized to augment any item in the general appropriations law for their respective
offices. . .” This means she needs statutory authority before she can augment.
PETITION for prohibition/mandamus assailing mainly the constitutionality or legality of Presidential veto of
Section 55.
Gonzales, Batiller, Bilog & Associates for petitioners.
MELENCIO-HERRERA, J.:
This constitutional controversy between the legislative and executive departments of government stemmed from
Senate Resolution No. 381, adopted on 2 February 1989,
“Authorizing and Directing the Committee on Finance to Bring in the Name of the Senate of the
Philippines the Proper Suit with the Supreme Court of the Philippines contesting the Constitutionality of
the Veto by the President of Special and General Provisions, particu-
457
VOL. 191, NOVEMBER 19, 1990 457
larly Section 55, of the General Appropriation Bill of 1989 (H.B. No. 19186) and For Other Purposes.”
Petitioners are thus before us as members and ex-officio members of the Committee on Finance of the Senate and as
“substantial taxpayers whose vital interests may be affected by this case.”
Respondents are members of the Cabinet tasked with the implementation of the General Appropriations Act of
1989 and 1990, some of them incumbents, while others have already been replaced, and include the National
Treasurer and the Commission on Audit Chairman, all of whom are being sued in their official capacities.
The Background Facts
On 16 December 1988, Congress passed House Bill No. 19186, or the General Appropriations Bill for the Fiscal
Year 1989. As passed, it eliminated or decreased certain items included in the proposed budget submitted by the
President.
Pursuant to the constitutional provision on the passage of bills, Congress presented the said Bill to the President
for consideration and approval.
On 29 December 1988, the President signed the Bill into law, and declared the same to have become Rep. Act
No. 6688. In the process, seven (7) Special Provisions and Section 55, a “General Provision,” were vetoed.
On 2 February 1989, the Senate, in the same Resolution No. 381 mentioned at the outset, further expressed:
“WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate express its sense that the veto by
the President of Section 55 of the GENERAL PROVISIONS of the General Appropriation Bill of 1989
(H.B. No. 19186) is unconstitutional and, therefore, void and without any force and effect; hence, the
aforesaid Section 55 remains;
“x x x x x x x x x”
Thus it is that, on 11 April 1989, this Petition for Prohibition/ Mandamus was filed, with a prayer for the issuance of
a Writ of Preliminary Injunction and Restraining Order, assailing mainly the constitutionality or legality of the
Presidential veto of Sec-
458
8 ANNOTATED
tion 55, and seeking to enjoin respondents from implementing Rep. Act No. 6688. No Restraining Order was issued
by the Court.
The Comment, submitted by the Solicitor General on 25 August 1989 (after several extensions granted), was
considered as the Answer to the Petition and, on 7 September 1989, the Court Resolved to give due course to the
Petition and to require the parties to submit their respective Memoranda. Petitioners filed their Memorandum on 12
December 1989. But, on 19 January 1990, they filed a Motion for Leave to File and to Admit Supplemental Petition,
which was granted, basically raising the same issue as in the original Petition, this time questioning the President’s
veto of certain provisions, particularly Section 16, of House Bill 26934, or the General Appropriations Bill for Fiscal
Year 1990, which the President declared to have become Rep. Act No. 6831.
The Solicitor General’s Comment on the Supplemental Petition, on behalf of respondent public officials, was
submitted on 24 April 1990. On 15 May 1990, the Court required the parties to file simultaneously their
consolidated memoranda, to include the Supplemental Petition, within an inextendible period of thirty (30) days
from notice. However, because the original Resolution of 15 May 1990 merely required the filing of a memorandum
on the Supplemental Petition, a revised Resolution requiring consolidated memoranda, within thirty (30) days from
notice, was released on 28 June 1990.
The Consolidated Memoranda were respectively filed on 26 June 1990 by petitioners, and on 1 August 1990 by
respondents. On 14 August 1990, both Memoranda were Noted and the case was deemed submitted for deliberation.
On 11 September 1990, the Court heard the case on oral argument and required the submittal of supplemental
Memoranda, the last of which was filed on 26 September 1990.
The Vetoed Provisions and Reasons Therefor
Section 55 of the Appropriations Act of 1989 (Section 55 [FY ‘89] hereinafter), which was vetoed by the President,
reads:
459
VOL. 191, NOVEMBER 19, 1990 459
“SEC. 55. Prohibition Against the Restoration or Increase of Recommended Appropriations Disapproved
and/or Reduced by Congress: No item of appropriation recommended by the President in the Budget
submitted to Congress pursuant to Article VII, Section 22 of the Constitution which has been disapproved
or reduced in this Act shall be restored or increased by the use of appropriations authorized for other
purposes by augmentation. An item of appropriation for any purpose recommended by the President in
the Budget shall be deemed to have been disapproved by Congress if no corresponding appropriation for
the specific purpose is provided in this Act.”
We quote below the reason for the Presidential veto:
“The provision violates Section 25 (5) of Article VI of the Constitution. If allowed, this Section would
nullify not only the constitutional and statutory authority of the President, but also that of the President of
the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and
Heads of Constitutional Commissions, to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations. A careful review of the
legislative action on the budget as submitted shows that in almost all cases, the budgets of agencies as
recommended by the President, as well as those of the Senate, the House of Representatives, and the
Constitutional Commissions, have been reduced. An unwanted consequence of this provision is the
inability of the President, the President of the Senate, Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional Commissions to augment any item of
appropriation of their respective offices from savings in other items of their respective appropriations
even in cases of calamity or in the event of urgent need to accelerate the implementation of essential
public services and infrastructure projects.
“Furthermore, this provision is inconsistent with Section 12 and other similar provisions of this
General Appropriations Act.”
A substantially similar provision as the vetoed Section 55 appears in the Appropriations Act of 1990, this time
crafted as follows:
“B. GENERAL PROVISIONS
“Sec. 16. Use of Savings.—The President of the Philippines, the President of the Senate, the Speaker
of the House of Representatives,
460
0 ANNOTATED
the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions under Article IX of the
Constitution and the Ombudsman are hereby authorized to augment any item in this Act for their
respective offices from savings in other items of their appropriations: PROVIDED, THAT NO ITEM OF
APPROPRIATION RECOMMENDED BY THE PRESIDENT IN THE BUDGET SUBMITTED TO
CONGRESS PURSUANT TO ARTICLE VII, SECTION 22 OF THE CONSTITUTION WHICH HAS
BEEN DISAPPROVED OR REDUCED BY CONGRESS SHALL BE RESTORED OR INCREASED
BY THE USE OF APPROPRIATIONS AUTHORIZED FOR OTHER PURPOSES IN THIS ACT BY
AUGMENTATION. AN ITEM OF APPROPRIATION FOR ANY PURPOSE RECOMMENDED BY
THE PRESIDENT IN THE BUDGET SHALL BE DEEMED TO HAVE BEEN DISAPPROVED BY
CONGRESS IF NO CORRESPONDING APPROPRIATION FOR THE SPECIFIC PURPOSE IS
PROVIDED IN THIS ACT.”
It should be noted that in the 1989 Appropriations Act, the “Use of Savings” appears in Section 12, separate and
apart from Section 55; whereas in the 1990 Appropriations Act, the “Use of Savings” and the vetoed provision have
been commingled in Section 16 only, with the vetoed provision made to appear as a condition or restriction.
Essentially the same reason was given for the veto of Section 16 (FY ‘90), thus:
“I am vetoing this provision for the reason that it violates Section 25 (5) of Article VI of the Constitution
in relation to Sections 44 and 45 of P.D. No. 1177 as amended by R.A. No. 6670 which authorizes the
President to use savings to augment any item of appropriations in the Executive Branch of the
Government.
“Parenthetically, there is a case pending in the Supreme Court relative to the validity of the
President’s veto on Section 55 of the General Provisions of Republic Act No. 6688 upon which the
amendment on this Section was based. Inclusion, therefore, of the proviso in the last sentence of this
section might prejudice the Executive Branch’s position in the case.
“Moreover, if allowed, this Section would nullify not only the constitutional and statutory authority of
the President, but also that of the officials enumerated under Section 25 (5) of Article VI of the
Constitution, to augment any item in the general appropriations law for their respective appropriations.
“An unwanted consequence of this provision would be the inability of the President, the President of
the Senate, Speaker of the House
461
VOL. 191, NOVEMBER 19, 1990 461
of Representatives, the Chief Justice of the Supreme Court, and heads of Constitutional Commissions to
augment any item of appropriation of their respective offices from savings in other items of their
respective appropriations even in cases of national emergency or in the event of urgent need to accelerate
the implementation of essential public services and infrastructure projects.”
The fundamental issue raised is whether or not the veto by the President of Section 55 of the 1989 Appropriations
Bill (Section 55 FY ‘89), and subsequently of its counterpart Section 16 of the 1990 Appropriations Bill (Section 16
FY ‘90), is unconstitutional and without effect.
The Contending Views
In essence, petitioners’ cause is anchored on the following grounds: (1) the President’s line-veto power as regards
appropriation bills is limited to item/s and does not cover provision/s; therefore, she exceeded her authority when
she vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90) which are provisions; (2) when the President objects to
a provision of an appropriation bill, she cannot exercise the item-veto power but should veto the entire bill; (3) the
item-veto power does not carry with it the power to strike out conditions or restrictions for that would be legislation,
in violation of the doctrine of separation of powers; and (4) the power of augmentation in Article VI, Section 25 [5]
of the 1987 Constitution, has to be provided for by law and, therefore, Congress is also vested with the prerogative
to impose restrictions on the exercise of that power.
The Solicitor General, as counsel for public respondents, counters that the issue at bar is a political question
beyond the power of this Court to determine; that petitioners had a political remedy, which was to override the veto;
that Section 55 is a “rider” because it is extraneous to the Appropriations Act and, therefore, merits the President’s
veto; that the power of the President to augment items in the appropriations for the executive branches had already
been provided for in the Budget Law, specifically Sections 44 and 45 of Pres. Decree No. 1177, as amended by Rep.
Act No. 6670 (4 August 1988); and that the President is empowered by the Constitution to veto provisions
462
2 ANNOTATED
or other “distinct and severable parts” of an Appropriations Bill.
Judicial Determination
With the Senate maintaining that the President’s veto is unconstitutional, and that charge being controverted, there is
an actual case or justiciable controversy between the Upper House of Congress and the executive department that
may be taken cognizance of by this Court.
“Indeed, where the legislature or the executive branch is acting within the limits of its authority, the
judiciary cannot and ought not to interfere with the former. But where the legislature or the executive acts
beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the
other branches of the government had assumed to do as void. This is the essence of judicial power
conferred by the Constitution ‘in one Supreme Court and in such lower courts as may be established by
law’ [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which
was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and
which power this Court has exercised in many instances” (Demetria vs. Alba, G.R. No. 71977, 27
February 1987, 148 SCRA 209).
We take note as well of what petitioners stress as the “imperative need for a definitive ruling by this Court as to the
exact parameters of the exercise of the item-veto power of the President as regards appropriation bills x x x in order
to obviate the recurrence of a similar problem whenever a general appropriations bill is passed by Congress.”
Indeed, the contextual reiteration of Section 55 (FY 89) in Section 16 (FY ’90) and again, its veto by the President,
underscore the need for judicial arbitrament. The Court does not thereby assert its superiority over or exhibit lack of
respect due the other co-ordinate departments but discharges a solemn and sacred duty to determine essentially the
scope of intersecting powers in regard which the Executive and the Senate are in dispute.
Petitioners have also brought this suit as taxpayers. As ruled in Sanidad v. COMELEC (No. L-44640, 12
October 1976, 73 SCRA 333), this Court enjoys the open discretion to entertain
463
VOL. 191, NOVEMBER 19, 1990 463
taxpayers suits or not. In Tolentino v. COMELEC (No. L-34150, 16 October 1961, 41 SCRA 702), it was also held
that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.
The political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the
principle in appropriate cases.
“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.”
Nor is this the first time that the constitutionality of a Presidential veto is raised to the Court. The two oft-cited cases
are Bengson v. Secretary of Justice (62 Phil. 912[1936]), pennned by Justice George A. Malcolm, which upheld the
veto questioned before it, but which decision was reversed by the U.S. Supreme Court in the same entitled case
in 292 U.S. 410, infra, essentially on the ground that an Appropriations Bill was not involved. The second case
is Bolinao Electronics v. Valencia (G.R. No. L-20740, 30 June 1964, 11 SCRA 486), infra, which rejected the
President’s veto of a condition or restriction in an Appropriations Bill.
The Extent of the President’s Item-veto Power
The focal issue for resolution is whether or not the President exceeded the item-veto power accorded by the
Constitution. Or differently put, has the President the power to veto “provisions” of an Appropriations Bill?
Petitioners contend that Section 55 (FY ‘89) and Section 16 (FY ‘90) are provisions and not items and are,
therefore, outside the scope of the item-veto power of the President.
464
4 ANNOTATED
The veto power of the President is expressed in Article VI, Section 27 of the 1987 Constitution reading, in full, as
follows:
“Sec. 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become
a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the
Members voting for or against shall be entered in its Journal. The President shall communicate his veto of
any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it
shall become a law as if he had signed it.
“(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.”
Paragraph (1) refers to the general veto power of the President and if exercised would result in the veto of the entire
bill, as a general rule. Paragraph (2) is what is referred to as the item-veto power or the line-veto power. It allows the
exercise of the veto over a particular item or items in an appropriation, revenue, or tariff bill. As specified, the
President may not veto less than all of an item of an Appropriations Bill. In other words, the power given the
executive to disapprove any item or items in an Appropriations Bill does not grant the authority to veto a part of an
item and to approve the remaining portion of the same item.
Originally, item veto exclusively referred to veto of itemsof appropriation bills and first came into being in the
former Organic Act, the Act of Congress of 29 August 1916. This was followed by the 1935 Constitution, which
contained a similar provision in its Section 11 (2), Article VI, except that the veto power was made more expansive
by the inclusion of this sentence:
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“x x x When a provision of an appropriation bill affects one or more items of the same, the President can
not veto the provision without at the same time vetoing the particular item or items to which it relates x x
x.”
The 1935 Constitution further broadened the President’s veto power to include the veto of item or items of revenue
and tariff bills.
With the advent of the 1973 Constitution, the section took a more simple and compact form, thus:
“Section 20 (2). The Prime Minister 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.”
It is to be noted that the counterpart provision in the 1987 Constitution (Article VI, Section 27 [2], supra), is a
verbatim reproduction except for the public official concerned. In other words, also eliminated has been any
reference to the veto of a provision. The vital question is: should this exclusion be interpreted to mean as a
disallowance of the power to veto a provision, as petitioners urge?
The terms item and provision in budgetary legislation and practice are concededly different. An item in a bill
refers to the particulars, the details, the distinct and severable parts x x x of the bill ( Bengzon, supra, at 916). It is an
indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc.,
176 Va. 281). The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414,
57 S.Ct 252, 81 L. Ed., 312) declared “that 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.”
It is our considered opinion that, notwithstanding the elimination in Article VI, Section 27 (2) of the 1987
Constitution of any reference to the veto of a provision, the extent of the President’s veto power as previously
defined by the 1935 Constitution has not changed. This is because the eliminated proviso merely pronounces the
basic principle that a distinct and severable
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6 ANNOTATED
part of a bill may be the subject of a separate veto (Bengzon v. Secretary of Justice, 62 Phil., 912, 916 (1926); 2
BERNAS, Joaquin, S.J., The Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]).
The restrictive interpretation urged by petitioners that the President may not veto a provision without vetoing the
entire bill not only disregards the basic principle that a distinct and severable part of a bill may be the subject of a
separate veto but also overlooks the Constitutional mandate that any provision in the general appropriations bill shall
relate specifically to some particular appropriation therein and that any such provision shall be limited in its
operation to the appropriation to which it relates (1987 Constitution, Article VI, Section 25 [2]). In other words, in
the true sense of the term, a provision in an Appropriations Bill is limited in its operation to some particular
appropriation to which it relates, and does not relate to the entire bill.
Petitioners’ further submission that, since the exercise of the veto power by the President partakes of the nature
of legislative powers it should be strictly construed, is negatived by the following dictum in Bengzon, supra,reading:
“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 the same as they will presume the constitutionality of an act as originally
passed by the Legislature” (Commonwealth v. Barnett [1901], 199 Pa., 161; 55 L.R.A., 882; People v.
Board of Councilmen [1892], 20 N.Y.S., 52; Fulmore v. Lane [1911], 104 Tex., 499; Texas Co. v.
State [1927], 53 A.L.R., 258 [at 917]).
Inappropriateness of the so-called “Provisions”
But even assuming arguendo that provisions are beyond the executive power to veto, we are of the opinion that
Section 55
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VOL. 191, NOVEMBER 19, 1990 467
(FY ‘89) and Section 16 (FY ‘90) are not provisions in the budgetary sense of the term. Article VI, Section 25 (2) of
the 1987 Constitution provides:
“Sec. 25 (2) No provision or enactment shall be embraced in the general appropriations bill unless it
relates specifically to some particular appropriation therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates.”
Explicit is the requirement that a provision in the Appropriations Bill should relate specifically to some “particular
appropriation” therein. The challenged “provisions” fall short of this requirement. Firstly, the vetoed “provisions”
do not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced
by Congress in the Appropriations Bill. Secondly, the disapproved or reduced items are nowhere to be found on the
face of the Bill. To discover them, resort will have to be made to the original recommendations made by the
President and to the source indicated by petitioners themselves, i.e., the “Legislative Budget Research and
Monitoring Office” (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more of an expression of
Congressional policy in respect of augmentation from savings rather than a budgetary appropriation. Consequently,
Section 55 (FY ’89) and Section 16 (FY ’90) although labelled as “provisions,” are actually inappropriate
provisions that should be treated as items for the purpose of the President’s veto power. (Henry v. Edwards [1977]
346 S Rep. 2d, 157-158).
“Just as the President may not use his item-veto to usurp constitutional powers conferred on the
legislature, neither can the legislature deprive the Governor of the constitutional powers conferred on him
as chief executive officer of the state by including in a general appropriation bill matters more properly
enacted in separate legislation. The Governor’s constitutional power to veto bills of general legislation . . .
cannot be abridged by the careful placement of such measures in a general appropriation bill, thereby
forcing the Governor to choose between approving unacceptable substantive legislation or vetoing ‘items’
of expenditure essential to the operation of government. The legislature cannot by location of a bill give it
immunity from executive veto. Nor can it circumvent the Governor’s veto power over
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8 ANNOTATED
substantive legislation by artfully drafting general law measures so that they appear to be true conditions
or limitations on an item of appropriation. Otherwise, the legislature would be permitted to impair the
constitutional responsibilities and functions of a co-equal branch of government in contravention of the
separation of powers doctrine . . . We are no more willing to allow the legislature to use its appropriation
power to infringe on the Governor’s constitutional right to veto matters of substantive legislation than we
are to allow the Governor to encroach on the constitutional powers of the legislature. In order to avoid
this result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation
bill, such provisions must be treated as ‘items’ for purposes of the Governor’s item veto power over
general appropriation bills.
x x x x x x x x x
“x x x Legislative control cannot be exercised in such a manner as to encumber the general
appropriation bill with veto-proof ‘logrolling measure,’ special interest provisions which could not
succeed if separately enacted, or ‘riders,’ substantive pieces of legislation incorporated in a bill to insure
passage without veto. x x x” (Italics supplied)
Inappropriateness of the so-called “Conditions/Restrictions”
Petitioners maintain, however, that Congress is free to impose conditions in an Appropriations Bill and where
conditions are attached, the veto power does not carry with it the power to strike them out, citing Commonwealth v.
Dodson (11 SE, 2d 130, supra) and Bolinao Electronics Corporation v. Valencia (No. L-20740, June 30, 1964, 11
SCRA 486). In other words, their theory is that Section 55 (FY ‘89) and Section 16 (FY ‘90) are such
conditions/restrictions and thus beyond the veto power.
There can be no denying that inherent in the power of appropriation is the power to specify how money shall be
spent; and that in addition to distinct “items” of appropriation, the Legislature may include in Appropriation Bills
qualifications, conditions, limitations or restrictions on expenditure of funds. Settled also is the rule that the
Executive is not allowed to veto a condition or proviso of an appropriation while allowing the appropriation itself to
stand (Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra, which held that the veto of a
condition in an Appropriations Bill which did not include a veto of the items to which the condition related was
deemed invalid and without effect whatsoever.
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VOL. 191, NOVEMBER 19, 1990 469
However, for the rule to apply, restrictions should be such in the real sense of the term, not some matters which are
more properly dealt with in a separate legislation (Henry v. Edwards, La, 346, So 2d 153). Restrictions or conditions
in an Appropriations Bill must exhibit a connection with money items in a budgetary sense in the schedule of
expenditures. Again, the test is appropriateness.
“It is not enough that a provision be related to the institution or agency to which funds are appropriated.
Conditions and limitations properly included in an appropriation bill must exhibit such a connexity with
money items of appropriation that they logically belong in a schedule of expenditures . . . the ultimate test
is one of appropriateness” (Henry v. Edwards, supra, at 158).
Tested by these criteria, Section 55 (FY ‘89) and Section 16 (FY ‘90) must also be held to be inappropriate
“conditions.”While they, particularly, Section 16 (FY ‘90), have been “artfully drafted” to appear as true conditions
or limitations, they are actually general law measures more appropriate for substantive and, therefore, separate
legislation.
Further, neither of them shows the necessary connection with a schedule of expenditures. The reason, as
explained earlier, is that items reduced or disapproved by Congress would not appear on the face of the enrolled bill
or Appropriations Act itself. They can only be detected when compared with the original budgetary submittals of the
President. In fact, Sections 55 (FY ‘89) and 16 (FY ‘90) themselves provide that an item “shall be deemed to have
been disapproved by Congress if no corresponding appropriation for the specific purpose is provided in this Act.”
Considering that the vetoed provisions are not, in the budgetary sense of the term, conditions or restrictions, the
case of Bolinao Electronics Corporation v. Valencia (supra), invoked by petitioners, becomes inapplicable. In that
case, a public works bill contained an item appropriating a certain sum for assistance to television stations, subject to
the condition that the amount would not be available to places where there were commercial television stations.
Then President Macapagal approved the appropriation but vetoed the condition. When challenged before this Court,
it was held that the veto was
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0 ANNOTATED
ineffectual and that the approval of the item carried with it the approval of the condition attached to it. In contrast
with the case at bar, there is no condition, in the budgetary sense of the term, attached to an appropriation or item in
the appropriation bill which was struck out. For obviously, Sections 55 (FY ‘89) and 16 (FY ‘90) partake more of a
curtailment on the power to augment from savings; in other words, “a general provision of law, which happens to be
put in an appropriation bill” (Bengzon v. Secretary of Justice, supra).
The Power of Augmentation and The Validity of the Veto
The President promptly vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90) because they nullify the authority of the
Chief Executive and heads of different branches of government to augment any item in the General Appropriations
Law for their respective offices from savings in other items of their respective appropriations, as guaranteed by
Article VI, Section 25 (5) of the Constitution. Said provision reads:
“Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations; however, the President,
the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other items of their respective
appropriations” (Italics ours).
Noteworthy is the fact that the power to augment from savings lies dormant until authorized by law.
This Court upheld the validity of the power of augmentation from savings in Demetria v. Alba, which ruled:
“x x x to afford the heads of the different branches of the government and those of the constitutional
commissions considerable flexibility in the use of public funds and resources, the constitution allowed the
enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings
in another item in the appropriation of the government branch or constitutional body concerned. The
leeway granted was thus limited. The purpose and conditions for which funds may be transferred were
specified, i.e., transfer
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VOL. 191, NOVEMBER 19, 1990 471
may be allowed for the purpose of augmenting an item and such transfer may be made only if there are
savings from another item in the appropriation of the government branch or constitutional body” (G.R.
No. 71977, 27 February 1987, 148 SCRA 214).
The 1973 Constitution contained an identical authority to augment from savings in its Article VIII, Section 16 (5),
except for mention of the Prime Minister among the officials vested with that power. 1
In 1977, the statutory authority of the President to augment any appropriation of the executive department in the
General Appropriations Act from savings was specifically provided for in Section 44 of Presidential Decree No.
1177, as amended (RA 6670, 4 August 1988), otherwise known as the “Budget Reform Decree of 1977.” It reads:
“Sec. 44. x x x
“The President shall, likewise, have the authority to augment any appropriation of the Executive
Department in the General Appropriations Act, from savings in the appropriations of another department,
bureau, office or agency within the Executive Branch, pursuant to the provisions of Art. VIII, Sec. 16 (5)
of the Constitution (now Sec. 25 (5), Art. VI)” (Emphasis ours), (N.B.: The first paragraph declared void
in Demetria v. Alba, supra, has been deleted).
Similarly, the use by the President of savings to cover deficits is specifically authorized in the same Decree. Thus:
“Sec. 45. Authority to Use Savings in Appropriations to Cover Deficits. Except as otherwise provided in
the General Appropriations Act, any savings in the regular appropriations authorized in the General
Appropriations Act for programs and projects of any department, office or agency, may, with the
approval of the President be used to cover a deficit in any other item of the regular appropriations:” x x x
_______________
Sec. 16 (5)—No law shall be passed authorizing any transfer of appropriations; however, the President, the Prime
1
Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may by law
be authorized to augment any item in the general appropriations law for their respective offices from savings in other items
of their respective appropriations.
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2 ANNOTATED
A more recent grant is found in Section 12 of the General Appropriations Act of 1989, the text of which is repeated
in the first paragraph of Section 16 (FY ‘90). Section 12 reads:
“Sec. 12. Use of Savings.—The President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the heads of the Constitutional Commissions,
and the Ombudsman are hereby authorized to augment any item in this Act for their respective offices
from savings in other items of their respective appropriations.”
There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads
of the different branches of the Government and those of the Constitutional Commissions are afforded considerable
flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is
in no way endangered because the transfer is made within a department (or branch of government) and not from one
department (branch) to another (CRUZ, Isagani A., Philippine Political Law [1989] p. 155).
When Sections 55 (FY ‘89) and 16 (FY ‘90), therefore, prohibit the restoration or increase by augmentation of
appropriations disapproved or reduced by Congress, they impair the constitutional and statutory authority of the
President and other key officials to augment any item or any appropriation from savings in the interest of
expediency and efficiency. The exercise of such authority in respect of disapproved or reduced items by no means
vests in the Executive the power to rewrite the entire budget, as petitioners contend, the leeway granted being
delimited to transfers within the department or branch concerned, the sourcing to come only from savings.
More importantly, it strikes us, too, that for such a special power as that of augmentation from savings, the same
is merely incorporated in the General Appropriations Bill. An Appropriations Bill is “one the primary and specific
aim of which is to make appropriation of money from the public treasury” (Bengzon v. Secretary of Justice, 292
U.S., 410, 57 S.Ct. 252). It is a legislative authorization of receipts and expenditures. The power of augmentation
from savings, on the other hand, can by no means be considered a specific appropriation of money. It is a
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VOL. 191, NOVEMBER 19, 1990 473
non-appropriation item inserted in an appropriation measure.
The same thing must be said of Section 55 (FY ‘89), taken in conjunction with Section 12, and Section 16 (FY
‘90), which prohibit the restoration or increase by augmentation of appropriations disapproved and/or reduced by
Congress. They are non-appropriation items, an appropriation being a setting apart by law of a certain sum from the
public revenue for a specific purpose (Bengzon v. Secretary of Justice, 62 Phil. 912, 916 [1936]). It bears repeating
that they are more of a substantive expression of a legislative objective to restrict the power of augmentation granted
to the President and other key officials. They are actually matters of general law and more properly the subject of a
separate legislation that will embody, define and delimit the scope of the special power of augmentation from
savings instead of being inappropriately incorporated annually in the Appropriation Act. To sanction this practice
would be to give the Legislature the freedom to grant or withhold the power from the Executive and other officials,
and thus put in yearly jeopardy the exercise of that power.
If, indeed, by the later enactments of Section 55 (FY ‘89) and Section 16 (FY ‘90), Congress, as petitioners
argue, intended to amend or repeal Pres. Decree No. 1177, with all the more reason should it have so provided in a
separate enactment, it being basic that implied repeals are not favored. For the same reason, we cannot subscribe to
petitioners’ allegation that Pres. Decree No. 1177 has been revoked by the 1987 Constitution. The 1987 Constitution
itself provides for the continuance of laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with the Constitution until amended, repealed, or revoked (1987 Constitution,
Article XVIII, Section 3).
If, indeed, the legislature believed that the exercise of the veto powers by the executive were unconstitutional,
the remedy laid down by the Constitution is crystal clear. A Presidential veto may be overriden by the votes of two-
thirds of members of Congress (1987 Constitution, Article VI, Section 27[1], supra). But Congress made no attempt
to override the Presidential veto. Petitioners’ argument that the veto is ineffectual so that there is “nothing to
override” (citing Bolinao) has lost force and effect with the executive veto having been herein upheld.
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4 ANNOTATED
As we see it, there need be no future conflict if the legislative and executive branches of government adhere to the
spirit of the Constitution, each exercising its respective powers with due deference to the constitutional
responsibilities and functions of the other. Thereby, the delicate equilibrium of governmental powers remains on
even keel.
WHEREFORE, the constitutionality of the assailed Presidential veto is UPHELD and this Petition is hereby
DISMISSED. No costs.
SO ORDERED.
Narvasa, Gancayco, Bidin, Sarmiento, Griño-Aquino, Me-dialdea and Regalado, JJ., concur.
Fernan (C.J.), No part. Formerly counsel for one petitioner and one respondent.
Gutierrez, Jr., and Cruz, JJ., Please see dissent.
Paras, J., I dissent for the reasons given by Justices Padilla, Cruz and Gutierrez, Jr.
Feliciano, J., On leave.
Padilla, J., See dissenting opinion.
GUTIERREZ, JR., J.: Dissenting Opinion
I regretfully dissent from the Court’s opinion in this case because fundamental principles underlying the doctrine of
separation of powers were violated when the President vetoed certain provisions of the 1989 and 1990
Appropriation Bills.
I am disturbed by the consequences of the Court’s act of legitimation, among them the following:
1. (1)The traditional power of Congress over the public purse is negated if functions or offices it has abolished
or reduced are restored through the grant of carte blanche authority to shift savings from one department
or agency to another. What the Court is sustaining is no longer augmentation within the purview of the
Constitution. It is already fund juggling against the express command of the body in whom fiscal power is
vested.
2. (2)The Court is, in effect, allowing a modified lump sum appropriation for the entire Executive Branch.
The Executive is annually given appropriations ranging from Two Hundred Billion Pesos to Two
Hundred Fifty Billion Pesos. Whenever the
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VOL. 191, NOVEMBER 19, 1990 475
1. President calls on all Departments to effect ten percent (10%) savings, compliance immediately follows.
There is thus a built in excess of Two Billion Pesos. This tremendous amount can now be used to finance
projects which Congress declares improvident or of low priority. Secretaries of executive departments can
thumb their noses at the legislature and, by asking for the President’s largesse, implement even that which
has been interdicted.
2. (3)The Constitution does not grant fiscal autonomy to the Executive Branch. There is no comparison
between the appropriations for the Judiciary and other constitutional offices on one hand and for the
Executive Branch on the other. There is reason to give flexibility in the use of funds for the Judiciary and
other constitutional creatures. However, tight congressional control over the way executive programs of
government are funded is part of a responsible presidential system of government.
3. (4)The power to augment is intended for functions, projects, and offices where both Congress and the
President expressly or impliedly concur, not where one specifically exercises its constitutional power to
regulate or modify the expenditures of the other. In the same way that Congress cannot increase the
budgetary proposals of the Executive, neither should the Executive restore that which Congress has
expressly abolished or reduced.
4. (5)The Constitution grants the President power to veto any particular item or items of an appropriation bill.
The Constitution withholds the power to veto provisions from the President. We are rewriting the
Constitution to restore what the framers have eliminated when we ignore the difference between
an item and a provision.
The Court is interpreting the power to augment under Section 25 (5), Article VI of the Constitution as a grant of near
untrammelled authority to shift savings from appropriated funds for functions and projects never intended by the
lawmakers to be funded and worse, for functions and projects which Congress has expressly stated should not be
beneficiaries of public funds for a specific year.
With a budget of over Two Hundred Billion Pesos (P200,000,000,000.00) annually given to the Executive
Depart-
476
6 ANNOTATED
ment, the implications of the Court’s ruling are extremely serious, to say the least. The Court’s interpretation of the
power of augmentation effectively corrodes the power of Congress over a function which by its nature is inherently
legislative. I don’t believe the Constitution ever intended to give carte blanche authority to the President to suppress
certain activities in the Executive Department already agreed upon with Congress and from the funds thus saved,
transfer various amounts to projects and offices which Congress declares must be abolished or reduced. Why not
simply give the President a lump sum allocation of P250 Billion and let it be spent as the Executive wills?
The raising of funds for the expenses of Government is a legislative prerogative. The legislative power also
determines through Appropriation Acts how the revenues collected shall be spent and for what purpose. Congress
alone has the power to give the President the necessary funds to implement Government programs. This vested
power of Congress over the financial affairs of Government underlies and colors all interpretations of budgetary
provisions and appropriation laws.
Because of the high profile of Malacañang in the disbursement of funds for public needs, people tend to forget
that it is only implementing the law as passed by Congress. The President has no power to enact or amend statutes,
most specifically appropriation statutes. The Executive merely proposes and submits recommendations. It is
Congress which decides. In the same way that Congress creates public offices, it can also abolish them whenever, in
its opinion, bona fide simplicity, economy, and efficiency would be achieved. By allowing the President through
augmentation to re-create public offices abolished or reduced by Congress, the Court is treading upon timetested
doctrines, the effects of which may, in the future, be regretted.
It is misleading for the respondents to tie up the President’s augmentation authority with the same authority
given to the Chief Justice and the heads of Constitutional Commissions. The Judiciary and these Commissions enjoy
fiscal autonomy. Their roles in the constitutional scheme call for independence and flexibility in the use of
appropriated funds. Most of their expenditures are fixed and recurring. The Department of Budget and Management
(DBM) prunes their requests for funds to the
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VOL. 191, NOVEMBER 19, 1990 477
bone such that when the budget is presented to Congress, there is nothing more to abolish or reduce. The Judiciary
and Commissions are usually neglected if not forgotten when the financial pie is sliced. Thus the Judiciary with
around 23,000 Justices, Judges, Clerks of Court, lawyers, and other supporting personnel is generally allocated a
miniscule one (1%) percent of the national budget by DBM proposals. In the aborted 1991 proposals, the percentage
was lowered to 00.67 percent or a little over one-half percent. Any savings are quite modest and usually result from
non-filling of judicial positions. The Constitutional Commissions have the same problems. The Court now validates
the free use of savings by the Executive against the express will of Congress. Since these could easily amount not to
one percent but to ten percent or more of the gargantuan budget for the Executive Branch, the implications are
extremely disturbing.
As for the power given to the Senate President and Speaker, it is Congress which enacts the law and the need for
augmentation is not really significant.
The same is not true for the President where the amount from which savings are generated is always beyond
P200 Billion. The argument that the leeway granted is delimited to transfers within the department or branch
overlooks the fact that almost the entire budget of the Government is eaten up by the Executive Branch. It is
relatively easy for the Office of the President, for example, to get P100 Million from funds allocated as assistance to
local governments or construction of major public works and augment another item anywhere in the entire
Executive Branch. This is indeed the power to rewrite the entire budget. It is not the legislative power over the
public purse which alone is denigrated. The power to fiscalize government expenses is equally diminished.
The constitutional history of the President’s item veto power shows that it should not be interpreted to include
the vetoing of provisions. It must be limited to items.
The 1935 Constitution granted the power to veto “provisions” provided the particular item or items to which the
provision relates are also vetoed.
The 1973 Constitution removed the power to veto “provisions.” The Chief Executive was given the power to
veto only
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8 ANNOTATED
“any particular item or items” in an appropriation, revenue, or tariff bill.
The 1987 Constitution follows the 1973 formula. The President may 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 majority opinion correctly concedes that the terms item and provision in budgetary legislation and practice
are different.
If that is so, I fail to see how we can rule that the power of the President under the 1935 Constitution to veto
“provisions” remains even if it was expressly eliminated from both the 1973 and 1987 Constitutions. Where the
Constitution says “items,” the veto power must be limited to “items.” It cannot include “provisions” which was
expressly stricken out.
As a general rule, laws passed by Congress can be vetoed by the President only in their entirety or none at all.
She cannot select provisions and sections she does not like and veto them while approving the rest of the statute. The
Constitution allows a limited power of veto only when it comes to appropriation, revenue or tariff bills. The power is
limited to items. It should not be interpreted by this Court to mean the expanded power to also veto “provisions.”
To state it in another way, the President may veto a distinct and severable part of a bill only—(1) if that
severable part is an item and not a provision, and (2) if that severable part belongs to an appropriation, revenue or
tariff bill. All other bills must be vetoed in their entirety.
Regarding the citation from Bengzon v. Secretary of Justice (299 U.S. 410, 414 [1936]) for a liberal
construction, the veto power is interpreted in favor of validity only when it is limited to the items it covers. No
amount of liberal interpretation, for instance, can allow the President to veto any item, part, or section of a bill which
has nothing to do with appropriations, revenues, or tariffs.
I must emphasize that the provisions vetoed by the President are not inappropriate and definitely are not riders.
There can be no dispute that Congress has the power to reduce the budgetary proposals prepared by the
Executive.
If Congress abolishes, removes, or reduces a project, function,
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VOL. 191, NOVEMBER 19, 1990 479
or activity by cutting the funds proposed for it, a provision enforcing that abolition, removal, or reduction is
appropriate and germane to the part thus stricken out. It would be absurd to require that it should appear in separate
legislation.
A rider is a provision which is alien to the bill to which it is attached. An example is the Spooner Amendment
which transfered government powers over the Philippines in 1901 from the military to the civil government, from
the Executive to Congress. This section had nothing to do with the Army Appropriation Bill in which it was
included. On the other hand, the vetoed provisions in the instant case specifically refer to appropriations which were
disapproved or reduced in those very same bills.
In fact, the vetoed provisions of the 1989 and 1990 Appropriation Acts are not only germane to these Acts but
are precisely authorized under Section 25 (5) of Article VI of the Constitution. Under Section 25 (5), the President,
Senate President, Speaker, Chief Justice and heads of Constitutional Commissions are by law authorized to augment
items in the general appropriations law for their respective offices from savings in other items. As stated by the
majority opinion, the power to augment from savings lies dormant until authorized by law. When Congress
exercises that dormant power and by law authorizes these officials to augment items, certainly it has the power to
also state what items may not be augmented. I fail to see how the exercise of this power can be termed an
inappropriate rider.
The grant of the power to augment includes the authority to specify what matters are not part of the granted
power. I cannot agree that the 1977 authority to augment appropriations from savings can prevail over 1989 and
1990 provisions to the contrary. The 1989 grant of the power to augment in Section 12 of the 1989 Appropriations
Acts is necessarily circumscribed by the withholding of that power in the provisions illegally vetoed. One part
cannot remain if a related part is vetoed.
In closing, I repeat that the Court’s opinion allows the President to denigrate and render ineffective a clear and
positive expression of legislative policy on how the funds of Government shall be spent. Where Congress expressly
states that our limited funds should not be spent on a particular function or office, we should not give the President
the power to appropriate
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0 ANNOTATED
through transfers of funds the money to maintain the abolished or greatly reduced function or office. The power of
augmentation is intended to save programs or projects agreed upon by both the President and Congress where the
funds allocated turn out to be inadequate. It was never conceived to render inutile the legislative power over the
purse. The power to determine how public funds should be spent should remain lodged where it rightfully belongs.
CRUZ, J., Dissenting:
Mme. Justice Herrera has written another opinion that commends itself for its logic and lucidity. Regrettably, there
are certain conclusions in the ponencia that I cannot share.
In justifying her veto, the President says that “the provision violates section 25(5) of Article VI of the
Constitution,” as if to suggest that she derives her power of augmentation directly from this section. She does not, of
course. This is not a self-executing provision. The said section states that she and the other officials mentioned
therein “may, by law, be authorized to augment any item in the general appropriations law for their respective
offices. . .” This means she needs statutory authority before she can augment.
The President says nevertheless that she has that authority and points to Section 44 of PD No. 1177, otherwise
known as the Budget Reform Decree of 1977, as amended. Significantly, the provision she invokes is precisely the
section modified by Congress in the General Appropriations Act of 1989 (and also of 1990). In vetoing Section 55
of that law, the President is in effect saying that the authorization earlier given her cannot be revoked.
The authority to augment is not such an extraordinary endowment that, once given, becomes sacrosanct and
irrevocable. What the Legislature has conferred in its discretion, it can also recall in the exercise of that same
discretion. The only exception I know to the principle that Congress cannot pass irrepealable laws is the impairment
clause, and even that is fast losing ground.
I am not persuaded that Section 55 of the General Appropriations Law of 1989 is a rider as contended by the
respondents. A
481
VOL. 191, NOVEMBER 19, 1990 481
rider is a provision not germane to the subject or purpose of the bill where it is included, Section 55 is not irrelevant
to the General Appropriations Act of 1989 as it deals, quite obviously, with appropriations. Its purpose is in fact to
limit the powers of the President in the disposition of the funds appropriated in that measure.
I suggest it is Section 44 of the Budget Reform Decree and not Section 55 of the General Appropriations Act of
1989 that is the rider. Section 44 is extraneous to the subject and purpose of PD No. 1177, which deals only with
“the form, content and manner of preparation of the budget” that are required to “be prescribed by law” under
Article VI, Sec. 25(1) of the Constitution. The budget is only a recommendation of appropriations, not the
appropriation itself. The authority to augment given by Section 44 of PD No. 1177 belongs in the General
Appropriations Act and has no place in the Budget Reform Decree.
The ponencia says that to sanction the inclusion of Section 55 in the General Appropriations Act “would be to
give the Legislature the freedom to grant or withhold the power from the Executive and other officials and thus put
in yearly jeopardy the exercise of that power” to augment. I respectfully submit that the freedom is not ours to give.
It was vested in Congress by the Constitution itself, and we ourselves have no authority to grant or withhold it.
It is needless to debate whatever distinction there may be between the item and the provision. The important
consideration is that, whatever its nature, Section 55 of the General Appropriations Act cannot be vetoed in any case
because it seeks to withdraw a delegated power.
The power of the purse belongs to Congress and has been traditionally recognized in the constitutional provision
that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The transfer
of funds from one item to another in the General Appropriations Act is part of that power, except that the
Constitution allows Congress to delegate it by law to the President, the Senate President, the Speaker of the House
of Representatives, the Chief Justice and the heads of the Constitutional Commissions. When exercising this
authority, the aforementioned officials act not by virtue of their own competence but only as agents of Congress.
482
2 ANNOTATED
There should be no question that the agency conferred on these officials can be revoked by Congress at any time and
for any reason it sees fit. The delegates cannot challenge this withdrawal and insist on holding on to the
authorization that the legislature had the discretion to withhold from them in the first place. The authority to
augment involves the element of confidence. Should Congress choose to withdraw it, a becoming respect for the
doctrine of separation of powers, if not anything else, should persuade the delegates to yield to the wish of the
principal.
The challenge to the validity of Section 55 is to me plain quibbling. To argue that no recall has been made is to
ignore the obvious. What matters is the intention of Congress, which should be clear enough if only the respondents
would not muddy the waters. The plain and unmistakable intention of Congress is to withdraw from the President,
for its own reasons, the delegated power to augment.
The following observations in the Emergency Power Cases, 92 Phil. 603, are appropriate:
Although House Bill No. 727 had been vetoed by the President and did not thereby become a regular
statute, it may at least be considered as a concurrent resolution of the Congress formally declaring the
termination of the emergency powers. To contend that the Bill needed presidential acquiescence to
produce effect would lead to the anomalous, if not absurd, situation that, while Congress might delegate
its powers by a simple majority, it might not be able to recall them except by two-thirds vote. In other
words, it would be easier for Congress to delegate its powers than to take them back. This is not right and
is not, and ought not, to be the law.
I think it would have been more characteristic of the President if she had graciously respected the will of the
Legislature and so again recognized her role in the constitutional scheme of the Republic.
PADILLA, J.: Dissenting Opinion
I dissent mainly for two (2) reasons:

First: the questioned veto has no constitutional basis.
Article VI, Section 27 of the 1987 Constitution provides:
483
VOL. 191, NOVEMBER 19, 1990 483
“Sec. 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become
a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the
Members voting for or against shall be entered in its Journals. The President shall communicate his veto
of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise,
it shall become a law as if he had signed it.
(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.”
Section 27 (1) refers to a general veto where the President objects to an entire bill approved by Congress and returns
it to Congress for its reconsideration. The situation at bar is admittedly not a general veto of the appropriation acts
for 1989 and 1990, Section 27 (1) does not, therefore, apply.
The majority opinion positions the veto questioned in this case within the scope of Section 27 (2) above-quoted.
I do not see how this can be done without doing violence to the constitutional design. The distinction between
an item-veto and a provision-veto has been traditionally recognized in constitutional litigation and budgetary
practice. As stated by Mr. Justice Sutherland, speaking for the U.S. Supreme Court in Bengzon vs. Secretary of
Justice, 299 U.S. 410-416:
“x x x. An item of an appropriation bill obviously means an item which in itself is a specific appropriation
of money, not some general provisions of law which happens to be put into an appropriation bill. x x x.”
When the Constitution in Section 27 (2) empowers the President to veto any particular item or items in the
appropriation act, it does not confer—in fact, it excludes—the power to veto any particular
provision or provisions in said act.
484
4 ANNOTATED
In an earlier case, Sarmiento vs. Mison, et al., 156 SCRA 549, this Court referred to its duty to construe the
Constitution, not in accordance with how the executive or the legislative would want it construed, but in accordance
with what it says and provides. When the Constitution states that the President has the power to veto any particular
item or items in the appropriation act, this must be taken as a component of that delicate balance of power between
the executive and the legislative, so that, for this Court to construe Sec. 27 (2) of the Constitution as also
empowering the President to veto any particular provision or provisions in the appropriation act, is to load the scale
in favor of the executive, at the expense of that delicate balance of power.
Stated differently, to stretch the power of the President to veto any item in the appropriation act so as to include
the power to veto any particular provision in the same act, without any conclusive indication that the same was the
intent of the constitutional framers and the people who adopted the 1987 Constitution, is for the Court to indulge in
spatial constitutional aerobics simply to justify what, to my mind, is an indefensible presidential veto.
Second: Section 55 (FY 1989) and Section 16 (FY 1990) are founded on principles of sound reason and public
policy; the attempt to “veto” them is a grave abuse of discretion amounting to lack or excess of jurisdiction.
To begin with, Article VI, Section 25, par. 5 of the 1987 Constitution provides:
“(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other items of their respective
appropriations.”
It will be at once noted that the fundamental policy of the Constitution is against transfer of appropriations even by
law, since this “juggling” of funds is often a rich source of unbridled patronage, abuse and interminable corruption.
485
VOL. 191, NOVEMBER 19, 1990 485
However, the same provision allows the enactment of a law that would authorize the President of the Philippines,
the President of the Senate, the Speaker of the House, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions to augment from savings realized from any appropriations for their respective offices,
any other item of appropriation also for their offices. In accordance with this Constitutional leave, Section 12 of the
appropriation act of 1989 (also Section 16 (1st part) of the appropriation act of 1990) provides:
“Sec. 12. Use of Savings.—The President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of the Constitutional Commissions,
and the Ombudsman are hereby authorized to augment any item in this Act for their respective offices
from savings in other items of their respective appropriations.”
Thus, a transfer from savings is allowed to augment any appropriation pertaining to the office which effects the
savings.
And yet, Congress as the appropriating and funding department of the Government has seen fit to place a
condition or a qualification in the authority to augment, from savings, any appropriation in the offices concerned. It
requires that no such-savings can be used to augment an appropriation previously disapproved by Congress or to
restore an appropriation previously reduced by Congress.
I can see no valid reason, in logic or in sound management, why such a condition can not be accepted. It only
makes certain that congressional action disapproving an appropriation or reducing the amount of an appropriation, is
not rendered inutile or meaningless by a transfer of savings in an appropriation to such other items already
disapproved or reduced by Congress.
It can hardly be disputed that the condition, restriction or qualification embodied in Sections 55 and 16, here
discussed, was enacted by Congress in the exercise of its legislative power to appropriate funds for government
operations. The exercise of that legislative power, in the first instance, should be accorded due respect and, as I see
it, the veto of the said condition is an undue encroachment by the executive on a properly exercised
486
6 ANNOTATED
legislative power. This Court, in delineating power boundaries between the different departments of government,
sadly expands, in this case, the bounds of an already too-powerful executive, at the expense of legislative
prerogative. The majority appear to have overlooked that the power to appropriate and set reasonable conditions
incidental thereto is a function entrusted by the Constitution in the legislature and only in the legislature.
In Bolinao vs. Valencia, G.R. No. L-20740, 30 June 1964, 11 SCRA 486, this Court already had occasion to
uphold a condition laid down by the legislative in an appropriation measure, to the extent of declaring a presidential
veto of such condition as illegal if made separately from the appropriation itself. This Court held:
“It may be observed from the wordings of the Appropriations Act that the amount appropriated for the
operation of the Philippine Broadcasting Service was made subject to the condition that the same shall not
be used or expended for operation of television stations in Luzon, where there are already existing
commercial television stations. This gives rise to the question of whether the President may legally veto a
condition attached to an appropriation or item in the appropriation bill. But this is not a novel question. A
little effort to research on the subject would have yielded enough authority to guide action on the matter.
For, in the leading case of State v. Holder, it was already declared that such action by the Chief Executive
was illegal. This ruling, that the executive’s veto power does not carry with it the power to strike out
conditions or restrictions, has been adhered to in subsequent cases. If the veto is unconstitutional, it
follows that the same produced no effect whatsoever, and the restriction imposed by the appropriation
bill, therefore, remains. Any expenditure made by the intervenor PBS, for the purpose of installing or
operating a television station in Manila, where there are already television stations in operation, would be
in violation of the express condition for the release of the appropriation and, consequently, null and void.
x x x.”
By clear analogy, the President could not veto Sections 55 (FY 1989) and 16 (FY 1990) as conditions, without
vetoing the items or appropriations which are affected by said conditions, meaning, the entire appropriation bills.
ACCORDINGLY, I vote to GRANT the petition and to declare the presidential veto of Section 55 (FY 1989)
and Section 16 (FY
487
VOL. 191, NOVEMBER 20, 1990 487
Guardex Enterprises vs. NLRC
1990) as null and void and of no effect whatsoever, for being clearly unconstitutional. It follows that Sections 55
(FY 1989) and 16 (FY 1990) remain as binding conditions in the disposition of savings in appropriations covered by
the appropriation acts for 1989 and 1990.
Petition dismissed.
April 21, 2009. G.R. No. 179271.*

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT),
petitioner, vs. COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), respondent.
ARTS BUSINESS AND SCIENCE PROFESSIONALS, intervenor.
AANGAT TAYO, intervenor.
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS),
intervenor.
_______________
* EN BANC.
211
APRIL 21, 2009 VOL. 586, 211
Barangay Association for National Advancement
and Transparency (BANAT) vs. Commission on
Elections
April 21, 2009. G.R. No. 179295.*
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND
HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and ABONO, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
Constitutional Law; Party-List System Act; In computing the allocation of additional seats, the
continued operation of the two percent threshold for the distribution of the additional seats as found in
the second clause of Section 11 (b) of R.A. No. 7941 is unconstitutional.—We rule that, in computing the
allocation of additional seats, the continued operation of the two percent threshold for the distribution of
the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible
to achieve the maximum number of available party list seats when the number of available party list seats
exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the House of
Representatives shall consist of party-list representatives.
Same; Same; The two percent threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the
broadest possible representation of party, sectoral or group interests in the House of Representatives.”—
We therefore strike down the two percent threshold only in relation to the distribution of the additional
seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents
an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and
prevents the attainment of “the broadest possible representation of party, sectoral or group interests in the
House of Representatives.”
Same; Same; Procedure in determining the allocation of seats for party-list representatives under
Section 11 of R.A. No. 7941.—In determining the allocation of seats for party-list representatives under
Section 11 of R.A. No. 7941, the following procedure shall be observed: 1. The parties, organizations,
and coalitions shall be
212

12 ANNOTATED
Barangay Association for National
Advancement and Transparency (BANAT) vs.
Commission on Elections
ranked from the highest to the lowest based on the number of votes they garnered during the
elections. 2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one guaranteed seat each. 3. Those garnering
sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in
proportion to their total number of votes until all the additional seats are allocated. 4. Each party,
organization, or coalition shall be entitled to not more than three (3) seats.
Same; Same; The remaining available seats for allocation as “additional seats” are the maximum
seats reserved under the Party List System less the guaranteed seats.—In computing the additional seats,
the guaranteed seats shall no longer be included because they have already been allocated, at one seat
each, to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are
the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.
Same; Same; Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system.—Neither the Constitution nor R.A. No. 7941 prohibits major
political parties from participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in party-list elections through their
sectoral wings.
Same; Same; By a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing
major political parties from participating in the party-list elections, directly or indirectly.—By a vote of
8-7, the Court decided to continue the ruling in Veteransdisallowing major political parties from
participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing
major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate
opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with
this ponencia.213
APRIL 21, 2009 VOL. 586, 21

3
PUNO,C.J., Concurring and Dissenting Opinion:
Constitutional Law; Party List System; Same; Limiting the party-list system to the marginalized and
excluding the major political parties from participating in the election of their representatives is aligned
with the constitutional mandate to reduce social, economic and political inequalities and remove cultural
inequalities by equitably diffusing wealth and political power for the common good etc.—The
harmonization of Article VI, Section 5 with related constitutional provisions will better reveal the intent
of the people as regards the party-list system. Thus, under Section 7 of the Transitory Provisions, the
President was permitted to fill by appointment the seats reserved for sectoral representation under the
party-list system from a list of nominees submitted by the respective sectors. This was the result of
historical precedents that saw how the elected Members of the interim Batasang Pambansa and the
regular Batasang Pambansatried to torpedo sectoral representation and delay the seating of sectoral
representatives on the ground that they could not rise to the same levelled status of dignity as those
elected by the people. To avoid this bias against sectoral representatives, the President was given all the
leeway to “break new ground and precisely plant the seeds for sectoral representation so that the sectoral
representatives will take roots and be part and parcel exactly of the process of drafting the law which will
stipulate and provide for the concept of sectoral representation.” Similarly, limiting the party-list system
to the marginalized and excluding the major political parties from participating in the election of their
representatives is aligned with the constitutional mandate to “reduce social, economic, and political
inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the
common good”; the right of the people and their organizations to effective and reasonable participation at
all levels of social, political, and economic decision-making; the right of women to opportunities that will
enhance their welfare and enable them to realize their full potential in the service of the nation; the right
of labor to participate in policy and decision-making processes affecting their rights and benefits in
keeping with its role as a primary social economic force; the right of teachers to professional
advancement; the rights of indigenous cultural communities to the consideration of their cultures,
traditions and institutions in the formulation of national plans and policies, and the indispensable role of
the private sector in the national economy.214

14 ANNOTATED
Same; Same; If we allow major political parties to participate in the party-list system electoral
process, we will surely suffocate the voice of the marginalized, frustrate their sovereignty and betray the
democratic spirit of the Constitution.—The evils that faced our marginalized and underrepresented
people at the time of the framing of the 1987 Constitution still haunt them today. It is through the party-
list system that the Constitution sought to address this systemic dilemma. In ratifying the Constitution,
our people recognized how the interests of our poor and powerless sectoral groups can be frustrated by
the traditional political parties who have the machinery and chicanery to dominate our political
institutions. If we allow major political parties to participate in the party-list system electoral process, we
will surely suffocate the voice of the marginalized, frustrate their sovereignty and betray the democratic
spirit of the Constitution. That opinion will serve as the graveyard of the party-list system.
NACHURA,J., Separate Opinion:
Constitutional Law; Party List System; Section 5 (2), Article VI of the Constitution, is not
mandatory, it merely provides a ceiling for the number of party-list seats in Congress.—It is correct to
say, and I completely agree with Veterans Federation Party, that Section 5 (2), Article VI of the
Constitution, is not mandatory, that it merely provides a ceiling for the number of party-list seats in
Congress. But when the enabling law, R.A. 7941, enacted by Congress for the precise purpose of
implementing the constitutional provision, contains a condition that places the constitutional ceiling
completely beyond reach, totally impossible of realization, then we must strike down the offending
condition as an affront to the fundamental law. This is not simply an inquiry into the wisdom of the
legislative measure; rather it involves the duty of this Court to ensure that constitutional provisions
remain effective at all times. No rule of statutory construction can save a particular legislative enactment
that renders a constitutional provision inoperative and ineffectual.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Mandamus.
The facts are stated in the opinion of the Court.215
APRIL 21, 2009 VOL. 586, 215

Elections
S.B. Britanico, Lisaca & Associates Law Office for BANAT.
Neri Javier Colmenares for Bayan Muna, et al.
Romulo B. Macalintal and Edgardo Carlo L. Vistan II for petitioner-intervenor Estrella DL. Santos.
Amado D. Valdez for intervenors AANGAT TAYO and Senior Citizens.
Salacnib F. Baterina and Mark L. Perete for petitioner-intervenor Arts Business & Science Professionals.
Godofredo V. Arquiza for intervenor Coalition of Associations of Senior Citizens in the Philippines.
CARPIO,J.:
The Case
Petitioner in G.R. No. 179271—Barangay Association for National Advancement and Transparency (BANAT)
—in a petition for certiorari and mandamus, 1 assails the Resolution2 promulgated on 3 August 2007 by the
Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELEC’s resolution in NBC No. 07-041
(PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC)
Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting
as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution.
_______________
1 Under Rule 65 of the 1997 Rules of Civil Procedure.

2 Rollo (G.R. No. 179271), pp. 86-87. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners Resurreccion Z.
Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer.
216
ANNOTATED
Elections
The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat
Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).
Petitioners in G.R. No. 179295—Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through
Action, Cooperation and Harmony Towards Educational Reforms (A Teacher)—in a petition for certiorari with
mandamus and prohibition,3 assails NBC Resolution No. 07-604promulgated on 9 July 2007. NBC No. 07-60 made a
partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast
under the Party-List System. The COMELEC announced that, upon completion of the canvass of the party-list
results, it would determine the total number of seats of each winning party, organization, or coalition in accordance
with Veterans Federation Party v. COMELEC5 (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a
motion to intervene in both G.R. Nos. 179271 and 179295.
The Facts
The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted
15,950,900 votes cast for 93 parties under the Party-List System.6
_______________
3 Under Rule 65 of the 1997 RULES OF CIVIL PROCEDURE.

4 Rollo (G.R. No. 179295), pp. 103-108. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners Resurreccion
Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer.
5 396 Phil. 419; 342 SCRA 244 (2000).
6 Rollo (G.R. No. 179271), pp. 969-986; Rollo (G.R. No. 179295), pp. 798-815. Party-List Canvass Report No. 32, as
of 31 August 2007, 6:00 p.m.
217
APRIL 21, 2009 VOL. 586, 217
Elections
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided
by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because “[t]he
Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the
[COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula
in allocating party-list seats.”7 There were no intervenors in BANAT’s petition before the NBC. BANAT filed a
memorandum on 19 July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution
No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong
(BUHAY), Bayan Muna, Citizens’ Battle Against Corruption (CIBAC), Gabriela’s Women Party (Gabriela),
Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party
(AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak
Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below:
“WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its
Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public
proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine
(15,283,659)votes under the Party-List System of Representation, in connection with the National and
Local Elections conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of
Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen
million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the
following statistical data:
_______________
7 Rollo (G.R. No. 179271), p. 70.
218

ANNOTATED
Elections
Projected/Maximum Party-List Votes for May 2007 Elections
Total party-list votes already 15,283,659

canvassed/tabulated i.
Total party-list votes remaining 1,337,032
uncanvassed/ untabulated (
ii.i.e. canvass deferred)
Maximum party-list votes (based on 102,430
100% outcome) from areas not yet
submitted for canvass (Bogo, Cebu; Bais
City; Pantar, Lanao del Norte; and
Pagalungan, Maguindanao) iii.
Maximum Total Party-List Votes 16,723,121
WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:
The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one seat each: provided, that those garnering more
than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not
more than three (3) seats.
WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four
hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC,
reiterated its ruling inVeterans Federation Party versus COMELEC adopting a formula for the additional
seats of each party, organization or coalition receving more than the required two percent (2%) votes,
stating that the same shall be determined only after all party-list ballots have been completely canvassed;
WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three
hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows:
219
APRIL 21, 2009 VOL. 586, 21
9
Elections
RAN PARTY/ORGANIZATI VOTES
K ON/ RECEIVE
COALITION D
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL 405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
14 ABONO 337,046
WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),
against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION
AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining
Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations
and coalitions included in the aforementioned list are therefore entitled to at least one seat under the
party-list system of representation in the meantime.
NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election
Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the
Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to
PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, or-
220

ANNOTATED
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ganizations and coalitions participating under the Party-List System:
1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN
MUNA
3 Citizens Battle Against CIBAC
Corruption
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine APEC
Electric Cooperatives
6 Advocacy for Teacher A TEACHER
Empowerment Through Action,
Cooperation and Harmony
Towards Educational Reforms,
Inc.
7 Akbayan! Citizen’s Action AKBAYAN
Party
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
1 Cooperative-Natco Network COOP-
0 Party NATCCO
1 Anak Pawis ANAKPAWIS
1
1 Alliance of Rural Concerns ARC
2
1 Abono ABONO
3

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may
later on be established to have obtained at least two percent (2%) of the total actual votes cast under the
Party-List System.
The total number of seats of each winning party, organization or coalition shall be determined
pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the
party-list results.
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is
hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein
moot and academic.221
APRIL 21, 2009 VOL. 586, 221

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Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance until final resolution of their respective cases.
Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker
of the House of Representatives of the Philippines.
SO ORDERED.” (Emphasis in the original)
8

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-
72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELEC’s
interpretation of the Veterans formula as found in NBC Resolution No. 07-72:
“WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of
Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the
presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of
party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of
Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually
canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and
maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum
total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows:
Party-List Projected total number

of votes
1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964

_______________
8 Rollo (G.R. No. 179271), pp. 88-92.

222
ANNOTATED
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4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP- 412,920
NATCO
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151
WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest
number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the
“first party” in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizen’s
Battle Against Corruption (CIBAC) versus COMELEC;
WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of
representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats
based on the formula prescribed by the Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the “first party,” the correct formula as expressed
in Veterans, is:
Number of votes of first party Proportion of votes of first
- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system
wherein the proportion of votes received by the first party (without rounding off) shall entitle it to
additional seats:
223
APRIL 21, 2009 VOL. 586, 223
Elections
Proportion of votes Additional seats
received
by the first party
Equal to or at least 6% Two (2) additional
seats
Equal to or greater than 4% One (1) additional
but less than 6% seat
Less than 4% No additional seat
WHEREAS, applying the above formula, Buhay obtained the following percentage:
1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369
which entitles it to two (2) additional seats.
WHEREAS, in determining the additional seats for the other qualified parties, organizations and
coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows:
No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party
WHEREAS, applying the above formula, the results are as follows:
Party List Percentage Additional Seat

BAYAN MUNA 1.65 1
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0

224
224 SUPREME COURT
REPORTS ANNOTATED
Elections
ALAGAD 0.71 0
BUTIL 0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0
NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code,
Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission
on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby
RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats,
to wit:
Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1
This is without prejudice to the proclamation of other parties, organizations or coalitions which may
later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-
list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle
them to one (1) additional seat.
Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance until final resolution of their respective cases. 225
APRIL 21, 2009 VOL. 586, 225

Elections
Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof
to the Speaker of the House of Representatives of the Philippines.
SO ORDERED” 9
Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads
as follows:
This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by
the Constitution filed by the Barangay Association for National Advancement and Transparency
(BANAT).
Acting on the foregoing Petition of the Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal
Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which
reads:
COMMENTS / OBSERVATIONS:
Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its
Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution
prayed for the following reliefs, to wit:
That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by
Section 5, Article VI of the Constitution shall be proclaimed. 1.
Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be
harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941
in that it should be applicable only to the first party-list representative seats to be allotted on the
basis of their initial/first ranking. 2.
The 3-seat limit prescribed by RA 7941 shall be applied; and 3.
_______________
9 Id., at pp. 150-153.
226

ANNOTATED
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Initially, all party-list groups shall be given the number of seats corresponding to every 2% of
the votes they received and the additional seats shall be allocated in accordance with Section 12 of
RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in
relation to the total nationwide votes cast in the party-list election, after deducting the corresponding
votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the “ALLOCATION OF PARTY-LIST SEATS, ANNEX “A” of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many
seats shall be proclaimed, which party-list groups are entitled to representative seats and how many
of their nominees shall seat [sic]. 4.
In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that
the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941
shall be followed. 5.
RECOMMENDATION:
The petition of BANAT is now moot and academic.
The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re “In the
Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and
Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local
Elections” resolved among others that the total number of seats of each winning party, organization
or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC
formula upon completion of the canvass of the party-list results.”
WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby
RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal
Group, to DENY the herein petition of BANAT for being moot and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.” 10
_______________
10 Id., at pp. 86-87.

227
APRIL 21, 2009 VOL. 586, 227
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BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT
did not file a motion for reconsideration of NBC Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its
decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is
violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC
denied reconsideration during the proceedings of the NBC.11
Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three
other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System:
Agricultural Sector Alliance of the Philippines, Inc. (AGAP), 12 Anak Mindanao (AMIN),13 and An Waray.14Per the
certification15 by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008:
Party-List No. of Seat(s)
1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1

_______________
11 Rollo (G.R. No. 179295), p. 112.

12 Rollo (G.R. No. 179271), pp. 158-159. NBC Resolution No. 07-74, 24 July 2007.
13 Id., at pp. 160-161. NBC Resolution No. 07-87, 3 August 2007.
14 NBC Resolution No. 07-97, 4 September 2007.
15 Rollo (G.R. No. 179295), pp. 816-817. This COMELEC certification should have included An Waray, which was
proclaimed on 4 September 2007 under NBC Resolution No. 07-97.
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ANNOTATED
Elections
1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.10 Coop- 1
Natco [sic]
1.11 Anak 1
Pawis
1.12 ARC 1
1.13 Abono 1
1.14 AGAP 1
1.15 AMIN 1
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an
Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer
for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution
of SPC No. 07-250.
Issues
BANAT brought the following issues before this Court:

Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of
the Constitution mandatory or is it merely a ceiling? 1.
Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 2.
Is the two percent threshold and “qualifier” votes prescribed by the same Section 11(b) of RA 7941
constitutional? 3.
How shall the party-list representatives be allocated? 4. 16
Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition:
_______________
16 Rollo (G.R. No. 179271), p. 14.

229
APRIL 21, 2009 VOL. 586, 229
Elections
I. Respondent Commission on Elections, acting as National Board of Canvassers, committed
grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated
NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to
qualified party-list organizations as said rule:
Violates the constitutional principle of proportional representation. A.
Violates the provisions of RA 7941 particularly: B.
The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the “First
Party” violates the principle of proportional representation under RA 7941. 1.
The use of two formulas in the allocation of additional seats, one for the “First Party” and
another for the qualifying parties, violates Section 11(b) of RA 7941. 2.
The proportional relationships under the First Party Rule are different from those required
under RA 7941; 3.
Violates the “Four Inviolable Parameters” of the Philippine party-list system as provided for
under the same case of C. Veterans Federation Party, et al. v. COMELEC.
Presuming that the Commission on Elections did not commit grave II. abuse of discretion
amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the
allocation of seats to qualified party-list organizations, the same being merely in consonance
with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a
justiciable case as the issues involved herein are constitutional in nature, involving the correct
interpretation and implementation of RA 7941, and are of transcendental importance to our
nation.17
Considering the allegations in the petitions and the comments of the parties in these cases, we defined the
following
_______________
17 Rollo (G.R. No. 179295), pp. 21-22.

230
ANNOTATED
Elections
issues in our advisory for the oral arguments set on 22 April 2008:
Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling? 1.
.Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 2
Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat
constitutional? 3.
How shall the party-list representative seats be allocated? 4.
Does the Constitution prohibit the major political parties from participating in the party-list
elections? If not, can the major political parties be barred from participating in the party-list
elections? 5.18
The Ruling of the Court
The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four
inviolable parameters as clearly stated in Veterans. For easy reference, these are:
First, the twenty percent allocation—the combined number of all party-list congressmen shall not
exceed twenty percent of the total membership of the House of Representatives, including those elected
under the party list;
Second, the two percent threshold—only those parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are “qualified” to have a seat in the House of
Representatives;
Third, the three-seat limit—each qualified party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that is, one “qualifying” and two additional seats;
_______________
18 Rollo (G.R. No. 179271), p. 553; Rollo (G. R. No. 179295), p. 341.
231
APRIL 21, 2009 VOL. 586, 231

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Fourth, proportional representation—the additional seats which a qualified party is entitled to shall
be computed “in proportion to their total number of votes.” 19
However, because the formula in Veterans has flaws in its mathematical interpretation of the term “proportional
representation,” this Court is compelled to revisit the formula for the allocation of additional seats to party-list
organizations.
Number of Party-List Representatives:

The Formula Mandated by the Constitution
Section 5, Article VI of the Constitution provides:

(1) The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and 5. “Section the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of registered national, regional, and sectoral parties or
organizations.
The party-list representatives shall constitute twenty per centum of the total number of representatives
including those under the party-list. For three consecutive terms after the ratification of this Constitution,
one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector.” (2)
The first paragraph of Section 11 of R.A. No. 7941 reads:
11. “SectionNumber of Party-List Representatives.—The party-list representatives shall constitute
twenty per centum (20%) of the total number of the members of the House of Representatives including
those under the party-list.
x x x”
_______________
19 Supra note 5 at p. 424.
232
ANNOTATED
Elections
Section 5(1), Article VI of the Constitution states that the “House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by law.” The House of Representatives shall be
composed of district representatives and party-list representatives. The Constitution allows the legislature to modify
the number of the members of the House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the
total number of representatives. We compute the number of seats available to party-list representatives from the
number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus:
Number of seats x .20 Number of seats
available = available to
to legislative party-list
districts representatives
.80
This formula allows for the corresponding increase in the number of seats available for party-list representatives
whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district
representatives, there are 55 seats available to party-list representatives.
220 x .20 = 55
.80
After prescribing the ratio of the number of party-list representatives to the total number of
representatives, the Constitution left the manner of allocating the seats available to party-list representatives
to the wisdom of the legislature.233
APRIL 21, 2009 VOL. 586, 233
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Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent
Threshold and the Three-Seat Cap
All parties agree on the formula to determine the maximum number of seats reserved under the Party-List
System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-
percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941
on the allocation of “additional seats” under the Party-List System. Veterans produced the First Party Rule,20 and
Justice Vicente V. Men-
_______________

20 Id., at pp. 446-451. We quote below the discussion in Veterans explaining the First Party Rule:
Formula for Determining
Additional Seats for the First Party
Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a
party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to
receive twice the number of votes of the second party, it should be entitled to twice the latter’s number of seats and so on.
The formula, therefore, for computing the number of seats to which the first party is entitled is as follows:
Number of votes
of first party Proportion of votes of
-------------------- = first party relative to
Total votes for total votes for party-list system
party -list system
If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total
valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three
seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six
percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent,
then the first party shall not be entitled to any additional seat.
We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of
additional seats. Like-
234
ANNOTATED
Elections
doza’s dissent in Veterans presented Germany’s Niemeyer
_______________
wise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein
18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to
which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of
Representatives.
xxx
Note that the above formula will be applicable only in determining the number of additional seats the first party is
entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained
earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a
second party obtains six percent of the total number of votes cast. According to the above formula, the said party would be
entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher
amount of votes—say, twenty percent—to grant it the same number of seats as the second party would violate the
statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal
number of representatives as the one obtaining twenty percent. The proper solution, therefore, is to grant the first party a
total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party.
Formula for Additional
Seats of Other Qualified Parties
Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to,
based on proportional representation. The formula is encompassed by the following complex fraction:
No. of votes of
concerned party
------------------------
Total no. of votes
Additional seats for party-list system No. of additional
for concerned = --------------------------- seats allocated to
party No. of votes of the first party
235
APRIL 21, 2009 VOL. 586, 235
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formula21 as an alternative.
The Constitution left to Congress the determination of the manner of allocating the seats for party-list
representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which
provide:
11. SectionNumber of Party-List Representatives.—x x x
In determining the allocation of seats for the second vote, the following procedure shall be observed:
22
_______________
first party

----------------------
Total no. of votes
for party list system
In simplified form, it is written as follows:

No. of votes of
Additional seats concerned party No. of additional
x seats allocated to for concerned = -----------------------
party No. of votes of the first party
first party
xxx
Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other
party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other
qualified parties as well.
The above formula does not give an exact mathematical representation of the number of additional seats to be awarded
since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual
mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat,
rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining
absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An
increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate
proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within
such extant parameter.
21 Id., at pp. 475-481.
22 The second vote cast by a registered voter is for the party-list candidates as provided in Section 10 of R.A. No.
7941.
236
ANNOTATED
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The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the
number of votes they garnered during the elections. (a)
The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one seat each: (b) Provided, That those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not
more than three (3) seats.
12. SectionProcedure in Allocating Seats for Party-List Representatives.—The COMELEC shall
tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according
to the number of votes received and allocate party-list representatives proportionately according to the
percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes
cast for the party-list system.” (Emphasis supplied)
In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list
representative seats.
The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section
12 of R.A. No. 7941. BANAT described this procedure as follows:
The party-list representatives shall constitute twenty percent (20%) of the total Members of the House
of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the
Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996.
Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed. (a)
All party-list groups shall initially be allotted one (1) seat for every two (b) per centum (2%) of the
total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats
(Section 11, RA 7941).
The remaining seats shall, after deducting the seats obtained by the party-list groups under the
immediately preceding paragraph and after deducting from their total the votes correspond- (c)
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APRIL 21, 2009 VOL. 586, 237

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ing to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which
have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12
of RA 7941.” 23
Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation.
The second interpretation presented by BANAT assumes that the 2% vote requirement is declared
unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941.
BANAT states that the COMELEC:
shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (a)
rank them according to the number of votes received; and, (b)
allocate party-list representatives proportionately according to the percentage of votes obtained by
each party, organization or coalition as against the total nationwide votes cast for the party-list system.
(c)24
BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes
received by each party as against the total nationwide party-list votes, and the other is “by making the votes of a
party-list with a median percentage of votes as the divisor in computing the allocation of seats.” 25 Thirty-four (34)
party-list seats will be awarded under BANAT’s second interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s original 2-4-6 formula
and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that
both formulas do not factor in the total number of seats alloted for the entire
_______________
23 Rollo (G.R. No. 179271), p. 47.

24 Id., at p. 48.
25 Id., at p. 1076.
238
ANNOTATED
Elections
Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After
determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the
total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by
multiplying the total party-list seats available with the second percentage. There will be a first round of seat
allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned
party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The
fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the
basis of this ranking are allocated until all the seats are filled up.26
We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.
Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest
based on the number of votes they garnered during the elections.
Ranking of the participating parties from the highest to the lowest based on the number of votes garnered
during the elections. 1. Table 27
Ran Party Votes Ran Party Votes

k Garner k Garner
ed ed
1 BUHAY 1,169,2 48 KALAHI 88,868
34
2 BAYAN 49 APOI 79,386
MUNA 979,039
3 CIBAC 50 BP 78,541
755,686
4 GABRIE 51 AHONBAY 78,424
LA 621,171 AN

_______________
26 Rollo (G.R. No. 179295), pp. 66-81.

27 Rollo (G.R. No. 179271), pp. 969-974; Rollo (G.R. No. 179295), pp. 798-803. Party-List Canvass Report No. 32,
as of 31 August 2007, 6:00 p.m.
239
APRIL 21, 2009 VOL. 586, 23
9
Elections
5 APEC 5 BIGKIS 77,32
619,65 2 7
7
6 A TEACHER 5 PMAP 75,20
490,37 3 0
9
7 AKBAYAN 5 AKAPIN 74,68
466,11 4 6
2
8 ALAGAD 5 PBA 71,54
423,14 5 4
9
9 COOP- 5 GRECON 62,22
NATCCO 409,88 6 0
3
1 BUTIL 5 BTM 60,99
0 409,16 7 3
0
1 BATAS 5 A SMILE 58,71
1 385,81 8 7
0
1 ARC 5 NELFFI 57,87
2 374,28 9 2
8
1 ANAKPAWI 6 AKSA 57,01
3 S 370,26 0 2
1
1 ABONO 6 BAGO 55,84
4 339,99 1 6
0
1 AMIN 6 BANDIL 54,75
5 338,18 2 A 1
5
1 AGAP 6 AHON 54,52
6 328,72 3 2
4
1 AN WARAY 6 ASAHAN 51,72
7 321,50 4 MO 2
3
1 YACAP 6 AGBIAG! 50,83
8 310,88 5 7
9
1 FPJPM 6 SPI 50,47
9 300,92 6 8
3
2 UNI-MAD 6 BAHAND 46,61
0 245,38 7 I 2
2
2 ABS 6 ADD 45,62
1 235,08 8 4
6
2 KAKUSA 6 AMANG 43,06
2 228,99 9 2
9
2 KABATAAN 7 ABAY 42,28
3 228,63 0 PARAK 2
7
2 ABA-AKO 7 BABAE 36,51
4 218,81 1 KA 2
8
2 ALIF 7 SB 34,83
5 217,82 2 5
2
2 SENIOR 7 ASAP 34,09
6 CITIZENS 213,05 3 8
8
2 AT 7 PEP 33,93
7 197,87 4 8
2
2 VFP 7 ABA 33,90
8 196,26 5 ILONGG 3
6 O
2 ANAD 7 VENDOR 33,69
9 188,52 6 S 1
1
3 BANAT 7 ADD- 32,89
0 177,02 7 TRIBAL 6
8
3 ANG KA- 7 ALMANA 32,25
1 SANGGA 170,53 8 5
1
3 BANTAY 7 AANGAT 29,13
2 169,80 9 KA 0
1

240
ANNOTATED
Elections
PILIPINO
33 ABAKADA 166,74 8 AAPS 26,271
7 0
34 1-UTAK 164,98 8 HAPI 25,781
0 1
35 TUCP 162,64 8 AAWAS 22,946
7 2
36 COCOFED 155,92 8 SM 20,744
0 3
37 AGHAM 146,03 8 AG 16,916
2 4
38 ANAK 141,81 8 AGING 16,729
7 5 PINOY
39 ABANSE! 130,35 8 APO 16,421
PINAY 6 6
40 PM 119,05 8 BIYAYAN 16,241
4 7 G BUKID
41 AVE 110,76 8 ATS 14,161
9 8
42 SUARA 110,73 8 UMDJ 9,445
2 9
43 ASSALAM 110,44 9 BUKLOD 8,915
0 0 FILIPINA
44 DIWA 107,02 9 LYPAD 8,471
1 1
45 ANC 99,636 9 AA- 8,406
2 KASOSYO
46 SANLAKA 97,375 9 KASAPI 6,221
S 3
47 ABC 90,058 TOTAL 15,950,90
0
The first clause of Section 11(b) of R.A. No. 7941 states that “parties, organizations, and coalitions receiving at
least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each.” This clause
guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration
purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by
each party by 15,950,900, the total number of votes cast for all party-list candidates. 241
APRIL 21, 2009 VOL. 586, 241
Elections
The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for
the party-list. 2. Table 28
Ran Party Votes Votes Guara

k Garnere Garnere n-
d d over teed
Total Seat
Votes
for
Party-
List,
in %
1 BUHAY 1,169,23 7.33% 1
4
2 BAYAN 6.14% 1
MUNA 979,039
3 CIBAC 4.74% 1
755,686
Ran Party Votes Votes Guara
k Garnere Garnere n-
d d over teed
Total Seat
Votes
for
Party-
List,
in %
4 GABRIELA 3.89% 1
621,171
5 APEC 3.88% 1
619,657
6 A 3.07% 1
TEACHER 490,379
7 AKBAYAN 2.92% 1
466,112
8 ALAGAD 2.65% 1
423,149
9 COOP- 2.57% 1
NATCCO 409,883
10 BUTIL 2.57% 1
409,160
11 BATAS29 2.42% 1
385,810
12 ARC 2.35% 1
374,288
13 ANAKPAW 2.32% 1
IS 370,261
14 ABONO 2.13% 1
339,990
15 AMIN 2.12% 1
338,185
16 AGAP 2.06% 1
328,724
17 AN 2.02% 1
WARAY 321,503
Total 17
18 YACAP 1.95% 0
310,889
19 FPJPM 1.89% 0
300,923

_______________
28 Id.
29 Proclamation deferred by COMELEC.
242
ANNOTATED
Elections
20 UNI- 245,382 1.54% 0
MAD
From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of
votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list
candidates that are “entitled to one seat each,” or the guaranteed seat. In this first round of seat allocation, we
distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that “those garnering more than two percent (2%)
of the votes shall be entitled to additional seats in proportion to their total number of votes.” This is where
petitioners’ and intervenors’ problem with the formula in Veterans lies. Veterans interprets the clause “in proportion
to their total number of votes” to be in proportion to the votes of the first party. This interpretation is contrary to
the express language of R.A. No. 7941.
We rule that, in computing the allocation of additional seats, the continued operation of the two percent
threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve
the maximum number of available party list seats when the number of available party list seats exceeds 50. The
continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of
the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list
representatives.
To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100
participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a
guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat
despite the availability of 55
243
APRIL 21, 2009 VOL. 586, 243
Elections
seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the
available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the
maximum number of parties get two percent of the votes for every party, it is always impossible for the number of
occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.
We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted
obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the
broadest possible representation of party, sectoral or group interests in the House of Representatives.” 30
In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the
following procedure shall be observed:
The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the
number of votes they garnered during the elections. 1.
The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one guaranteed seat each. 2.
Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to
additional seats in proportion to their total number of votes until all the additional seats are allocated. 3.
Each party, organization, or coalition shall be entitled to not more than three (3) seats. 4.
_______________

30 Section 2, R.A. No. 7941.
244
ANNOTATED
Elections
In computing the additional seats, the guaranteed seats shall no longer be included because they have already
been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as
“additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional
seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in
Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by
dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list
candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List
System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of
the remaining available seats corresponds to a party’s share in the remaining available seats. Second, we assign one
party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all
of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the
number of seats each qualified party-list candidate is entitled. Thus:245
APRIL 21, 2009 VOL. 586, 245
Elections
Distribution of Available Party-List Seats 3. Table
Ran Party Votes Votes Gua- Addi- (B) Appl

k Garnere Garnere rantee tional plus y-
d d d Seat Seats (C), ing
over in the
Total whol three
Votes e seat
for inte- cap
Party gers
List,
in %
(First (Secon
Roun d
d) Round)
(A) (B) (C) (D) (E)
1 BUHAY 1,169,23 7.33% 1 2.79 3 N.A.
4
2 BAYAN 979,039 6.14% 1 2.33 3 N.A.
MUNA
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
Ran Party Votes Votes Gua- Addi- (B) Appl
k Garnere Garnere rantee tional plus y-
d d d Seat Seats (C), ing
over in the
Total whol three
Votes e seat
for inte- cap
Party gers
List,
in %
4 GABRIEL 621,171 3.89% 1 1.48 2 N.A.
A
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYA 466,112 2.92% 1 1.11 2 N.A.
N
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
931 COOP- 409,883 2.57% 1 1 2 N.A.
NATCCO
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAK 370,261 2.32% 1 1 2 N.A.
PAWIS
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN 321,503 2.02% 1 1 2 N.A.
WARAY

_______________
31 The product of the percentage and the remaining available seats of all parties ranked nine and below is less than
one.
246
ANNOTATED
Elections
18 YACAP 310,889 1.95% 0 1 1 N.A.

19 FPJPM 300,923 1.89% 0 1 1 N.A.

20 UNI-MAD 245,382 1.54% 0 1 1 N.A.

21 ABS 235,086 1.47% 0 1 1 N.A.

22 KAKUSA 228,999 1.44% 0 1 1 N.A.

23 KABATAAN 228,637 1.43% 0 1 1 N.A.

24 ABA-AKO 218,818 1.37% 0 1 1 N.A.

25 ALIF 217,822 1.37% 0 1 1 N.A.

26 SENIOR 213,058 1.34% 0 1 1 N.A.
CITIZENS
27 AT 197,872 1.24% 0 1 1 N.A.

28 VFP 196,266 1.23% 0 1 1 N.A.

29 ANAD 188,521 1.18% 0 1 1 N.A.

30 BANAT 177,028 1.11% 0 1 1 N.A.

31 ANG 170,531 1.07% 0 1 1 N.A.
KASANGGA
32 BANTAY 169,801 1.06% 0 1 1 N.A.

33 ABAKADA 166,747 1.05% 0 1 1 N.A.

34 1-UTAK 164,980 1.03% 0 1 1 N.A.

35 TUCP 162,647 1.02% 0 1 1 N.A.

36 COCOFED 155,920 0.98% 0 1 1 N.A.

Total 17 55
Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives
from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats
allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats
for each party, are shown in column (D).247
APRIL 21, 2009 VOL. 586, 247
Elections
Participation of Major Political Parties in
Party-List Elections
The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in
the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus:
Madam President, I just want to say that we suggested or proposed the party list system because we
wanted to open up the political system to a pluralistic society through a multiparty system. x x x MR.
MONSOD. We are for opening up the system, and we would like very much for the sectors to be
there. That is why one of the ways to do that is to put a ceiling on the number of representatives
from any single party that can sit within the 50 allocated under the party list system. x x x.
x x x
Madam President, the candidacy for the 198 seats is not limited to political parties. My question is
this: Are we going to classify for example Christian Democrats and Social Democrats as political parties?
Can they run under the party list concept or must they be under the district legislation side of it only?
MR. MONSOD.
In reply to that query, I think these parties that the Commissioner mentioned can field candidates for
the Senate as well as for the House of Representatives. MR. VILLACORTA. Likewise, they can also
field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we
are allocating under the party list system.
In other words, the Christian Democrats can field district candidates and can also participate in the
party list system? MR. MONSOD.
MR. VILLACORTA.Why not? When they come to the party list system, they will be fielding
only sectoral candidates.
May I be clarified on that? Can UNIDO participate in the party list system? MR. MONSOD.248

ANNOTATED
Elections
Yes, why not? MR. VILLACORTA. For as long as they field candidates who come from the
different marginalized sectors that we shall designate in this Constitution.
Suppose Senator Tañada wants to run under BAYAN group and says that he represents the farmers,
would he qualify? MR. MONSOD.
No, Senator Tañada would not qualify. MR. VILLACORTA.
But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who
would pass on whether he is a farmer or not? MR. MONSOD.
Kay Commissioner Monsod, gusto ko lamang linawin ito. MR. TADEO. Political parties,
particularly minority political parties, are not prohibited to participate in the party list election if
they can prove that they are also organized along sectoral lines.
What the Commissioner is saying is that all political parties can participate because it is precisely the
contention of political parties that they represent the broad base of citizens and that all sectors are
represented in them. Would the Commissioner agree? MR. MONSOD.
Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the
party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list
system. Gusto ko lamang bigyan ng diin ang “reserve.” Hindi ito reserve seat sa marginalized sectors.
Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. TADEO.
Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and
probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running
under the party list system? MR. MONSOD.
No, as I said, MR. VILLACORTA. UNIDO may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the party list system.
May I inquire from Commissioner Tadeo if he shares that answer? MR. MONSOD.
The same. MR. TADEO.
MR. VILLACORTA.Puwede po ang UNIDO, pero sa sectoral lines.249
APRIL 21, 2009 VOL. 586, 249

Elections
x x x x
x x x In my opinion, this will also create the stimulus for political parties and mass organizations to
seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they
should not be able to make common goals with mass organizations so that the very leadership of these
parties can be transformed through the participation of mass organizations. And if this is true of the
administration parties, this will be true of others like the Partido ng Bayan which is now being formed.
There is no question that they will be attra MR. OPLE.ctive to many mass organizations. In the
opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so
that with their participation, the policies of such parties can be radically transformed because this
amendment will create conditions that will challenge both the mass organizations and the political parties
to come together. And the party list system is certainly available, although it is open to all the parties. It is
understood that the parties will enter in the roll of the COMELEC the names of representatives of mass
organizations affiliated with them. So that we may, in time, develop this excellent system that they have
in Europe where labor organizations and cooperatives, for example, distribute themselves either in the
Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there
has a transforming effect upon the philosophies and the leadership of those parties.
It is also a fact well known to all that in the United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning
that there is no reason at all why political parties and mass organizations should not combine, reenforce,
influence and interact with each other so that the very objectives that we set in this Constitution for
sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I
support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but
at the same time, it challenges the sector to rise to the majesty of being elected representatives later on
through a party list system; and even beyond that, to become actual political parties capable of contesting
political power in the wider constitutional arena for major political parties. 250

ANNOTATED
Elections
x x x” (Emphasis supplied)
32
R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of
R.A. No. 7941 reads:
“ Definition of Terms.(a) The party-list system is a mechanism of proportional representation in the
election of representatives to the House of Representatives from national, regional and sectoral parties or
organizations or coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate independently provided the coalition of
which they form part does not participate in the party-list system.
A party means either a political party or a sectoral party or a coalition of parties. (b)
A political party refers to an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and which, as the most immediate means of
securing their adoption, regularly nominates and supports certain of its leaders and members as candidates
for public office. (c)
It is a national party when its constituency is spread over the geographical territory of at least a
majority of the regions. It is a regional party when its constituency is spread over the geographical
territory of at least a majority of the cities and provinces comprising the region.
A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in
Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector,
(d)
A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics, employment, interests or concerns. (e)
A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes. (f)
_______________
32 II Record, Constitutional Commission 256-257 (25 July 1986), 568 (1 August 1986).

251
APRIL 21, 2009 VOL. 586, 251
Elections
Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list
elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list
system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in
party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down,
19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral
groups.33 In defining a “party” that participates in party-list elections as either “a political party or a sectoral party,”
R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding
the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the
exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political
parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes.
There should not be a problem if, for example, the Liberal Party participates in the party-list election through the
Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus
organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a
fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees.
Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor.
_______________
33 Id., at p. 584 (1 August 1986). Dissenting opinion of Justice Jose C. Vitug in Ang Bagong Bayani-OFW Labor
Party v. Commission on Elections, 412 Phil. 308, 350; 359 SCRA 698, 736 (2001).
252
ANNOTATED
Elections
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:
“Qualifications of Party-List Nominees.—No person shall be nominated as party-list representative
unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately preceding the day of the elections, able to read and
write, bona fide member of the party or organization which he seeks to represent for at least ninety (90)
days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the
election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue until the expiration of his term.”
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s nominee “wallow in
poverty, destitution and infirmity”34 as there is no financial status required in the law. It is enough that the nominee
of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, 35 that is, if the
nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he
or she must be a senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list
representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the
determination of the number of the members of the House of Representatives to Congress: “The House of
Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law,
x x x.” The 20% allocation of party-list rep-
_______________
34 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412 Phil. 308, 336; 359 SCRA 658 (2001).
35 Section 2, R.A. No. 7941.
253
APRIL 21, 2009 VOL. 586, 253
Elections
resentatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of
Representatives. However, we cannot allow the continued existence of a provision in the law which will
systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat
cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid
statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives
shall thus be allocated in accordance with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political
parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing
major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On
the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia.
WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated
3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare
unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of
additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this
Decision. Major political parties are disallowed from participating in party-list elections. This Decision is
immediately executory. No pronouncement as to costs.
SO ORDERED.
Carpio-Morales, Tinga, Nachura, Brion, Peralta andBersamin, JJ., concur.
Puno (C.J.), See Concurring and Dissenting Opinion.254

54 ANNOTATED
Quisumbing, J., I certify that J. Quisumbing joined the Chief Justice’s Opinion.
Ynares-Santiago, J., I join the Chief Justice in his concurring & dissenting opinion.
Austria-Martinez, J., I join the Chief Justice in his concurring and dissenting opinion.
Corona, J., I join the Chief Justice in his concurring and dissenting opinion.
Chico-Nazario, J., I join the Chief Justice in his concurring and dissenting opinion.
Velasco, Jr., J., I join the Chief Justice in his concurring and dissenting opinion.
Leonardo-De Castro, J., I join the Chief Justice in his concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION

PUNO,C.J.:
History has borne witness to the struggle of the faceless masses to find their voice, even as they are relegated to
the sidelines as genuine functional representation systemically evades them. It is by reason of this underlying
premise that the party-list system was espoused and embedded in the Constitution, and it is within this context that I
register my dissent to the entry of major political parties to the party-list system.
The Court today effectively reversed the ruling in Ang Bagong Bayani v. Comelec 1 with regard to the
computation of seat allotments and the participation of major political
_______________
1 G.R. No. 147589, June 26, 2001, 359 SCRA 698.

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APRIL 21, 2009 VOL. 586, 255
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parties in the party-list system. I vote for the formula propounded by the majority as it benefits the party-list system
but I regret that my interpretation of Article VI, Section 5 of the Constitution with respect to the participation of the
major political parties in the election of party-list representatives is not in direct congruence with theirs, hence this
dissent.
To revisit the crux of the controversy, the pertinent portion of Article VI, Section 5 of the Constitution reads:
(1) The House of Representatives shall be composed of not more than two hundred and fifty members,
provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional, and sectoral parties or
organizations. 5. “Section
The party-list representatives shall constitute twenty (2) per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by
law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.” 2
It will be remembered that the petitioners in Ang Bagong Bayani sought the disqualification of the major
political parties on the ground that the party-list system was intended to benefit the marginalized and
underrepresented, and not the mainstream political parties, the non-marginalized or overrepresented. Rising to the
occasion, the Court ruled through then Associate, later Chief Justice Panganiban, that while any duly registered
political party, organization or group may participate, the role of the Comelec is to ensure
_______________
2 Id.
256
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that only those who are marginalized and underrepresented become members of Congress through the “Filipino-
style” party-list elections. Characterizing the party-list system as a social justice vehicle, the Court batted for the
empowerment of the masses, thus—
“It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted—to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress
and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses
and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in
the past—the farm hands, the fisher folk, the urban poor, even those in the underground movement—to
come out and participate, as indeed many of them came out and participated during the last elections. The
State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle.”
Today, less than a decade after, there is an attempt to undo the democratic victory achieved by the marginalized
in the political arena in Ang Bagong Bayani. In permitting the major political parties to participate in the party-list
system, Mr. Justice Carpio relies on the deliberations of the Constitutional Commission. Allegedly, the said
deliberations indicate that the party-list system is open to all political parties, as long as they field candidates who
come from the different marginalized sectors. 3Buttressing his view, Mr. Justice Carpio notes that the major political
parties also fall within the term “political parties” in the Definition of Terms in Republic Act 7941, otherwise known
as the Party-List System Act.4 Likewise, he holds that the qualifications of a party-list nomi-
_______________
3 II Record, Constitutional Commission, 25 July 1986, pp. 256-257.

4 Section 3.
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nee as prescribed in Section 9 of the said law do not specify any financial status or educational requirement, hence,
it is not necessary for the party-list nominee to “wallow in poverty, destitution and infirmity.” 5 It is then concluded
that major political parties may now participate in the party-list system.
With all due respect, I cannot join this submission. We stand on solid grounds when we interpret the
Constitution to give utmost deference to the democratic sympathies, ideals and aspirations of the people. More than
the deliberations in the Constitutional Commission, these are expressed in the text of the Constitution which the
people ratified. Indeed, it is the intent of the sovereign people that matters in interpreting the Constitution. In Civil
Liberties Union v. Executive Secretary, we held:
“While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention “are of value as showing the views of
the individual members, and as indicating the reason for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face.” 6
Everybody agrees that the best way to interpret the Constitution is to harmonize the whole instrument, its every
section and clause.7 We should strive to make every word of the fundamental law operative and avoid rendering
some words idle
_______________
5 Main opinion, p. 33.

6 G.R. No. 83896, February 22, 1991, 194 SCRA 317, 337.
7 Lamborn v. Bell, 20 L.R.A. 241, 18 Colo. 346, 32.
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and nugatory.8The harmonization of Article VI, Section 5 with related constitutional provisions will better reveal the
intent of the people as regards the party-list system. Thus, under Section 7 of the Transitory Provisions, 9 the
President was permitted to fill by appointment the seats reserved for sectoral representation under the party-list
system from a list of nominees submitted by the respective sectors. This was the result of historical precedents that
saw how the elected Members of the interim Batasang Pambansa and the regular Batasang Pambansa tried to
torpedo sectoral representation and delay the seating of sectoral representatives on the ground that they could not
rise to the same levelled status of dignity as those elected by the people. 10 To avoid this bias against sectoral
representatives, the President was given all the leeway to “break new ground and precisely plant the seeds for
sectoral representation so that the sectoral representatives will take roots and be part and parcel exactly of the
process of drafting the law which will stipulate and provide for the concept of sectoral representation.” 11 Similarly,
limiting the party-list system to the marginalized and excluding the major political parties from participating in the
election of their representatives is aligned with the constitutional mandate to “reduce social, economic, and political
inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common
good”;12 the right of the people and their organizations to effective and reasonable participation at all levels of social,
political, and economic decision-making; 13 the right of women to opportunities that will enhance their welfare and
enable them to realize their full po-
_______________
8 Id.
9 Article XVIII.
10 V Record, Constitutional Commission, 1 October 1986, p. 332.
11 Id. at p. 330.
12 Article XIII, Section 1.
13 Article XIII, Sec. 16.
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APRIL 21, 2009 VOL. 586, 259
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tential in the service of the nation; 14 the right of labor to participate in policy and decision-making processes
affecting their rights and benefits in keeping with its role as a primary social economic force; 15 the right of teachers
to professional advancement; 16 the rights of indigenous cultural communities to the consideration of their cultures,
traditions and institutions in the formulation of national plans and policies, 17 and the indispensable role of the private
sector in the national economy18
There is no gainsaying the fact that the party-list parties are no match to our traditional political parties in the
political arena. This is borne out in the party-list elections held in 2001 where major political parties were initially
allowed to campaign and be voted for. The results confirmed the fear expressed by some commissioners in the
Constitutional Commission19 that major political parties would figure in the disproportionate distribution of votes: of
the 162 parties which participated, the seven major political parties 20 made it to the top 50. These seven parties
garnered an accumulated 9.54% of the total number of votes counted, yielding an average of 1.36% each, while the
remaining 155 parties (including those whose qualifications were contested) only obtained 90.45% or an average of
0.58% each. Of these seven, three parties21 or 42.8% of the total number of the major parties
_______________
14 Article XIII, Sec. 3, in relation to section 14.

15 Article XIII, Sec. 3, in relation to Article II, Sec. 18.
16 Article XIV, Sec. 5.
17 Article XIV, Sec. 17.
18 Article II, Sec. 20.
19 Id., at p. 562.
20 As noted in Bagong Bayani: Nationalist People’s Coalition, Lakas NUCD-UMDP, Laban ng Demokratikong
Pilipino, Aksyon Demokratiko, Partido ng Masang Pilipino, Partido Demokratikong Pilipino Lakas ng Bayan and Liberal
Party.
21 Nationalist People’s Coalition, Lakas NUCD-UMDP and Laban ng Demokratikong Pilipino.
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garnered more than 2% of the total number of votes each, a feat that would have entitled them to seat their members
as party-list representatives. In contrast, only about 4% of the total number of the remaining parties, or only 8 out of
the 155 parties garnered more than 2%.22
In sum, the evils that faced our marginalized and underrepresented people at the time of the framing of the 1987
Constitution still haunt them today. It is through the party-list system that the Constitution sought to address this
systemic dilemma. In ratifying the Constitution, our people recognized how the interests of our poor and powerless
sectoral groups can be frustrated by the traditional political parties who have the machinery and chicanery to
dominate our political institutions. If we allow major political parties to participate in the party-list system electoral
process, we will surely suffocate the voice of the marginalized, frustrate their sovereignty and betray the democratic
spirit of the Constitution. That opinion will serve as the graveyard of the party-list system.
IN VIEW WHEREOF, I dissent on the ruling allowing the entry of major political parties into the party-list
system.
SEPARATE OPINION
NACHURA,J.:
I concur with the well-written ponencia of Justice Antonio T. Carpio.
However, I wish to add a few words to support the proposition that the inflexible 2% threshold vote required for
enti-
_______________
22 Party List Canvass Report No. 26, Commission on Elections.

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tlement by a party-list group to a seat in the House of Representatives in Republic Act (R.A.) No. 7941 1 is
unconstitutional. This minimum vote requirement—fixed at 2% of the total number of votes cast for the party list
system—presents an unwarranted obstacle to the full implementation of Section 5 (2), Article VI, of the Philippine
Constitution. As such, it effectively defeats the declared constitutional policy, as well as the legislative objective
expressed in the enabling law, to allow the people’s broadest representation in Congress, 2 the raison d’etre for the
adoption of the party-list system.
Article VI, Section 5 of the 1987 Constitution pertinently provides:
“ 5. Section(1) The House of Representatives shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Ma-
_______________
1 Entitled “An Act Providing for the Election of Party-List Representatives through the Party-List System, and
Appropriating Funds Therefor,” approved on March 3, 1995.
2 Section 2, R.A. 7941, provides:
“The State shall promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and sectoral parties or organizations or
coalitions thereof, which will enable the Filipino citizens belonging to the marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies but could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order
to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives,
by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme
possible.” (Emphasis supplied.)
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nila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.
(2)The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the ratification
of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.
Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent
territory. Each city with a population of at least hundred fifty thousand, or each province, shall have at
least one representative. (3)
Within three years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section.” (4) 3
This party-list provision in the Constitution intends to open the system 4 of representation by allowing different
sectors, parties, organizations and coalitions to win a legislative seat. It diversifies the membership in the legislature
and “gives genuine power to the people.” 5 As aforesaid, the Constitution desires the people’s widest representation
in Congress.
To determine the total number of seats that will be allocated to party-list groups based on the foregoing
constitutional provision, this Court, in Veterans Federation Party v. Commission on Elections,6 declared:
_______________
3 Emphasis supplied.
4 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, G.R. No. 147589, June 26, 2001, 359 SCRA
698, 716.
5 Id., at p. 717.
6 G.R. No. 136781, October 6, 2000, 342 SCRA 244.
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“Clearly, the Constitution makes the number of district representatives the determinant in arriving at
the number of seats allocated for party-list lawmakers, who shall comprise “twenty per centum of the total
number of representatives, including those under the party-list.” We thus translate this legal provision into
a mathematical formula, as follows:
No. of district representatives
--------------------------------------- x .20 = No. of party-list representatives
.80
This formulation means that any increase in the number of district representatives, as may be provided
by law, will necessarily result in a corresponding increase in the number of party-list seats.
On the basis of this formula, the number of party-list seats is not static; it could add up to a substantial figure
depending on the additional number of legislative districts which Congress may create. Thus, for instance,
the ponencia states that “since the 14th Congress of the Philippines has 220 district representatives, there are 55
seats available to party-list representatives,” based on the following computation:
220
--------------------------- x .20 = 55
.80
To provide the mechanics for the implementation of the party-list system, Congress enacted R.A. No. 7941,
Section 117
_______________
7 In full, the provision reads:

11. “SectionNumber of Party-List Representatives.—The party-list representatives shall constitute twenty per
centum (20%) of the total number of the members of the House of Representatives including those under the party-list.
“For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in
the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the
party-list system.
“In determining the allocation of seats for the second vote, the following procedure shall be observed:
264
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of which sets, among others, the inviolable parameter that a party, sectoral organization or coalition, must obtain at
least two percent (2%) of the total votes cast for the party-list system in order to claim one seat in the House of
Representatives. This is referred to as the threshold vote, or the minimum vote requirement.
Here lies the crux of its unconstitutionality.
Given this fixed 2% threshold vote, the maximum number of seats in the House of Representatives which may
be occupied by party-list representatives can never exceed fifty (50), because:
100%
(Total number of votes cast for party-list system)
------------------------------------------------------------------- = 50
2%
In other words, there will never be a situation where the number of party-list representatives will exceed 50,
regardless of the number of district representatives.
I see a scenario in the future when, because of the inexorable growth in the country’s population, Congress
should see fit to increase the legislative district seats to 400. If that happens, there would be a corresponding
adjustment in party-list representation that will translate to 100 party-list seats, applying the formula in Veterans
Federation Party, viz.:
_______________
The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of
votes they garnered during the elections. “(a)
The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-
list system shall be entitled to one seat each: “(b) Provided, That those garnering more than two percent (2%) of
the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.”
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APRIL 21, 2009 VOL. 586, 265
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400
----------------------- x .20 = 100
.80
Yet, by virtue of the rigid 2% threshold requirement, the number of seats that the political parties, organizations or
coalitions registered under the party-list system could ever aspire for would still be limited to only 50.
This is not an unlikely scenario. Today, a little over eight (8) years after this Court’s decision in Veterans
Federation Party, we see that in the 14th Congress, 55 seats are allocated to party-list representatives, using
the Veterans formula. But that figure (of 55) can never be realized, because the 2% threshold vote requirement
makes it mathematically impossible to have more than 50 seats. After all, the total number of votes cast for the
party-list system can never exceed 100%.
This, to my mind, stigmatizes the 2% minimum vote requirement in R.A. 7941. A legal provision that poses an
insurmountable barrier to the full implementation and realization of the constitutional provision on the party-list
system should be declared void. As Chief Justice Reynato S. Puno says in his Concurring and Dissenting Opinion,
“(W)e should strive to make every word of the fundamental law operative and avoid rendering some word idle and
nugatory.”8
Lest I be misunderstood, I do not advocate doing away completely with a threshold vote requirement. The need
for such a minimum vote requirement was explained in careful and elaborate detail by Chief Justice Puno in his
separate concurring opinion in Veterans Federation Party. I fully agree with him that a minimum vote requirement
is needed—
to avoid a situation where the candidate will just use the party-list system as a fallback position; “1.
to discourage nuisance candidates or parties, who are not ready and whose chances are very low, from
participating in the elections; 2.
_______________
8 Citing Lamborn v. Bell, 20 L.R.A. 241, 18 Colo. 346, 32.
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ANNOTATED
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to avoid the reserve seat system by opening up the system; 3.
to encourage the marginalized sectors to organize, work hard, and earn their seats within the
system; 4.
to enable sectoral representatives to rise to the same majesty as that of the elected representatives in
the legislative body, rather than owing to some degree their seats in the legislative body either to an
outright constitutional gift or to an appointment by the President of the Philippines; 5.
if no threshold is imposed, this will actually proliferate political party groups and those who have not
really been given by the people sufficient basis for them to represent their constituents and, in turn, they
will be able to get to the Parliament through the backdoor under the name of the party-list system; and
6.
to ensure that only those with a more or less substantial following can be represented.” 7. 9
However, with the burgeoning of the population, the steady increase in the party-list seat allotment as it keeps
pace with the creation of additional legislative districts, and the foreseeable growth of party-list groups, the fixed 2%
vote requirement is no longer viable. It does not adequately respond to the inevitable changes that come with time;
and it is, in fact, inconsistent with the Constitution, because it prevents the fundamental law from ever being fully
operative.
It is correct to say, and I completely agree with Veterans Federation Party, that Section 5 (2), Article VI of the
Constitution, is not mandatory, that it merely provides a ceiling for the number of party-list seats in Congress. But
when the enabling law, R.A. 7941, enacted by Congress for the precise purpose of implementing the constitutional
provision, contains a condition that places the constitutional ceiling completely beyond reach, totally impossible of
realization, then we must strike down the offending condition as an affront to the fundamental law. This is not
simply an inquiry into the wisdom of the legislative measure; rather it involves the duty
_______________
9 Id., at p. 290.
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APRIL 21, 2009 VOL. 586, 267
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of this Court to ensure that constitutional provisions remain effective at all times. No rule of statutory construction
can save a particular legislative enactment that renders a constitutional provision inoperative and ineffectual.
In light of the foregoing disquisition, what then do we use as the norm for a minimum vote requirement to entitle
a political party, sectoral organization or coalition, to a party-list seat in the House of Representatives?
I submit that, until Congress shall have effected an acceptable amendment to the minimum vote requirement in
R.A. 7941, we abide by the sensible standard of “proportional representation” and adopt a gradually regressive
threshold vote requirement, inversely proportional to the increase in the number of party-list seats. Thus, at present,
considering that there are 55 seats allocated for party-list groups, the formula should be:
100%
(Total number of votes cast for party-list)
--------------------------------------------------------- = 1.818%
55 party-list seats
The minimum vote requirement will gradually lessen as the number of party-list seats increases. Accordingly, if
the scenario we presented above should ever come to pass, and there are 100 seats allocated for party-list groups,
then the threshold vote should be 1%, based on the following computation:
100%
(Total number of votes cast for party-list)
-------------------------------------------------------- = 1%
100 party-list seats
This is the more logical and equitable formula. It would judiciously respond to the inevitable changes in the
composition of the House of Representatives; it would open opportunities for the broadest people’s representation in
the House of Representatives; and more importantly, it would not violate the Constitution. 268
ANNOTATED
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Time changes and laws change with it.10 And the Constitution—
“must grow with the society it seeks to re-structure and march apace with the progress of the race,
drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from being a
petrified rule, a pulsing, living law attuned to the heartbeat of the nation.” 11
Thus, with respect to the fixed threshold vote of 2% in Section 11 of R.A. No. 7941, I join the Court in declaring
it unconstitutional, since all enactments inconsistent with the Constitution should be invalidated. 12
Petition partially granted, Resolution of Comelec dated 3 August 2007 in NBC No. 07-041 (PL) and Resolution
dated 9 July 2007 in NBC No. 07-60 set aside; 2% threshold in distribution of party-list seats declared
unconstitutional; allocation of additional seats under Party-List System shall be in accordance with procedure used
in Table 3 of this decision, major political parties are disallowed from participating in party-list elections.
Note.—View that the value of legislative input as a means of influencing policy should not be discounted—
policy initiatives grounded on particular economic ideologies may find enactment through legislation when
approved by the necessary majorities in Congress. (La Bugal-B’Laan Tribal Association Inc. vs. Ramos, 445 SCRA
1 [2004])
G.R. No. 168056. September 1, 2005. *
ABAKADA GURO PARTY LIST (Formerly AASJAS) OFFICERS SAMSON S. ALCANTARA and ED VINCENT
S. ALBANO, petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA;
HONORABLE SECRETARY OF THE DEPARTMENT OF FINANCE CESAR PURISIMA; and HONORABLE
COMMISSIONER OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., respondents.
G.R. No. 168207. September 1, 2005. *
AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M.

LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, AND SERGIO R. OSMEÑA III,
petitioners, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR., COMMISSIONER OF THE BUREAU OF INTERNAL REVENUE,
respondents.
G.R. No. 168461. September 1, 2005. *
ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO ANTONIO;
PETRON DEALERS’ ASSOCIATION represented by its President, RUTH E. BARBIBI; ASSOCIATION OF
CALTEX DEALERS’ OF THE PHILIPPINES represented by its President, MERCEDITAS A. GARCIA;
ROSARIO ANTONIO doing business under the name and style of “ANB NORTH SHELL SERVICE STATION”;
LOURDES MARTINEZ doing business under the name and style of “SHELL GATE—N. DOMINGO”; BETH-
ZAIDA TAN doing business under the name and style of “ADVANCE SHELL STATION”; REYNALDO P.
MONTOYA
_______________
*
EN BANC.
15
VOL. 469, SEPTEMBER 1, 2005 15
Abakada Guro Party List vs. Ermita
doing business under the name and style of “NEW LAMUAN SHELL SERVICE STATION”; EFREN SOTTO
doing business under the name and style of “RED FIELD SHELL SERVICE STATION”; DONICA
CORPORATION represented by its President, DESI TOMACRUZ; RUTH E. MARBIBI doing business under the
name and style of “R&R PETRON STATION”; PETER M. UNGSON doing business under the name and style of
“CLASSIC STAR GASOLINE SERVICE STATION”; MARIAN SHEILA A. LEE doing business under the name
and style of “NTE GASOLINE & SERVICE STATION”; JULIAN CESAR P. POSADAS doing business under the
name and style of “STARCARGA ENTERPRISES”; ADORACION MAÑEBO doing business under the name and
style of “CMA MOTORISTS CENTER”; SUSAN M. ENTRATA doing business under the name and style of
“LEONA’S GASOLINE STATION and SERVICE CENTER”; CARMELITA BALDONADO doing business under
the name and style of “FIRST CHOICE SERVICE CENTER”; MERCEDITAS A. GARCIA doing business under
the name and style of “LORPED SERVICE CENTER”; RHEAMAR A. RAMOS doing business under the name
and style of “RJRAM PTT GAS STATION”; MA. ISABEL VIOLAGO doing business under the name and style of
“VIOLAGO-PTT SERVICE CENTER”; MOTORISTS’ HEART CORPORATION represented by its Vice-President
for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’ HARVARD CORPORATION represented by its Vice-
President for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’ HERITAGE CORPORATION represented
by its Vice-President for Operations, JOSELITO F. FLORDELIZA; PHILIPPINE STANDARD OIL
CORPORATION represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; ROMEO
MANUEL doing business under the name and style of “ROMMAN GASOLINE STATION”; ANTHONY ALBERT
CRUZ III doing business under the name and style of “TRUE SERVICE STATION”, petitioners, vs. CESAR V.
PURISIMA, in his capacity as Secretary of the Department of
16
16 SUPREME COURT REPORTS ANNOTATED
Finance and GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of Internal Revenue, respondents.
G.R. No. 168463. September 1, 2005.*

FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J. VILLANUEVA,
RODOLFO G. PLAZA, DARLENE ANTONINO-CUSTODIO, OSCAR G. MALAPITAN, BENJAMIN C.
AGARAO, JR. JUAN EDGARDO M. ANGARA, JUSTIN MARC SB. CHIPECO, FLORENCIO G. NOEL,
MUJIV S. HATAMAN, RENATO B. MAGTUBO, JOSEPH A. SANTIAGO, TEOFISTO DL. GUINGONA III,
RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI and TEODORO A. CASIÑO, petitioners, vs. CESAR V.
PURISIMA, in his capacity as Secretary of Finance, GUILLERMO L. PARAYNO, JR., in his capacity as
Commissioner of Internal Revenue, and EDUARDO R. ERMITA, in his capacity as Executive Secretary,
respondents.
G.R. No. 168730. September 1, 2005.*

BATAAN GOVERNOR ENRIQUE T. GARCIA, JR., petitioner, vs. HON. EDUARDO R. ERMITA, in his capacity
as the Executive Secretary; HON. MARGARITO TEVES, in his capacity as Secretary of Finance; HON. JOSE
MARIO BUNAG, in his capacity as the OIC Commissioner of the Bureau of Internal Revenue; and HON.
ALEXANDER AREVALO, in his capacity as the OIC Commissioner of the Bureau of Customs, respondents.
Taxation; Value-Added Tax (VAT); Words and Phrases; The VAT is a tax on spending or consumption—it is levied on the
sale, barter, exchange or lease of goods or properties and services; Being an indirect tax on expenditure, the seller of goods or
services may pass on the amount of tax paid to the buyer; In contrast, a direct tax is a tax for which a taxpayer is directly liable
on the transaction or business it engages in, without transferring the burden to someone else.—As a prelude, the Court deems it
apt to restate the general principles and
17
VOL. 469, SEPTEMBER 1, 2005

7
concepts of value-added tax (VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its
nature. The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of goods or properties and
services. Being an indirect tax on expenditure, the seller of goods or services may pass on the amount of tax paid to the buyer,
with the seller acting merely as a tax collector. The burden of VAT is intended to fall on the immediate buyers and ultimately, the
end-consumers. In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it engages in,
without transferring the burden to someone else. Examples are individual and corporate income taxes, transfer taxes, and
residence taxes.
Same; Same; Same; In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a
different mode—prior to 1978, the system was a single-stage tax computed under the “cost deduction method” and was payable
only by the original sellers, then the single-stage system was subsequently modified, and a mixture of the “cost deduction
method” and “tax credit method” was used to determine the value-added tax payable; Under the “tax credit method,” an entity
can credit against or subtract from the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and imports.—
In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a different mode. Prior to 1978,
the system was a single-stage tax computed under the “cost deduction method” and was payable only by the original sellers. The
single-stage system was subsequently modified, and a mixture of the “cost deduction method” and “tax credit method” was used
to determine the value-added tax payable. Under the “tax credit method,” an entity can credit against or subtract from the VAT
charged on its sales or outputs the VAT paid on its purchases, inputs and imports. It was only in 1987, when President Corazon
C. Aquino issued Ex-ecutive Order No. 273, that the VAT system was rationalized by imposing a multi-stage tax rate of 0% or
10% on all sales using the “tax credit method.” E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law, R.A.
No. 8241 or the Improved VAT Law, R.A. No. 8424 or the Tax Reform Act of 1997, and finally, the presently beleaguered R.A.
No. 9337, also referred to by respondents as the VAT Reform Act.
18

8 ANNOTATED
Congress; Bicameral Conference Committee; Legislative Rules;It should be borne in mind that the power of internal
regulation and discipline are intrinsic in any legislative body, and pursuant to this inherent constitutional power to promulgate
and implement its own rules of procedure, the respective rules of each house of Congress provided for the creation of a
Bicameral Conference Committee.— Petitioners now beseech the Court to define the powers of the Bi-cameral Conference
Committee. It should be borne in mind that the power of internal regulation and discipline are intrinsic in any legislative body
for, as unerringly elucidated by Justice Story, “[i]f the power did not exist, it would be utterly impracticable to transact the
business of the nation, either at all, or at least with decency, deliberation, and order. ” Thus, Article VI, Section 16 (3) of the
Constitution provides that “each House may determine the rules of its proceed-ings.” Pursuant to this inherent constitutional
power to promulgate and implement its own rules of procedure, the respective rules of each house of Congress provided for the
creation of a Bicameral Conference Committee.
Same; Same; Same; Separation of Powers; Judicial Review;Congress is the best judge of how it should conduct its own
business expeditiously and in the most orderly manner; If a change is desired in the practice [of the Bicameral Conference
Committee] it must be sought in Congress since this question is not covered by any constitutional provision but is only an
internal rule of each house; Even the expanded jurisdiction of the Supreme Court cannot apply to questions regarding only the
internal operation of Congress, thus, the Court is wont to deny a review of the internal proceedings of a co-equal branch of
government.—Akin to the Fariñas case, the present petitions also raise an issue regarding the actions taken by the conference
committee on matters regarding Congress’ compliance with its own internal rules. As stated earlier, one of the most basic and
inherent power of the legislature is the power to formulate rules for its proceedings and the discipline of its members. Congress is
the best judge of how it should conduct its own business expeditiously and in the most orderly manner. It is also the sole concern
of Congress to instill discipline among the members of its conference committee if it believes that said members violated any of
its rules of proceedings. Even the expanded jurisdiction of this Court cannot apply to questions regarding only the internal
operation of Congress, thus, the Court is wont to deny a review of the internal proceedings of a co-equal branch of
19

9
government. Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of
Finance, the Court already made the pronouncement that “[i]f a change is desired in the practice [of the Bicameral Conference
Committee] it must be sought in Congress since this question is not covered by any constitutional provision but is only an
internal rule of each house.”To date, Congress has not seen it fit to make such changes adverted to by the Court. It seems,
therefore, that Congress finds the practices of the bicameral conference committee to be very useful for purposes of prompt and
efficient legislative action.
Same; Same; Same; Words and Phrases; The term “settle” is synonymous to “reconcile” and “harmonize”; To reconcile
or harmonize disagreeing provisions, the Bicameral Conference Committee may then (a) adopt the specific provisions of either
the House bill or Senate bill, (b) decide that neither provisions in the House bill or the provisions in the Senate bill would be
carried into the final form of the bill, and/or (c) try to arrive at a compromise between the disagreeing provisions.—Under the
provisions of both the Rules of the House of Representatives and Senate Rules, the Bicameral Conference Committee is
mandated to settle the differences between the disagreeing provisions in the House bill and the Senate bill. The term “settle” is
synonymous to “reconcile” and “harmonize.” To reconcile or harmonize disagreeing provisions, the Bicameral Conference
Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b) decide that neither provisions in
the House bill or the provisions in the Senate bill would be carried into the final form of the bill, and/or (c) try to arrive at a
compromise between the disagreeing provisions.
Same; Same; Same; It is within the power of a conference committee to include in its report an entirely new provision that
is not found either in the House bill or in the Senate bill—if the committee can propose an amendment consisting of one or two
provisions, there is no reason why it cannot propose several provisions, collectively considered as an “amendment in the nature
of a substitute,” so long as such amendment is germane to the subject of the bills before the committee. —All the changes or
modifications made by the Bicameral Conference Committee were germane to subjects of the provisions referred to it for
reconciliation. Such being the case, the Court does not see any grave abuse of discretion amounting to lack or excess of
20

0 ANNOTATED
jurisdiction committed by the Bicameral Conference Committee. In the earlier cases of Philippine Judges Association vs.
Pradoand Tolentino vs. Secretary of Finance, the Court recognized the longstanding legislative practice of giving said conference
committee ample latitude for compromising differences between the Senate and the House. Thus, in the Tolentino case, it was
held that: . . . it is within the power of a conference committee to include in its report an entirely new provision that is not found
either in the House bill or in the Senate bill. If the committee can propose an amendment consisting of one or two provisions,
there is no reason why it cannot propose several provisions, collectively considered as an “amendment in the nature of a
substitute,” so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not
final but needed the approval of both houses of Congress to become valid as an act of the legislative department. The charge
that in this case the Conference Committee acted as a third legislative chamber is thus without any basis.
Same; Same; Same; “No Amendment” Rule; The “no-amend-ment rule” refers only to the procedure to be followed by
each house of Congress with regard to bills initiated in each of said respective houses, before said bill is transmitted to the other
house for its concurrence or amendment—Art. VI, Sec. 26 (2) of the Constitution cannot be taken to mean that the introduction
by the Bicameral Conference Committee of amendments and modifications to disagreeing provisions in bills that have been acted
upon by both houses of Congress is prohibited.—The Court reiterates here that the “no-amendment rule” refers only to the
procedure to be followed by each house of Congress with regard to bills initiated in each of said respective houses, before said
bill is transmitted to the other house for its concurrence or amendment. Verily, to construe said provision in a way as to proscribe
any further changes to a bill after one house has voted on it would lead to absurdity as this would mean that the other house of
Congress would be deprived of its constitutional power to amend or introduce changes to said bill. Thus, Art. VI, Sec. 26 (2) of
the Constitution cannot be taken to mean that the introduction by the Bicameral Conference Committee of amendments and
modifications to disagreeing provisions in bills that have been acted upon by both houses of Congress is prohibited.
21

1
Same; Origin of Bills; Revenue Bills; Since there is no question that the revenue bill originated in the House of
Representatives, the Senate was acting within its constitutional power to introduce amendments to the House bill when it
included provisions in Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes—Article
VI, Section 24 of the Constitution does not contain any prohibition or limitation on the extent of the amendments that may be
introduced by the Senate to the House revenue bill.—In the present cases, petitioners admit that it was indeed House Bill Nos.
3555 and 3705 that initiated the move for amending provisions of the NIRC dealing mainly with the value-added tax. Upon
transmittal of said House bills to the Senate, the Senate came out with Senate Bill No. 1950 proposing amendments not only to
NIRC provisions on the value-added tax but also amendments to NIRC provisions on other kinds of taxes. Is the introduction by
the Senate of provisions not dealing directly with the value-added tax, which is the only kind of tax being amended in the House
bills, still within the purview of the constitutional provision authorizing the Senate to propose or concur with amendments to a
revenue bill that originated from the House? * * * Since there is no question that the revenue bill exclusively originated in the
House of Representatives, the Senate was acting within its constitutional power to introduce amendments to the House bill when
it included provisions in Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes. Verily,
Article VI, Section 24 of the Constitution does not contain any prohibition or limitation on the extent of the amendments that may
be introduced by the Senate to the House revenue bill.
Same; Same; Same; The main purpose of the bills emanating from the House of Representatives is to bring in sizeable
revenues for the government to supplement our country’s serious financial problems, and improve tax administration and control
of the leakages in revenues from income taxes and value-added taxes, and the Senate, approaching the measures from the point
of national perspective, can introduce amendments within the purposes of those bills, like providing ways that would soften the
impact of the VAT measure on the consumer.—The main purpose of the bills emanating from the House of Representatives is to
bring in sizeable revenues for the government to supplement our country’s serious financial problems, and improve tax
administration and control of the leakages in revenues
22
2 ANNOTATED
from income taxes and value-added taxes. As these house bills were transmitted to the Senate, the latter, approaching the
measures from the point of national perspective, can introduce amendments within the purposes of those bills. It can provide for
ways that would soften the impact of the VAT measure on the consumer, i.e., by distributing the burden across all sectors instead
of putting it entirely on the shoulders of the consumers.
Same; Same; Same; Germaneness Rule; The amendments made on provisions in the tax on income of corporations are
germane to the purpose of the house bills which is to raise revenues for the government, and the sections referring to other
percentage and excise taxes are germane to the reforms to the VAT system, as these sections would cushion the effects of VAT on
consumers.—As the Court has said, the Senate can propose amendments and in fact, the amendments made on provisions in the
tax on income of corporations are germane to the purpose of the house bills which is to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the reforms to the VAT system,
as these sections would cushion the effects of VAT on consumers. Considering that certain goods and services which were
subject to percentage tax and excise tax would no longer be VAT-exempt, the consumer would be burdened more as they would
be paying the VAT in addition to these taxes. Thus, there is a need to amend these sections to soften the impact of VAT.
Separation of Powers; Delegation of Powers; A logical corollary to the doctrine of separation of powers is the principle
of non-delegation of powers, a doctrine based on the ethical principle that such as delegated power constitutes not only a right
but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind
of another.—The principle of separation of powers ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. A logical corollary to the
doctrine of separation of powers is the principle of non-delegation of powers, as expressed in the Latin maxim: potestas delegata
non delegari potest which means “what has been delegated, cannot be delegated.” This doctrine is based on the ethical principle
that such as delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumen-
23

3
tality of his own judgment and not through the intervening mind of another.
Same; Same; Exception to the Non-Delegation of Legislative Powers; Words and Phrases; The powers which Congress is
prohibited from delegating are those which are strictly, or inherently and exclusively, legislative—appertaining exclusively to the
legislative department; Purely legislative power has been described as the authority to make a complete law—complete as to the
time when it shall take effect and as to whom it shall be applicable—and to determine the expediency of its enactment; It is the
nature of the power, and not the liability of its use or the manner of its exercise, which determines the validity of its delegation.—
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that “the Legislative power shall be vested in
the Congress of the Philippines which shall consist of a Senate and a House of Representatives .” The powers which Congress is
prohibited from delegating are those which are strictly, or inherently and exclusively, legislative. Purely legislative power, which
can never be delegated, has been described as the authority to make a complete law—complete as to the time when it shall take
effect and as to whom it shall be applicable—and to determine the expediency of its enactment. Thus, the rule is that in order that
a court may be justified in holding a statute unconstitutional as a delegation of legislative power, it must appear that the power
involved is purely legislative in nature—that is, one appertaining exclusively to the legislative department. It is the nature of the
power, and not the liability of its use or the manner of its exercise, which determines the validity of its delegation. Nonetheless,
the general rule barring delegation of legislative powers is subject to the following recognized limitations or exceptions: (1)
Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution; (2) Delegation of emergency
powers to the President under Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people at large; (4)
Delegation to local governments; and (5) Delegation to administrative bodies.
Same; Same; Same; Tests of Valid Delegation; A delegation is valid only if the law (a) is complete in itself, setting forth
therein the policy to be executed, carried out, or implemented by the delegate, and (b) fixes a standard—the limits of which are
sufficiently determinate and determinable—to which the delegate must conform in the per-
24

4 ANNOTATED
formance of his functions; A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.—In every case of permissible delegation, there must be a showing that the
delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate; and (b) fixes a standard—the limits of which are sufficiently determinate and determinable
—to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative
policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under
which the legislative command is to be effected. Both tests are intended to prevent a total transference of legislative authority to
the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.
Same; Same; Taxation; While the power to tax cannot be delegated to executive agencies, details as to the enforcement
and administration of an exercise of such power may be left to them, including the power to determine the existence of facts on
which its operation depends, the rationale being that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function but is simply ancillary to legislation; The Constitution as a continuously operative
charter of government does not require that Congress find for itself every fact upon which it desires to base legislative action or
that it make for itself detailed determinations which it has declared to be prerequisite to application of legislative policy to
particular facts and circumstances impossible for Congress itself properly to investigate.—The legislature may delegate to
execu-tive officers or bodies the power to determine certain facts or conditions, or the happening of contingencies, on which the
operation of a statute is, by its terms, made to depend, but the legislature must prescribe sufficient standards, policies or
limitations on their authority. While the power to tax cannot be delegated to executive agencies, details as to the enforcement and
administration of an exercise of such power may be left to them, including the power to determine the existence of facts on which
its operation depends. The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of legislation
is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty of correlating informa-
25

5
tion and making recommendations is the kind of subsidiary activity which the legislature may perform through its
members, or which it may delegate to others to perform. Intelligent legislation on the complicated problems of modern society is
impossible in the absence of accurate information on the part of the legislators, and any reasonable method of securing such
information is proper. The Constitution as a continuously operative charter of government does not require that Congress find for
itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has
declared to be prerequisite to application of legislative policy to particular facts and circumstances impossible for Congress itself
properly to investigate.
Same; Same; Same; Statutory Construction; The case before the Court is not a delegation of legislative power—it is
simply a delegation of ascertainment of facts upon which enforcement and administration of the increase rate under the law is
contingent; No discretion would be exercised by the President; The use of the word “shall” connotes a mandatory order. —The
case before the Court is not a delegation of legislative power. It is simply a delegation of ascertainment of facts upon which
enforcement and administration of the increase rate under the law is contingent. The legislature has made the operation of the
12% rate effective January 1, 2006, contingent upon a specified fact or condition. It leaves the entire operation or non-operation
of the 12% rate upon factual matters outside of the control of the executive. No discretion would be exercised by the President.
Highlighting the absence of discretion is the fact that the word shall is used in the common proviso. The use of the
word shall connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of
discretion. Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but
to see to it that the mandate is obeyed. Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon
the existence of any of the conditions specified by Congress. This is a duty which cannot be evaded by the President. Inasmuch as
the law specifically uses the word shall, the exercise of discretion by the President does not come into play. It is a clear directive
to impose the 12% VAT rate when the specified conditions are present. The time of taking into effect of the 12% VAT rate is
based on the happening of a certain specified contingency, or upon
26

6 ANNOTATED
the ascertainment of certain facts or conditions by a person or body other than the legislature itself.
Same; Same; Presidency; Control Power; Doctrine of Qualified Political Agency; When one speaks of the Secretary of
Finance as the alter ego of the President, it simply means that as head of the Department of Finance he is the assistant and agent
of the Chief Executive—as such, he occupies a political position and holds office in an advisory capacity, and, in the language of
Thomas Jefferson, “should be of the President's bosom confidence” and, in the language of Attorney-General Cushing, is
“subject to the direction of the President.”— When one speaks of the Secretary of Finance as the alter ego of the President, it
simply means that as head of the Department of Finance he is the assistant and agent of the Chief Executive. The multifarious
executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the
acts of the secretaries of such departments, such as the Department of Finance, performed and promulgated in the regular course
of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. The
Secretary of Finance, as such, occupies a political position and holds office in an advisory capacity, and, in the language of
Thomas Jefferson, “should be of the President’s bosom confidence” and, in the language of Attorney-General Cushing, is
“subject to the direction of the President.”
Same; Same; Same; Same; Same; In the present case, in making his recommendation to the President on the existence of
either of the two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her subordinate, and
he is not subject to the power of control and direction of the President—he is acting as the agent of the legislative department, to
determine and declare the event upon which its expressed will is to take effect, becoming the means or tool by which legislative
policy is determined and implemented.—In the present case, in making his recommendation to the President on the existence of
either of the two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her subordinate. In
such instance, he is not subject to the power of control and direction of the President. He is acting as the agent of the legislative
department, to determine and declare the event upon which its expressed will is to take effect. The Secretary of Finance
27

7
becomes the means or tool by which legislative policy is determined and implemented, considering that he possesses all
the facilities to gather data and information and has a much broader perspective to properly evaluate them. His function is to
gather and collate statistical data and other pertinent information and verify if any of the two conditions laid out by Congress is
present. His personality in such instance is in reality but a projection of that of Congress. Thus, being the agent of Congress and
not of the President, the President cannot alter or modify or nullify, or set aside the findings of the Secretary of Finance and to
substitute the judgment of the former for that of the latter.
Same; Same; Congress does not abdicate its functions or unduly delegate power when it describes what job must be done,
who must do it, and what is the scope of his authority—in our complex economy that is frequently the only way in which the
legislative process can go forward.—Congress simply granted the Secretary of Finance the authority to ascertain the existence of
a fact, namely, whether by December 31, 2005, the value-added tax collection as a percentage of Gross Domestic Product (GDP)
of the previous year exceeds two and four-fifth percent (2 4/5%) or the national government deficit as a percentage of GDP of the
previous year exceeds one and one-half percent (1 1/2%). If either of these two instances has occurred, the Secretary of Finance,
by legislative mandate, must submit such information to the President. Then the 12% VAT rate must be imposed by the President
effective January 1, 2006. There is no undue delegation of legislative power but only of the discretion as to the execution of a
law. This is constitutionally permissible. Congress does not abdicate its functions or unduly delegate power when it describes
what job must be done, who must do it, and what is the scope of his authority; in our complex economy that is frequently the only
way in which the legislative process can go forward.
Same; Same; Taxation; Value-Added Tax; The intent and will to increase the VAT rate to 12% came from Congress and
the task of the President is to simply execute the legislative policy.—As to the argument of petitioners ABAKADA GURO Party
List, et al.that delegating to the President the legislative power to tax is contrary to the principle of republicanism, the same
deserves scant consideration. Congress did not delegate the power to tax but the mere im-
28

8 ANNOTATED
plementation of the law. The intent and will to increase the VAT rate to 12% came from Congress and the task of the
President is to simply execute the legislative policy. That Congress chose to do so in such a manner is not within the province of
the Court to inquire into, its task being to interpret the law.
Judicial Review; The Court does not rule on allegations which are manifestly conjectural, as these may not exist at all—
the Court deals with facts, not fancies, on realities, not appearances.—The insinuation by petitioners Pimentel, et al. that the
President has ample powers to cause, influence or create the conditions to bring about either or both the conditions precedent
does not deserve any merit as this argument is highly speculative. The Court does not rule on allegations which are manifestly
conjectural, as these may not exist at all. The Court deals with facts, not fancies; on realities, not appearances. When the Court
acts on appearances instead of realities, justice and law will be short-lived.
Same; Separation of Powers; Statutory Construction; Rewriting the law is a forbidden ground that only Congress may
tread upon.— Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set forth therein
are satisfied, the President shall increase the VAT rate to 12%. The provisions of the law are clear. It does not provide for a return
to the 10% rate nor does it empower the President to so revert if, after the rate is increased to 12%, the VAT collection goes
below the 2 4/5 of the GDP of the previous year or that the national government deficit as a percentage of GDP of the previous
year does not exceed 1 1/2%. Therefore, no statutory construction or interpretation is needed. Neither can conditions or
limitations be introduced where none is provided for. Rewriting the law is a forbidden ground that only Congress may tread upon.
Taxation; Value-Added Tax; Fiscal Adequacy; Words and Phrases; The principle of fiscal adequacy as a characteristic
of a sound tax system, which was originally stated by Adam Smith in his Canons of Taxation, simply means that sources of
revenues must be adequate to meet government expenditures and their variations.— That the first condition amounts to an
incentive to the President to increase the VAT collection does not render it unconstitutional so long as there is a public purpose
for which the law was passed,
29

9
which in this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need for a raise in revenue. The principle
of fiscal adequacy as a characteristic of a sound tax system was originally stated by Adam Smith in his Canons of
Taxation (1776), as: IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the people as
little as possible over and above what it brings into the public treasury of the state. It simply means that sources of revenues must
be adequate to meet government expenditures and their variations.
Same; Same; Due Process; Equal Protection; Where the due process and equal protection clauses are invoked,
considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as
would lead to such a conclusion.—The doctrine is that where the due process and equal protection clauses are invoked,
considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as
would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail.
Same; Same; Words and Phrases; Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-
added tax due from or paid by a VAT-registered person on the importation of goods or local purchase of good and services,
including lease or use of property, in the course of trade or business, from a VAT-registered person, and Output Tax is the value-
added tax due on the sale or lease of taxable goods or properties or services by any person registered or required to register
under the law.—Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the amount of input
tax that may be credited against the output tax. It states, in part: “[P]rovided, that the input tax inclusive of the input VAT carried
over from the previous quarter that may be credited in every quarter shall not exceed seventy percent (70%) of the output VAT:
…”” Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax due from or paid by a VAT-
registered person on the importation of goods or local purchase of good and services, including lease or use of property, in the
course of trade or business, from a VAT-registered person, and Output Tax is the value-added tax due on the sale or lease of
taxable goods or properties or services by any person registered or required to register under the law.
30

0 ANNOTATED
Same; Same; Due Process; Vested Rights; The input tax is not a property or a property right within the constitutional
purview of the due process clause—a VAT-registered person’s entitlement to the creditable input tax is a mere statutory
privilege; The right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that also the law
can remove or limit; The distinction between statutory privileges and vested rights must be borne in mind for persons have no
vested rights in statutory privileges.—The input tax is not a property or a property right within the constitutional purview of the
due process clause. A VAT-registered person’s entitlement to the creditable input tax is a mere statutory privilege. The
distinction between statutory privileges and vested rights must be borne in mind for persons have no vested rights in statutory
privileges. The state may change or take away rights, which were created by the law of the state, although it may not take away
property, which was vested by virtue of such rights. Under the previous system of single-stage taxation, taxes paid at every level
of distribution are not recoverable from the taxes payable, although it becomes part of the cost, which is deductible from the
gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all sales, it was then that the crediting
of the input tax paid on purchase or importation of goods and services by VAT-registered persons against the output tax was
introduced. This was adopted by the Expanded VAT Law (R.A. No. 7716), and The Tax Reform Act of 1997 (R.A. No. 8424).
The right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that also the law can
remove, or in this case, limit.
Same; Same; Congress admitted that the spread-out of the creditable input tax in this case amounts to a 4-year interest-
free loan to the government; For whatever is the purpose of the 60-month amortization, this involves executive economic policy
and legislative wisdom in which the Court cannot intervene.—It is worth mentioning that Congress admitted that the spread-out
of the creditable input tax in this case amounts to a 4-year interest-free loan to the government. In the same breath, Congress also
justified its move by saying that the provision was designed to raise an annual revenue of 22.6 billion. The legislature also
dispelled the fear that the provision will fend off foreign investments, saying that foreign investors have other tax incentives
provided by law, and citing the case of China, where despite a 17.5% non-creditable VAT, foreign investments were not
31

1
deterred. Again, for whatever is the purpose of the 60-month amortization, this involves executive economic policy and
legislative wisdom in which the Court cannot intervene.
Same; Same; With regard to the 5% creditable withholding tax imposed on payments made by the government for taxable
transactions, Section 114 (C) of the National Internal Revenue Code merely provides a method of collection, or as stated by
respondents, a more simplified VAT withholding system—the government in this case is constituted as a withholding agent with
respect to their payments for goods and services.—With regard to the 5% creditable withholding tax imposed on payments made
by the government for taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads: * * *
Section 114(C) merely provides a method of collection, or as stated by respondents, a more simplified VAT withholding system.
The government in this case is constituted as a withholding agent with respect to their payments for goods and services. Prior to
its amendment, Section 114(C) provided for different rates of value-added taxes to be withheld—3% on gross payments for
purchases of goods; 6% on gross payments for services supplied by contractors other than by public works contractors; 8.5% on
gross payments for services supplied by public work contractors; or 10% on payment for the lease or use of properties or property
rights to nonresident owners. Under the present Section 114(C), these different rates, except for the 10% on lease or property
rights payment to nonresidents, were deleted, and a uniform rate of 5% is applied.
Same; Same; Words and Phrases; In tax usage, “final,” as opposed to creditable, means full; As applied to value-added
tax, taxable transactions with the government are subject to a 5% tax rate, which constitutes as full payment of the tax payable
on the transaction.—The Court observes, however, that the law used the word final. In tax usage, final, as opposed to creditable,
means full. Thus, it is provided in Section 114(C): “final value-added tax at the rate of five percent (5%).” In Revenue
Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the concept of final withholding tax on
income was explained, to wit: SECTION 2.57. Withholding of Tax at Source. (A) Final Withholding Tax.—Under the final
withholding tax system the amount of income tax withheld by the withholding agent is constituted as full and final payment
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2 ANNOTATED
of the income tax due from the payee on the said income. The liability for payment of the tax rests primarily on the payor
as a withholding agent. Thus, in case of his failure to withhold the tax or in case of underwithholding, the deficiency tax shall be
collected from the payor/withholding agent. . . . (B) Creditable Withholding Tax.—Under the creditable withholding tax system,
taxes withheld on certain income payments are intended to equal or at least approximate the tax due of the payee on said
income. . . . Taxes withheld on income payments covered by the expanded withholding tax (referred to in Sec. 2.57.2 of these
regulations) and compensation income (referred to in Sec. 2.78 also of these regulations) are creditable in nature. As applied to
value-added tax, this means that taxable transactions with the government are subject to a 5% rate, which constitutes as full
payment of the tax payable on the transaction. This represents the net VAT payable of the seller. The other 5% effectively
accounts for the standard input VAT (deemed input VAT), in lieu of the actual input VAT directly or attributable to the taxable
transaction.
Same; Same; It is clear that Congress intended to treat differently transactions with the government; Since it has not been
shown that the class subject to the final 5% final withholding tax has been unreasonably narrowed, there is no reason to
invalidate the provision.—The Court need not explore the rationale behind the provision. It is clear that Congress intended to
treat differently taxable transactions with the government. This is supported by the fact that under the old provision, the 5% tax
withheld by the government remains creditable against the tax liability of the seller or contractor, to wit: SEC. 114. Return and
Payment of Value-added Tax.—(C) Withholding of CreditableValue-added Tax.—The Government or any of its political
subdivisions, instrumentalities or agencies, including government-owned or controlled corporations (GOCCs) shall, before
making payment on account of each purchase of goods from sellers and services rendered by contractors which are subject to the
value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold the value-added tax due at the rate of three
percent (3%) of the gross payment for the purchase of goods and six percent (6%) on gross receipts for services rendered by
contractors on every sale or installment payment which shall be creditable against the value-added tax liability of the seller or
contractor: Provided, however, That in the case of government public works
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3
contractors, the withholding rate shall be eight and one-half percent (8.5%): Provided, further, That the payment for lease
or use of properties or property rights to nonresident owners shall be subject to ten percent (10%) withholding tax at the time of
payment. For this purpose, the payor or person in control of the payment shall be considered as the withholding agent. The
valued-added tax withheld under this Section shall be remitted within ten (10) days following the end of the month the
withholding was made. (Emphasis supplied) As amended, the use of the word final and the deletion of the
word creditable exhibits Congress’s intention to treat transactions with the government differently. Since it has not been shown
that the class subject to the 5% final withholding tax has been unreasonably narrowed, there is no reason to invalidate the
provision. Petitioners, as petroleum dealers, are not the only ones subjected to the 5% final withholding tax. It applies to all those
who deal with the government.
Same; Same; Judicial Review; The Court will not engage in a legal joust where premises are what ifs, arguments,
theoretical and facts, uncertain—any disquisition by the Court on this point will only be, as Shakespeare describes life in
Macbeth, “full of sound and fury, signifying nothing”; It need not take an astute businessman to know that it is a matter of
exception that a business will sell goods or services without profit or value-added. —Petitioners also argue that by imposing a
limitation on the creditable input tax, the government gets to tax a profit or value-added even if there is no profit or value-added.
Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will not engage in a legal joust where
premises are what ifs, arguments, theoretical and facts, uncertain. Any disquisition by the Court on this point will only be, as
Shake-speare describes life in Macbeth, “full of sound and fury, signifying nothing.” What’s more, petitioners’ contention
assumes the proposition that there is no profit or value-added. It need not take an astute businessman to know that it is a matter of
exception that a business will sell goods or services without profit or value-added. It cannot be overstressed that a business is
created precisely for profit.
Same; Same; Equal Protection; The power of the State to make reasonable and natural classifications for the purposes of
taxation has long been established.—The equal protection clause under the Constitution means that “no person or class of
persons shall be de-
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4 ANNOTATED
prived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.” The power of the State to make reasonable and natural classifications for the purposes of taxation has long been
established. Whether it relates to the subject of taxation, the kind of property, the rates to be levied, or the amounts to be raised,
the methods of assessment, valuation and collection, the State’s power is entitled to presumption of validity. As a rule, the
judiciary will not interfere with such power absent a clear showing of unreasonableness, discrimination, or arbitrariness.
Same; Same; Same; The equal protection clause does not require the universal application of the laws on all persons or
things without distinction; While the implementation of the law may yield varying end results depending on one’s profit margin
and value-added, the Court cannot go beyond what the legislature has laid down and interfere with the affairs of business.—
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input tax, or invests in capital
equipment, or has several transactions with the government, is not based on real and substantial differences to meet a valid
classification. The argument is pedantic, if not outright baseless. The law does not make any classification in the subject of
taxation, the kind of property, the rates to be levied or the amounts to be raised, the methods of assessment, valuation and
collection. Petitioners’ alleged distinctions are based on variables that bear different consequences. While the implementation of
the law may yield varying end results depending on one’s profit margin and value-added, the Court cannot go beyond what the
legislature has laid down and interfere with the affairs of business. The equal protection clause does not require the universal
application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection.
What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the
grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars.
Same; Same; Same; Uniformity of Taxation; The rule of uniform taxation does not deprive Congress of the power to
classify subjects of taxation, and only demands uniformity within the particular class.—Uniformity in taxation means that all
taxable articles or
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kinds of property of the same class shall be taxed at the same rate. Different articles may be taxed at different amounts
provided that the rate is uniform on the same class everywhere with all people at all times. In this case, the tax law is uniform as
it provides a standard rate of 0% or 10% (or 12%) on all goods and services. Sections 4, 5 and 6 of R.A. No. 9337, amending
Sections 106, 107 and 108, respectively, of the NIRC, provide for a rate of 10% (or 12%) on sale of goods and properties,
importation of goods, and sale of services and use or lease of properties. These same sections also provide for a 0% rate on
certain sales and transaction. Neither does the law make any distinction as to the type of industry or trade that will bear the 70%
limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of capital goods or the 5% final
withholding tax by the government. It must be stressed that the rule of uniform taxation does not deprive Congress of the power
to classify subjects of taxation, and only demands uniformity within the particular class.
Same; Same; Equitable Taxation; R.A. No. 9337 is equitable.— R.A. No. 9337 is also equitable. The law is equipped with
a threshold margin. The VAT rate of 0% or 10% (or 12%) does not apply to sales of goods or services with gross annual sales or
receipts not exceeding P1,500,000.00. Also, basic marine and agricultural food products in their original state are still not subject
to the tax, thus ensuring that prices at the grassroots level will remain accessible. As was stated in Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan: The disputed sales tax is also equitable. It is imposed only on sales of
goods or services by persons engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small
corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of farm and marine
products, so that the costs of basic food and other necessities, spared as they are from the incidence of the VAT, are expected to
be relatively lower and within the reach of the general public.
Same; Same; Progressive Taxation; Progressive taxation is built on the principle of the taxpayer’s ability to pay—
taxation is progressive when its rate goes up depending on the resources of the person affected.—Petitioners contend that the
limitation on the creditable input tax is anything but regressive. It is the smaller business with higher input tax-output tax ratio
that will suffer the consequences. Progressive taxation is built on the principle of the taxpayer’s ability
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6 ANNOTATED
to pay. This principle was also lifted from Adam Smith’s Canons of Taxation, and it states: I. The subjects of every state
ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is,
in proportion to the revenue which they respectively enjoy under the protection of the state. Taxation is progressive when its rate
goes up depending on the resources of the person affected.
Same; Same; Same; The VAT is an antithesis of progressive taxation—by its very nature, it is regressive; The principle of
progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the consumer or business for every goods
bought or services enjoyed is the same regardless of income.—The VAT is an antithesis of progressive taxation. By its very
nature, it is regressive. The principle of progressive taxation has no relation with the VAT system inasmuch as the VAT paid by
the consumer or business for every goods bought or services enjoyed is the same regardless of income. In other words, the VAT
paid eats the same portion of an income, whether big or small. The disparity lies in the income earned by a person or profit
margin marked by a business, such that the higher the income or profit margin, the smaller the portion of the income or profit that
is eaten by VAT. A converso, the lower the income or profit margin, the bigger the part that the VAT eats away. At the end of the
day, it is really the lower income group or businesses with low-profit margins that is always hardest hit.
Same; Same; Same; The Constitution does not really prohibit the imposition of indirect taxes, like the VAT.—The
Constitution does not really prohibit the imposition of indirect taxes, like the VAT. What it simply provides is that Congress shall
“evolve a progressive system of taxation.” The Court stated in the Tolentino case, thus: The Constitution does not really prohibit
the imposition of indirect taxes which, like the VAT, are regressive. What it simply provides is that Congress shall ‘evolve a
progressive system of taxation.’ The constitutional provision has been interpreted to mean simply that ‘direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized.’ (E. FERNANDO, THE CONSTITUTION OF THE
PHILIPPINES 221 [Second ed. 1977]) Indeed, the mandate to Congress is not to prescribe, but to evolve, a progressive tax
system. Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited with the procla-
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7
mation of Art. VIII, §17 (1) of the 1973 Constitution from which the present Art. VI, §28 (1) was taken. Sales taxes are
also regressive. Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not impossible, to
avoid them by imposing such taxes according to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
regressive effects of this imposition by providing for zero rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of
the NIRC), while granting exemptions to other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC)
Same; Same; Judicial Review; The Court cannot strike down a law as unconstitutional simply because of its yokes. —It
has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a first-aid measure to resuscitate an
economy in distress. The Court is neither blind nor is it turning a deaf ear on the plight of the masses. But it does not have the
panacea for the malady that the law seeks to remedy. As in other cases, the Court cannot strike down a law as unconstitutional
simply because of its yokes. Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the
judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature may not correct, for instance,
those involving political questions. . . . Let us likewise disabuse our minds from the notion that the judiciary is the repository of
remedies for all political or social ills; We should not forget that the Constitution has judiciously allocated the powers of
government to three distinct and separate compartments; and that judicial interpretation has tended to the preservation of the
independence of the three, and a zealous regard of the prerogatives of each, knowing full well that one is not the guardian of the
others and that, for official wrong-doing, each may be brought to account, either by impeachment, trial or by the ballot box.
DAVIDE, JR., C.J., Separate Concurring and Dissenting Opinion:

Congress; Origin of Bills; Revenue Bills; Taxation; Value-Added Tax; It was beyond the ambit of the authority of the Senate to propose
amendments to provisions not covered by the House Bills or not related to the subject matter of the House Bills, which is VAT.— Obviously,
these provisions do not deal with VAT. It must be noted that the House Bills initiated amendments to provisions pertaining to VAT only.
Doubtless, the Senate has the constitutional power to
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8 ANNOTATED
concur with the amendments to the VAT provisions introduced in the House Bills or even to propose its own version of VAT measure.
But that power does not extend to initiation of other tax measures, such as introducing amendments to provisions on corporate income taxes,
percentage taxes, franchise taxes, and excise taxes like what the Senate did in these cases. It was beyond the ambit of the authority of the Senate
to propose amendments to provisions not covered by the House Bills or not related to the subject matter of the House Bills, which is VAT. To
allow the Senate to do so would be tantamount to vesting in it the power to initiate revenue bills—a power that exclusively pertains to the House
of Representatives under Section 24, Article VI of the Constitution, which provides: Sec. 24. All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives but
the Senate may propose or concur with amendments.
PUNO, J., Concurring and Dissenting Opinion:
Judicial Review; Requisites; Ripeness Doctrine; The power of judicial review under Article VIII, Section 5(2) of the 1987 Constitution is
limited to the review of “actual cases and controversies;” The basic rationale of the doctrine of ripeness is “to prevent the courts, through
premature adjudication, from entangling themselves in abstract disagreements.”—The power of judicial review under Article VIII, section 5(2)
of the 1987 Constitution is limited to the review of “actual cases and controversies.” As rightly stressed by retired Justice Vicente V. Mendoza,
this requirement gives the judiciary “the opportunity, denied to the legislature, of seeing the actual operation of the statute as it is applied to actual
facts and thus enables it to reach sounder judgment” and “enhances public acceptance of its role in our system of government.” It also assures that
the judiciary does not intrude on areas committed to the other branches of government and is confined to its role as defined by the Constitution.
Apposite thereto is the doctrine of ripeness whose basic rationale is “to prevent the courts, through premature adjudication, from entangling
themselves in abstract disagreements.” Central to the doctrine is the determination of “whether the case involves uncertain or contingent future
events that may not occur as anticipated, or indeed may not occur at all.” The ripeness requirement must be satisfied for each challenged legal
provision and parts of a statute so that those which
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9
are “not immediately involved are not thereby thrown open for a judicial determination of constitutionality.”
Same; Same; Same; Taxation; The power to adjust the tax rate given to the President is futuristic and may or may not be exercised—the
Court is therefore beseeched to render a conjectural judgment based on hypothetical facts.—It is manifest that the constitutional challenge to
sections 4 to 6 of R.A. No. 9337 cannot hurdle the requirement of ripeness. These sections give the President the power to raise the VAT rate to
12% on January 1, 2006 upon satisfaction of certain fact-based conditions. We are not endowed with the infallible gift of prophesy to know
whether these conditions are certain to happen. The power to adjust the tax rate given to the President is futuristic and may or may not be
exercised. The Court is therefore beseeched to render a conjectural judgment based on hypothetical facts. Such a supplication has to be rejected.
Congress; Bicameral Conference Committee; A Bicameral Conference Committee has limited powers and cannot be allowed to act as if
it were a “third house” of Congress.—With due respect, I submit that the most important constitutional issue posed by the petitions at bar relates
to the parameters of power of a Bicameral Conference Committee. Most of the issues in the petitions at bar arose because the Bicameral
Conference Committee concerned exercised powers that went beyond reconciling the differences between Senate Bill No. 1950 and House Bill
Nos. 3705 and 3555. In Tolentino v. Secretary of Finance, I ventured the view that a Bicameral Conference Committee has limited powers and
cannot be allowed to act as if it were a “third house” of Congress. I further warned that unless its roving powers are reigned in, a Bicameral
Conference Committee can wreck the lawmaking process which is a cornerstone of the democratic, republican regime established in our
Constitution. The passage of time fortifies my faith that there ought to be no legal u-turn on this preeminent principle.
Same; Same; It is only by strictly following the contours of powers of a Bicameral Conference Committee, as delineated by the rules of
the House and the Senate, that we can prevent said Committee from acting as a “third” chamber of Congress.—I respectfully submit that it
is only by strictly following the contours of powers of a Bicameral Conference Committee, as delineated by the rules of the House and the Senate,
that we can prevent said Committee from acting as a
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0 ANNOTATED
“third” chamber of Congress. Under the clear rules of both the Senate and House, its power can go no further than settling differences in
their bills or joint resolutions. Sections 88 and 89, Rule XIV of the Rules of the House of Representatives provide as follows: * * * Under both
rules, it is obvious that a Bicameral Conference Committee is a mere agent of the House or the Senate with limited powers. The House
contingent in the Committee cannot, on its own, settle differences which are substantial in character. If it is confronted with substantial
differences, it has to go back to the chamber that created it “for the latter’s appropriate action.” In other words, it must take the proper
instructions from the chambers that created it. It cannot exercise its unbridled discretion. Where there is no difference between the bills, it cannot
make any change. Where the difference is substantial, it has to return to the chamber of its origin and ask for appropriate instructions. It ought to
be indubitable that it cannot create a new law, i.e., that which has never been discussed in either chamber of Congress. Its parameters of power
are not porous, for they are hedged by the clear limitation that its only power is to settle differences in bills and joint resolutions of the two
chambers of Congress.
Same; Same; Amendments which did not harmonize conflicting provisions between the constituent bills of R.A. No. 9337 but are entirely
new and extraneous concepts which fall beyond the median thereof transgress the limits of the Bicameral Conference Committee’s authority and
must be struck down.—These amendments did not harmonize conflicting provisions between the constituent bills of R.A. No. 9337 but
are entirely new and extraneous concepts which fall beyond the median thereof. They transgress the limits of the Bicameral Conference
Committee’s authority and must be struck down. I cannot therefore subscribe to the thesis of the majority that “the changes introduced by the
Bicameral Conference Committee on disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions for it did not
inject any idea or intent that is wholly foreign to the subject embraced by the original provisions. ” Same; Same; Germaneness Rule; It is high
time to re-examine the test of germaneness proffered in Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)—the test of germaneness is
overly broad and is the fountainhead of mischief for it allows the Bicameral Conference Committee to change provisions in the bills of the House
and the
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Senate when they are not even in disagreement; The Constitution did not establish a Bicameral Conference Committee that can act as a
“third house” of Congress with super veto power over bills passed by the Senate and the House. —The majority further defends the
constitutionality of the above provisions by holding that “all the changes or modifications were germane to subjects of the provisions referred to
it for reconciliation.” With due respect, it is high time to re-examine the test of germaneness proffered in Tolentino. The test of germaneness
is overly broad and is the fountainhead of mischief for it allows the Bicameral Conference Committee to change provisions in the bills of the
House and the Senate when they are not even in disagreement. Worse still, it enables the Committee to introduce amendments which are entirely
new and have not previously passed through the coils of scrutiny of the members of both houses. The Constitution did not establish a Bicameral
Conference Committee that can act as a “third house” of Congress with super veto power over bills passed by the Senate and the House. We
cannot concede that super veto power without wrecking the delicate architecture of legislative power so carefully laid down in our Constitution.
The clear intent of our fundamental law is to install a lawmaking structurecomposed only of two houses whose members would thoroughly
debateproposed legislations in representation of the will of their respective constituents. The institution of this lawmaking structure
is unmistakablefrom the following provisions: (1) requiring that legislative power shall be vested in a bicameral legislature; (2) providing for
quorum requirements; (3) requiring that appropriation, revenue or tariff bills, bills authorizing increase of public debt, bills of local application,
and private bills originate exclusively in the House of Representatives; (4) requiring that bills embrace one subject expressed in the title thereof;
and (5) mandating that bills undergo three readings on separate days in each House prior to passage into law and prohibiting amendments on the
last reading thereof. A Bicameral Conference Committee with untrammeled powers will destroy this lawmaking structure. At the very least, it
will diminish the free and open debate of proposed legislations and facilitate the smuggling of what purports to be laws.
Same; Same; Republicanism; It cannot be overemphasized that in a republican form of government, laws can only be enacted by all the
duly elected representatives of the people—it cuts against conventional wisdom in democracy to lodge this power in the hands of a few
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2 ANNOTATED
or in the claws of a committee.—It cannot be overemphasized that in a republican form of government, laws can only be enacted
by all the duly elected representatives of the people. It cuts against conventional wisdom in democracy to lodge this power in the hands of a few
or in the claws of a committee. It is for these reasons that the argument that we should overlook the excesses of the Bicameral Conference
Committee because its report is anyway approved by both houses is a futile attempt to square the circle for an unconstitutional act is void and
cannot be redeemed by any subsequent ratification.
Same; Same; Same; No doomsday scenario will ever justify the thrashing of the Constitution—the Constitution is meant to be our rule
both in good times as in bad times.—In conclusion, I wish to stress that this is not the first time nor will it be last that arguments will be foisted
for the Court to merely wink at assaults on the Constitution on the ground of some national interest, sometimes clear and at other times inchoate.
To be sure, it cannot be gainsaid that the country is in the vortex of a financial crisis. The broadsheets scream the disconcerting news that our debt
payments for the year 2006 will exceed Pph1 billion daily for interest alone. Experts underscore some factors that will further drive up the debt
service expenses such as the devaluation of the peso, credit downgrades and a spike in interest rates. But no doomsday scenario will ever justify
the thrashing of the Constitution. The Constitution is meant to be our rule both in good times as in bad times. It is the Court’s uncompromising
obligation to defend the Constitution at all times lest it be condemned as an irrelevant relic.
PANGANIBAN, J., Separate Opinion:
Congress; Enrolled Bill Doctrine; The enrolled bill doctrine may be all-encompassing in some countries like Great Britain, but as
applied to our jurisdiction, it must yield to mandatory provisions of our 1987 Constitution.—I believe, however, that the enrolled bill doctrine is
not absolute. It may be all-encompassing in some countries like Great Britain, but as applied to our jurisdiction, it must yield to mandatory
provisions of our 1987 Constitution. The Court can take judicial notice of the form of government in Great Britain. It is unlike that in our country
and, therefore, the doctrine from which it originated could be modified accordingly by our Constitution. In fine, the enrolled bill doctrine applies
mainly to the internal
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3
rules and processes followed by Congress in its principal duty of lawmaking. However, when the Constitution imposes certain conditions,
restrictions or limitations on the exercise of congressional prerogatives, the judiciary has both the power and the duty to strike down
congressional actions that are done in plain contravention of such conditions, restrictions or limitations. Insofar as the present case is concerned,
the three most important restrictions or limitations to the enrolled bill doctrine are the “origination,” “no-amend-ment” and “three-reading” rules
which I will discuss later.
Same; Bicameral Conference Committee (BCC); The Bicameral Conference Committee created by Congress to iron out differences
between the Senate and the House of Representatives versions of the E-VAT bills is one such “branch or instrumentality of the govern-ment,”
over which this Court may exercise certiorari review to determine whether or not grave abuse of discretion has been committed; and,
specifically, to find out whether the constitutional conditions, restrictions and limitations on law-making have been violated.—The Bicameral
Conference Committee (BCC) created by Congress to iron out differences between the Senate and the House of Representatives versions of the
E-VAT bills is one such “branch or instrumentality of the government,” over which this Court may exercise certiorari review to determine
whether or not grave abuse of discretion has been committed; and, specifically, to find out whether the constitutional conditions, restrictions and
limitations on law-making have been violated. In general, the BCC has at least five options in performing its functions: (1) adopt the House
version in part or in toto, (2) adopt the Senate version in part or in toto, (3) consolidate the two versions, (4) reject non-conflicting provisions, and
(5) adopt completely new provisions not found in either version. This, therefore, is the simple question: In the performance of its function of
reconciling conflicting provisions, has the Committee blatantly violated the Constitution?
Same; Presidency; Separation of Powers; Control Power; Doctrine of Qualified Political Agency; I respectfully disagree with the
statements that, first, the Secretary of Finance is “acting as the agent of the legislative department” or an “agent of Congress” in determining
and declaring the event upon which its expressed will is to take effect; and, second, that the Secretary’s personality “is in reality but a projection
of that of Congress”—the Secretary of Finance is not an
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4 ANNOTATED
alter ego of Congress, but of the President.—I concur with the ponencia in that there was no undue delegation of legislative power in the
increase from 10 percent to 12 percent of the VAT rate. I respectfully disagree, however, with the statements therein that, first, the secretary of
finance is “acting as the agent of the legislative department” or an “agent of Congress” in determining and declaring the event upon which its
expressed will is to take effect; and, second, that the secretary’s personality “is in reality but a projection of that of Con-gress.” The secretary of
finance is not an alter ego of Congress, but of the President. The mandate given by RA 9337 to the secretary is not equipollent to an authority to
make laws. In passing this law, Congress did not restrict or curtail the constitutional power of the President to retain control and supervision over
the entire Executive Department. The law should be construed to be merely asking the President, with a recommendation from the President’s
alter ego in finance matters, to determine the factual bases for making the increase in VAT rate operative. Indeed, as I have mentioned earlier, the
fact-finding condition is a mere administrative, not legislative, function.
Same; Bicameral Conference Committee; I respectfully submit that the amendments made by the BCC (that were culled from the Senate
version) regarding income taxes are not legally germane to the subject matter of the House bills.—I respectfully submit that the amendments
made by the BCC (that were culled from the Senate version) regarding income taxes are not legally germane to the subject matter of the House
bills. Revising the income tax rates on domestic, resident foreign and nonresident foreign corporations; increasing the tax credit against taxes due
from nonresident foreign corporations on intercorporate dividends; and reducing the allowable deduction for interest expense are legally
unrelated and not germane to the subject matter contained in the House bills; they violate the origination principle.
Taxation; Value-Added Tax (VAT); It was Maurice Lauré, a French engineer, who invented the VAT.—It was Maurice Lauré, a French
engineer, who invented the VAT. In 1954, he had the idea of imposing an indirect tax on consumption, called taxe sur la valeur ajoutée, which
was quickly adopted by the Direction Générale des Impost, the new French tax authority of which he became joint director. Consequently,
taxpayers at all levels in the production process,
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5
rather than retailers or tax authorities, were forced to administer and account for the tax themselves.
Same; Same; Due Process; Vested Rights; There is no vested right in a deferred input tax—it is a mere statutory privilege which the
State may modify or withdraw, being merely an asset granted by operation of law.—There is no vested right in a deferred input tax account; it is
a mere statutory privilege. The State may modify or withdraw such privilege, which is merely an asset granted by operation of law. Moreover,
there is no vested right in generally accepted accounting principles. These refer to accounting concepts, measurement techniques, and standards
of presentation in a company’s financial statements, and are not rooted in laws of nature, as are the laws of physical science, for these are merely
developed and continually modified by local and international regulatory accounting bodies. To state otherwise and recognize such asset account
as a vested right is to limit the taxing power of the State. Unlimited, plenary, comprehensive and supreme, this power cannot be unduly restricted
by mere creations of the State.
Same; Same; Same; Same; In the exercise of its inherent power to tax, the State validly interferes with the right to property of persons,
natural or artificial; The reduction of tax credits is a question of economic policy, not of legal perlustration. —Petitioners have not been denied
due process or, as I have illustrated earlier, equal protection. In the exercise of its inherent power to tax, the State validly interferes with the right
to property of persons, natural or artificial. Those similarly situated are affected in the same way and treated alike, “both as to privileges
conferred and liabilities enforced.” RA 9337 was enacted precisely to achieve the objective of raising revenues to defray the necessary expenses
of government. The means that this law employs are reasonably related to the accomplishment of such objective, and not unduly oppressive. The
reduction of tax credits is a question of economic policy, not of legal perlustration. Its determination is vested in Congress, not in this Court.
Since the purpose of the law is to raise revenues, it cannot be denied that the means employed is reasonably related to the achievement of that
purpose. Moreover, the proper congressional procedure for its enactment was followed; neither public notice nor public hearings were denied.
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6 ANNOTATED
Same; Same; Unlike the laws of physical science, the VAT system can always be modified to suit modern fiscal demands.—It is contended
that the VAT should be proportional in nature. I submit that this proportionality pertains to the rate imposable, not the credit allowable. Private
enterprises are subjected to a proportional VAT rate, but VAT credits need not be. The VAT is, after all, a human concept that is neither
immutable nor invariable. In fact, it has changed after it was adopted as a system of indirect taxation by other countries. Again unlike the laws of
physical science, the VAT system can always be modified to suit modern fiscal demands. The State, through the Legislative Department, may
even choose to do away with it and revert to our previous system of turnover taxes, sales taxes and compensating taxes, in which credits may be
disallowed altogether.
YNARES-SANTIAGO, J., Concurring and Dissenting Opinion:
Congress; Bicameral Conference Committee; Judicial Review; If in the exercise of this rule-making power, Congress failed to set
parameters in the functions of the Bicameral Conference Committee and allowed the latter unbridled authority to perform acts which Congress
itself is prohibited, like the passage of a law without undergoing the requisite three-reading and the so-called no-amendment rule, then the same
amount to grave abuse of discretion which this Court is empowered to correct under its expanded certiorari jurisdiction.— Section 16(3), Article
VI of the 1987 Constitution explicitly allows each House to determine the rules of its proceedings. However, the rules must not contravene
constitutional provisions. The rule-making power of Congress should take its bearings from the Constitution. If in the exercise of this rule-
making power, Congress failed to set parameters in the functions of the committee and allowed the latter unbridled authority to perform acts
which Congress itself is prohibited, like the passage of a law without undergoing the requisite three-reading and the so-called no-amendment rule,
then the same amount to grave abuse of discretion which this Court is empowered to correct under its expanded certiorari jurisdiction.
Notwithstanding the doctrine of separation of powers, therefore, it is the duty of the Court to declare as void a legislative enactment, either from
want of constitutional power to enact or because the constitutional forms or conditions have not been observed.
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Same; Same; I fully subscribe to the theory advanced in the Dissenting Opinion of Chief Justice Hilario G. Davide, Jr. in Tolentino v.
Secretary of Finance that the authority of the bicameral conference committee was limited to the reconciliation of disagreeing provisions or the
resolution of differences or inconsistencies—the Bicameral Conference Committee is authorized only to adopt either the version of the House bill
or the Senate bill, or adopt neither.—The Rules of the House of Representatives and the Rules of the Senate provide that in the event there is
disagreement between the provisions of the House and Senate bills, the differences shall be settled by a bicameral conference committee. By this,
I fully subscribe to the theory advanced in the Dissenting Opinion of Chief Justice Hilario G. Davide, Jr. in Tolentino v. Secretary of Finance that
the authority of the bicameral conference committee was limited to the reconciliation of disagreeing provisions or the resolution of differences or
inconsistencies. Thus, it could only either (a) restore, wholly or partly, the specific provisions of the House bill amended by the Senate bill, (b)
sustain, wholly or partly, the Senate’s amendments, or (c) by way of a compromise, to agree that neither provisions in the House bill amended by
the Senate nor the latter’s amendments thereto be carried into the final form of the former.Otherwise stated, the Bicameral Conference
Committee is authorized only to adopt either the version of the House bill or the Senate bill, or adopt neither. It cannot, as the ponencia proposed,
“try to arrive at a compromise,” such as introducing provisions not included in either the House or Senate bill, as it would allow a mere ad
hoc committee to substitute the will of the entire Congress and without undergoing the requisite three-reading, which are both constitutionally
proscribed. To allow the committee unbridled discretion to overturn the collective will of the whole Congress defies logic considering that the
bills are passed presumably after study, deliberation and debate in both houses. A lesser body like the Bicameral Conference Committee should
not be allowed to substitute its judgment for that of the entire Congress, whose will is expressed collectively through the passed bills.
Same; Same; No-Amendment Rule; The ponencia’s submission that despite its limited authority, the Bicameral Conference Committee
could “compromise the disagreeing provisions” by substituting it with its own version clearly violates the three-reading requirement, as the
committee’s version would no longer undergo the same since it would be immediately put into vote by the respective houses.—Before
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8 ANNOTATED
a bill becomes a law, it must pass three readings. Hence, the ponencia’ssubmission that despite its limited authority, the Bicameral
Conference Committee could “compromise the disagreeing provisions” by substituting it with its own version—clearly violate the three-reading
requirement, as the committee’s version would no longer undergo the same since it would be immediately put into vote by the respective houses.
In effect, it is not a bill that was passed by the entire Congress but by the members of the ad hoc committee only, which of course is
constitutionally infirm. I disagree that the no-amendment rule referred only to “the procedure to be followed by each house of Congress with
regard to bills initiated in each of said respective houses” because it would relegate the no-amendment rule to a mere rule of procedure. To my
mind, the no-amendment rule should be construed as prohibiting the Bicameral Conference Committee from introducing amendments and
modifications to non-disagreeing provisions of the House and Senate bills. In sum, the committee could only either adopt the version of the
House bill or the Senate bill, or adopt neither. As Justice Reynato S. Puno said in his Dissenting Opinion in Tolentino v. Secretary of Finance,
there is absolutely no legal warrant for the bold submission that a Bicameral Conference Committee possesses the power to add/delete provisions
in bills already approved on third reading by both Houses or an ex post veto power.
SANDOVAL-GUTIERREZ, J., Concurring and Dissenting Opinion:
Congress; Taxation; Separation of Powers; Delegation of Powers; Taxation is a power that is purely legislative and which the central
legislative body cannot delegate either to the executive or judicial department of government without infringing upon the theory of separation of
powers.—Taxation is an inherent attribute of sovereignty. It is a power that is purely legislative and which the central legislative body cannot
delegate either to the executive or judicial department of government without infringing upon the theory of separation of powers. The rationale of
this doctrine may be traced from the democratic principle of “no taxation without representation.” The power of taxation being so pervasive, it is
in the best interest of the people that such power be lodged only in the Legislature. Composed of the people’s representatives, it is “closer to the
pulse of the people and . . . are therefore in a better position to determine both the extent of the legal burden the people are capable of
49

9
bearing and the benefits they need.” Also, this set-up provides security against the abuse of power. As Chief Justice Marshall said: “In
imposing a tax, the legislature acts upon its constituents. The power may be abused; but the interest, wisdom, and justice of the representative
body, and its relations with its constituents, furnish a sufficient security.” Consequently, Section 24, Article VI of our Constitution enshrined the
principle of “no taxation without representation” by providing that “all . . . revenue bills . . . shall originate exclusively in the House of
Representatives, but the Senate may propose or concur with amendments.” This provision generally confines the power of taxation to the
Legislature.
Same; Same; Same; Same; Value-Added Tax; R.A. No. 9337, in granting to the President the stand-by authority to increase the VAT rate
from 10% to 12%, the Legislature abdicated its power by delegating it to the President.—R.A. No. 9337, in granting to the President the stand-
by authority to increase the VAT rate from 10% to 12%, the Legislature abdicated its power by delegating it to the President. This is
constitutionally impermissible. The Legislature may not escape its duties and responsibilities by delegating its power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. As Judge
Cooley enunciated: “One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must
remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment,
wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which
the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people
have seen fit to confide this sovereign trust.”
Same; Same; Same; Same; Same; Tariff Powers; If the intention of the Framers of the Constitution is to permit the delegation of the
power to fix tax rates or VAT rates to the President, such could have been easily achieved by the mere inclusion of the term “tax rates” or “VAT
rates” in the enumeration.—Noteworthy is the absence of tax rates or VAT rates in the enumeration. If the intention of the Fram-
50

0 ANNOTATED
ers of the Constitution is to permit the delegation of the power to fix tax rates or VAT rates to the President, such could have been easily
achieved by the mere inclusion of the term “tax rates” or “VAT rates” in the enumeration. It is a dictum in statutory construction that what is
expressed puts an end to what is implied. Expressium facit cessare tacitum. This is a derivative of the more familiar maxim express mention is
implied exclusion or expressio unius est exclusio alterius.Considering that Section 28 (2), Article VI expressly speaks only of “tariff rates,
import and export quotas, tonnage and wharfage dues and other duties and imposts,” by no stretch of imagination can this enumeration be
extended to include the VAT.
Same; Same; Same; Same; Same; Control Power; The two conditions set forth by law would have been sufficient had it not been for the
fact that the President, being at the helm of the entire officialdom, has more than enough power of control to bring about the existence of such
conditions—that the President’s exercise of an authority is practically within her control is tantamount to giving no conditions at all.—At first
glance, the two conditions may appear to be definite standards sufficient to guide the President. However, to my mind, they are ineffectual and
malleable as they give the President ample opportunity to exercise her authority in arbitrary and discretionary fashion. The two conditions set
forth by law would have been sufficient had it not been for the fact that the President, being at the helm of the entire officialdom, has more than
enough power of control to bring about the existence of such conditions. Obviously, R.A. No. 9337 allows the President to determine for herself
whether the VAT rate shall be increased or not at all. The fulfillment of the conditions is entirely placed in her hands. If she wishes to increase the
VAT rate, all she has to do is to strictly enforce the VAT collection so as to exceed the 2 4/5% ceiling. The same holds true with the national
government deficit. She will just limit government expenses so as not to exceed the 1 1/2% ceiling. On the other hand, if she does not wish to
increase the VAT rate, she may discourage the Secretary of Finance from making the recommendation. That the President’s exercise of an
authority is practically within her control is tantamount to giving no conditions at all. I believe this amounts to a virtual surrender of legislative
power to her. It must be stressed that the validity of a law is not tested by what has been done but by what may be done under its provisions.
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Same; Taxation; One of the principles of sound taxation is fiscal adequacy—neither an excess nor a deficiency of revenue vis-à-vis the
needs of government would be in keeping with the principle; Our Senators must have forgotten that for every increase of taxes, the burden
always redounds to the people; Taxation is not a power to be exercised at one’s whim.—Why authorize the President to increase the VAT rate on
the premise alone that she deserves an “incentive” or “reward”? Indeed, why should she be rewarded for performing a duty reposed upon her by
law? The rationale stated by Senator Recto is flawed. One of the principles of sound taxation is fiscal adequacy. The proceeds of tax revenue
should coincide with, and approximate the needs of, government expenditures. Neither an excess nor a deficiency of revenue vis-à–-vis the
needs of government would be in keeping with the principle. Equating the grant of authority to the President to increase the VAT rate with the
grant of additional allowance to a studious son is highly inappropriate. Our Senators must have forgotten that for every increase of taxes, the
burden always redounds to the people. Unlike the additional allowance given to a studious son that comes from the pocket of the granting parent
alone, the increase in the VAT rate would be shouldered by the masses. Indeed, mandating them to pay the increased rate as an award to the
President is arbitrary and unduly oppressive. Taxation is not a power to be exercised at one’s whim.
Same; Origination Rule; Words and Phrases; It can be reasonably concluded that when Section 24, Article VI provides that revenue bills
shall originate exclusively from the House of Representatives, what the Constitution mandates is that any revenue statute must begin or start
solely and only in the House.—The adverb “exclusively” means “in an exclusive manner.” The term “exclusive” is defined as “excluding or
having power to exclude; limiting to or limited to; single, sole, undivided, whole.” In one case, this Court define the term “exclusive” as
“possessed to the exclusion of others; appertaining to the subject alone, not including, admitting, or pertaining to another or others.” As for the
term “originate,” its meaning are “to cause the beginning of; to give rise to; to initiate; to start on a course or journey; to take or have origin; to
be deprived; arise; begin or start.” With the foregoing definitions in mind, it can be reasonably concluded that when Section 24, Article VI
provides that revenue bills shall originate exclusively from the House of Representatives, what the Constitution mandates is that any revenue
statute must
52

2 ANNOTATED
begin or start solely and only in the House. Not the Senate. Not both Chambers of Congress. But there is more to it than that. It also
means that “an act for taxation must pass the House first.” It is no consequence what amendments the Senate adds. A perusal of the legislative
history of R.A. No. 9337 shows that it did not “exclusively originate” from the House of Representatives.
Same; Same; The Senate in passing Senate Bill No. 1950, a tax measure, merely took into account House Bills No. 3555 and 3705, but
did not concur with or amend either or both bills.—Senate Bill No. 1950 is not based on any bill passed by the House of Representatives. It has a
legislative identity and existence separate and apart from House Bills No. 3555 and 3705. Instead of concurring or proposing amendments, Senate
Bill No. 1950 merely “takes into consideration” the two House Bills. To take into consideration means “to take into account.” Consideration, in
this sense, means “deliberation, attention, observation or contemplation. Simply put, the Senate in passing Senate Bill No. 1950, a tax measure,
merely took into account House Bills No. 3555 and 3705, but did not concur with or amend either or both bills. As a matter of fact, it did not even
take these two House Bills as a frame of reference. In Tolentino, the majority subscribed to the view that Senate may amend the House revenue
bill by substitution or by presenting its own version of the bill. In either case, the result is “two bills on the same subject.” This is the source of the
“germaneness” rule which states that the Senate bill must be germane to the bill originally passed by the House of Representatives. In Tolentino,
this was not really an issue as both the House and Senate Bills in question had one subject—the VAT.
Same; Same; Germaneness Rule; The Senate could not, without violating the germaneness rule and the principle of “exclusive
origination,” propose tax matters not included in the House Bills.—The facts obtaining here is very much different from Tolentino. It is very
apparent that House Bills No. 3555 and 3705 merely intended to amend Sections 106, 107, 108, 109, 110, 111 and 114 of the NIRC of 1997,
pertaining to the VAT provisions. On the other hand, Senate Bill No. 1950 intended to amend Sections 27, 28, 34, 106, 108, 109, 110, 112, 113,
114, 116, 117, 119, 121, 125, 148, 151, 236, 237 and 288 of the NIRC, pertaining to matters outside of VAT, such as income tax, percentage tax,
franchise tax, taxes on banks and other financial intermediaries, excise taxes, etc. Thus, I am of the position
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that the Senate could not, without violating the germaneness rule and the principle of “exclusive origination,” propose tax matters not
included in the House Bills.
CALLEJO, SR., J., Concurring and Dissenting Opinion:

Congress; Bicameral Conference Committee; Foreign Jurisprudence; There are significant textual differences between the US Federal
Constitution’s and our Constitution’s prescribed congressional procedure for enacting laws—the degree of freedom accorded by the US Federal
Constitution to the US Congress markedly differ from that accorded by our Constitution to the Philippine Congress. —To my mind, this
unqualified adherence by the majority opinion in Tolentino, and now by the ponencia, to the practice of the US Congress and its conference
committee system ought to be re-examined. There are significant textual differences between the US Federal Constitution’s and our
Constitution’s prescribed congressional procedure for enacting laws. Accordingly, the degree of freedom accorded by the US Federal
Constitution to the US Congress markedly differ from that accorded by our Constitution to the Philippine Congress.
Same; Three-Reading Rule; No-Amendment Rule; The “three-reading” and “no-amendment” rules, absent in the US Federal
Constitution, but expressly mandated by Article VI, Section 26(2) of our Constitution are mechanisms instituted to remedy the “evils” inherent in
a bicameral system of legislature, including the conference committee system.—The “three-reading” and “no-amendment” rules, absent in the US
Federal Constitution, but expressly mandated by Article VI, Section 26(2) of our Constitution are mechanisms instituted to remedy the “evils”
inherent in a bicameral system of legislature, including the conference committee system. Sadly, the ponencia’s refusal to apply Article VI,
Section 26(2) of the Constitution on the Bicameral Conference Committee and the amendments it introduced to R.A. No. 9337 has “effectively
dismantled” the “three-reading rule” and “no-amendment rule.”
Same; Same; Same; The proscription on amendments upon the last reading is intended to subject all bills and their amendments to
intensive deliberation by the legislators and the ample ventilation of issues to afford the public an opportunity to express their opinions or
objections thereon; Analogously, it is said that the “three-reading rule” operates “as a self-binding mechanism that allows the legisla-
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4 ANNOTATED
ture to guard against the consequences of its own future passions, myopia, or herd behavior.—It is well to recall the rationale for the “no-
amendment rule” and the “three-reading rule” in Article VI, Section 26(2) of the Constitution. The proscription on amendments upon the last
reading is intended to subject all bills and their amendments to intensive deliberation by the legislators and the ample ventilation of issues to
afford the public an opportunity to express their opinions or objections thereon. Analogously, it is said that the “three-reading rule” operates “as a
self-binding mechanism that allows the legislature to guard against the consequences of its own future passions, myopia, or herd behavior. By
requiring that bills be read and debated on successive days, legislature may anticipate and forestall future occasions on which it will be seized by
deliberative pathologies.” As Jeremy Bentham, a noted political analyst, put it: “[t]he more susceptible a people are of excitement and being led
astray, so much the more ought they to place themselves under the protection of forms which impose the necessity of reflection, and prevent
surprises.”
AZCUNA, J., Concurring and Dissenting Opinion:
Congress; Separation of Powers; Delegation of Powers; There is here no abdication by Congress of its power to fix the rate of the tax
since the rate increase provided under the law, from 10% to 12%, is definite and certain to occur, effective 1 January 2006. —The Gross
Domestic Product for 2005 is estimated at P5.3 Trillion pesos. The tax effort of the present VAT is now at 1.5%. The national budgetary deficit
against the GDP is now at 3%. So to reduce the deficit to 1.5% from 3%, one has to increase the tax effort from VAT, now at 1.5%, to at least
3%, thereby exceeding the 2 4/5 percent ceiling in condition (i), making condition (i) happen. If, on the other hand, this is not done, then
condition (ii) happens—the budget deficit remains over 1.5%. What is the result of this? The result is that in reality, the law does not impose any
condition, or the rate increase thereunder, from 10% to 12%, effective January 1, 2006, is unconditional. For a condition is an event that may or
may not happen, or one whose occurrence is uncertain. Now while condition (i) is indeed uncertain and condition (ii) is likewise uncertain, the
combination of both makes the occurrence of one of them certain. Accordingly, there is here no abdication by Congress of its power to fix the rate
of the tax since the rate increase provided under the law, from 10% to 12%, is definite
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and certain to occur, effective January 1, 2006. All that the President will do is state which of the two conditions occurred and thereupon
implement the rate increase.
Same; Germaneness Rule; I would rather give the necessary leeway to Congress, as long as the changes are germane to the bill being
changed, the bill which originated from the House of Representatives, and these are so, since these were precisely the mitigating measures that
go hand-on-hand with E-VAT, and are, therefore, essential—and hopefully sufficient—means to enable our people to bear the sacrifices they are
being asked to make; The provisions on corporate income taxes, which are not germane to the E-VAT law, are not found in the Senate and House
bills.—The introduction of the mitigating or cushioning measures through the Senate or through the Bicameral Conference Committee, is also
being questioned by petitioners as unconstitutional for violating the rule against amendments after third reading and the rule that tax measures
must originate exclusively in the House of Representatives (Art. VI, Secs. 24 and 26 [2], Constitution). For my part, I would rather give the
necessary leeway to Congress, as long as the changes are germane to the bill being changed, the bill which originated from the House of
Representatives, and these are so, since these were precisely the mitigating measures that go hand-on-hand with the E-VAT, and are, therefore,
essential—and hopefully sufficient—means to enable our people to bear the sacrifices they are being asked to make. Such an approach is in
accordance with the Enrolled Bill Doctrine that is the prevailing rule in this jurisdiction. (Tolentino v. Secretary of Finance, 249 SCRA 628
[1994]). The exceptions I find are the provisions on corporate income taxes, which are not germane to the E-VAT law, and are not found in the
Senate and House bills.
TINGA, J., Dissenting and Concurring Opinion:
Taxation; Value-Added Tax; Judicial Review; Due Process; Taxes may be inherently punitive, but when the fine line between damage
and destruction is crossed, the courts must step forth and cut the hangman’s noose. —The E-VAT Law, as it stands, will exterminate our
country’s small to medium enterprises. This will be the net effect of affirming Section 8 of the law, which amends Sections 110 of the National
Internal Revenue Code (NIRC) by imposing a seventy percent (70%) cap on the creditable input tax a VAT-registered person may apply every
quarter and a mandatory sixty (60)-month
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6 ANNOTATED
amortization period on the input tax on goods purchased or imported in a calendar month if the acquisition cost of such goods exceeds
One Million Pesos (P1,000,000.00). Taxes may be inherently punitive, but when the fine line between damage and destruction is crossed, the
courts must step forth and cut the hangman’s noose. Justice Holmes once confidently asserted that “the power to tax is not the power to destroy
while this Court sits,” and we should very well live up to this expectation not only of the revered Holmes, but of the Filipino people who rely on
this Court as the guardian of their rights. At stake is the right to exist and subsist despite taxes, which is encompassed in the due process clause.
Same; Same; Origination Rule; Article VI, Section 24 of the Constitution, also known as the origination clause, derives origin from
British practice—from the assertion that the power to tax the public at large must reside in the representatives of the people, the principle
evolved that money bills must originate in the House of Commons and may not be amended by the House of Lords; In our country though, both
members of the House and Senate are directly elected by the people, hence the vitality of the original conception of the rule has somewhat lost
luster.—Section 24 is also known as the origination clause, which derives origin from British practice. From the assertion that the power to tax
the public at large must reside in the representatives of the people, the principle evolved that money bills must originate in the House of
Commons and may not be amended by the House of Lords. The principle was adopted across the shores in the United States, and was famously
described by James Madison in The Federalist Papers as follows: This power over the purse, may in fact be regarded as the most complete and
effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and
for carrying into effect every just and salutary measure. There is an eminent difference from the British system from which the principle emerged,
and from our own polity. To this day, only members of the British House of Commons are directly elected by the people, with the members of the
House of Lords deriving their seats from hereditary peerage. Even in the United States, members of the Senate were not directly elected by the
people, but chosen by state legislatures, until the adoption of the Seventeenth Amendment in 1913. Hence, the rule assured the British and
American people that tax legislation arises with the consent of the sovereign people,
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through their directly elected representatives. In our country though, both members of the House and Senate are directly elected by the
people, hence the vitality of the original conception of the rule has somewhat lost luster.
Same; Same; Bicameral Conference Committee; Germaneness Rule; I agree that any amendment made by the Bicameral Conference
Committee that is not germane to the subject matter of the House or Senate Bills is not valid.—Tolentino adduced the principle, adopted from
American practice, that the version as approved by the Bicameral Conference Committee need only be germane to the subject of the House and
Senate bills in order to be valid. The majority, in applying the test of germaneness, upholds the contested provisions of the E-VAT Law. Even the
members of the Court who prepared to strike down provisions of the law applying germaneness nonetheless accept the basic premise that such
test is controlling. I agree that any amendment made by the Bicameral Conference Committee that is not germane to the subject matter of the
House or Senate Bills is not valid. It is the only valid ground by which an amendment introduced by the Bicameral Conference Committee may
be judicially stricken.
Same; Same; Same; Same; I deem it unduly restrictive on the plenary powers of Congress to legislate, to coerce the body to adhere to
judge-made standards, such as a standard of “legal germaneness.”— The germaneness standard which should guide Congress or the Bicameral
Conference Committee should be appreciated in its normal but total sense. In that regard, my views contrast with that of Justice Panganiban, who
asserts that provisions that are not “legally germane” should be stricken down. The legal notion of germaneness is just but one component, along
with other factors such as economics and politics, which guides the Bicameral Conference Committee, or the legislature for that matter, in the
enactment of laws. After all, factors such as economics or politics are expected to cast a pervasive influence on the legislative process in the first
place, and it is essential as well to allow such “non-legal” elements to be considered in ascertaining whether Congress has complied with the
criteria of germaneness. Congress is a political body, and its rationale for legislating may be guided by factors other than established legal
standards. I deem it unduly restrictive on the plenary powers of Congress to legislate, to coerce the body to adhere to judge-made standards,
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8 ANNOTATED
such as a standard of “legal germaneness.” The Constitution is the only legal standard that Congress is required to abide by in its
enactment of laws.
Same; Same; Same; Same; It would be myopic to consider that the subject matter of the House Bill is solely the VAT system, rather than
the generation of revenue—the mere fact that the law is popularly known as the E-VAT Law, or that most of its provisions pertain to the VAT, or
indirect taxes, does not mean that any and all amendments which are introduced by the Bicameral Conference Committee must pertain to the
VAT system.—I cannot agree with the position maintained by the Chief Justice, Justices Panganiban and Azcuna that the provisions of the law
that do not pertain to VAT should be stricken as unconstitutional. These would include, for example, the provisions raising corporate income
taxes. The Bicameral Conference Committee, in evaluating the proposed amendments, necessarily takes into account not just the provisions
relating to the VAT, but the entire revenue generating mechanism in place. If, for example, amendments to non-VAT related provisions of the
NIRC were intended to offset the expanded coverage for the VAT, then such amendments are germane to the purpose of the House and Senate
Bills. Moreover, it would be myopic to consider that the subject matter of the House Bill is solely the VAT system, rather than the generation of
revenue. The majority has sufficiently demonstrated that the legislative intent behind the bills that led to the E-VAT Law was the generation of
revenue to counter the country’s dire fiscal situation. The mere fact that the law is popularly known as the E-VAT Law, or that most of its
provisions pertain to the VAT, or indirect taxes, does not mean that any and all amendments which are introduced by the Bicameral Conference
Committee must pertain to the VAT system.
Same; Same; Same; Same; Municipal Corporations; Local Government Units; Section 21 of the law, which was not contained in either
the House or Senate Bills, imposes restrictions on the use by local government units of their incremental revenue from the VAT—these
restrictions are alien to the principal purposes of revenue generation, or the purposes of restructuring the VAT system.—I do believe that the test
of germaneness was violated by the E-VAT Law in one regard. Section 21 of the law, which was not contained in either the House or Senate
Bills, imposes restrictions on the use by local
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government units of their incremental revenue from the VAT. These restrictions are alien to the principal purposes of revenue generation,
or the purposes of restructuring the VAT system. I could not see how the provision, which relates to budgetary allocations, is germane to the E-
VAT Law. Since it was introduced only in the Bicam-eral Conference Committee, the test of germaneness is essential, and the provision does not
pass muster. I join Justice Puno and the Chief Justice in voting to declare Section 21 as unconstitutional.
Same; Same; Same; The deletion of the two disparate “no pass on” provisions which were approved by the House in one instance, and
only by the Senate in the other, remains in the sphere of compromise that ultimately guides the approval of the final version.—I also offer this
brief comment regarding the deletion of the so-called “no pass on” provisions, which several of my colleagues deem unconstitutional. Both the
House and Senate Bills contained these provisions that would prohibit the seller/producer from passing on the cost of the VAT payments to the
consumers. However, an examination of the said bills reveal that the “no pass on” provisions in the House Bill affects a different subject of
taxation from that of the Senate Bill. In the House Bill No. 3705, the taxpayers who are prohibited from passing on the VAT payments are the
sellers of petroleum products and electricity/power generation companies. In Senate Bill No. 1950, no prohibition was adopted as to sellers of
petroleum products, but enjoined therein are electricity/power generation companies but also transmission and distribution companies. I consider
such deletions as valid, for the same reason that I deem the amendments valid. The deletion of the two disparate “no pass on” provisions which
were approved by the House in one instance, and only by the Senate in the other, remains in the sphere of compromise that ultimately guides the
approval of the final version. Again, I point out that even while the two provisions may have been originally approved by the House and Senate
respectively, their subsequent deletion by the Bicameral Conference Committee is still subject to approval by both chambers of Congress when
the final version is submitted for deliberation and voting.
Same; Same; Same; An outright declaration that the deletion of the two elementally different “no-pass on” provisions is
unconstitutional, is of dubious efficacy in this case.—An outright declaration that the deletion of the two elementally different “no-pass on”
provi-
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sions is unconstitutional, is of dubious efficacy in this case. Had such pronouncement gained endorsement of a majority of the Court, it
could not result in the ipso facto restoration of the provision, the omission of which was ultimately approved in both the House and Senate.
Moreover, since the House version of the “no pass on” is quite different from that of the Senate, there would be a question as to whether the
House version, the Senate version, or both versions would be reinstated. And of course, if it were the Court which would be called upon to
choose, such would be way beyond the bounds of judicial power. Indeed, to intimate that the Court may require Congress to reinstate a provision
that failed to meet legislative approval would result in a blatant violation of the principle of separation of powers, with the Court effectively
dictating to Congress the content of its legislation. The Court cannot simply decree to Congress what laws or provisions to enact, but is limited to
reviewing those enactments which are actually ratified by the legislature.
Same; Same; Due Process; It is difficult though to put into quantifiable terms how onerous a taxation statute must be before it
contravenes the due process clause.—Sison pronounces more concretely how a tax statute may contravene the due process clause. Arbitrariness,
confiscation, overstepping the state’s jurisdiction, and lack of a public purpose are all grounds for nullity encompassed under the due process
invocation. Yet even these more particular standards as enunciated in Sison are quite exacting, and difficult to reach. Even the constitutional
challenge posed in Sison failed to pass muster. The majority cites Sisonin asserting that due process and equal protection are broad standards
which need proof of such persuasive character to lead to such a conclusion. It is difficult though to put into quantifiable terms how onerous a
taxation statute must be before it contravenes the due process clause. After all, the inherent nature of taxation is to cause pain and injury to the
taxpayer, albeit for the greater good of society. Perhaps whatever collective notion there may be of what constitutes an arbitrary, confiscatory,
and unreasonable tax might draw more from the fairy tale/legend traditions of absolute monarchs and the oppressed peasants they tax. Indeed, it
is easier to jump to the conclusion that a tax is oppressive and unfair if it is imposed by a tyrant or an authoritarian state.
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Same; Same; Same; In testing the validity of a tax statute as against the due process clause, the Court should go beyond a facial
examination of the statute, and seek to understand how exactly it would operate.—Could an arbitrary, confiscatory or unreasonable tax actually
be enacted by a democratic state such as ours? Of course it could, but these would exist in more palatable guises. In a democratic society wherein
statutes are enacted by a representative legislature only after debate and deliberation, tax statutes will most likely, on their face, seem fair and
even-handed. After all, if Congress passes a tax law that on facial examination is obviously harsh and unfair, it faces the wrath of the voting
public, to say nothing of the media. In testing the validity of a tax statute as against the due process clause, I think that the Court should go
beyond a facial examination of the statute, and seek to understand how exactly it would operate. The express terms of a statute, especially tax
laws, are usually inadequate in spelling out the practical effects of its implementation. The devil is usually in the details.
Same; Same; Same; We should not cede ground to those transgressions of the people’s fundamental rights simply because the
mechanism employed to violate constitutional guarantees is steeped in disciplines not normally associated with the legal profession.—The degree
of difficulty involved of judicial review of tax laws has increased with the growing complexities of business, economic and accounting practices.
These are sciences which laymen are not normally equipped by their general education to fully grasp, hence the possible insecurity on their part
when confronted with such questions on these fields. However, we should not cede ground to those transgressions of the people’s fundamental
rights simply because the mechanism employed to violate constitutional guarantees is steeped in disciplines not normally associated with the
legal profession. Venality cannot be allowed to triumph simply due to its sophistication. This petition imputes in the E-VAT Law unconstitutional
oppression of the fatal variety, but in order to comprehend exactly how and why that is so, one has to delve into the complex milieu of the VAT
system. The party alleging the law’s unconstitutionality of course has the burden to demonstrate the violations in understandable terms, but if
such proof is presented, the Court’s duty is to engage accordingly.
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Same; Same; Same; Judicial Review; I do not see as an impediment to the annulment of a tax law the fact that it has yet to be
implemented, or the fear that doing so constitutes an undue attack on the wisdom, rather than the legality of a statute. —I do not see as an
impediment to the annulment of a tax law the fact that it has yet to be implemented, or the fear that doing so constitutes an undue attack on the
wisdom, rather than the legality of a statute. However, my position in this petition has been challenged on those grounds, and I see it fit to refute
these preemptive allegations before delving into the operative aspect of the E-VAT Law. If there is cause to characterize my arguments as
speculative, it is only because the E-VAT Law has yet to be implemented. No person as of yet can claim to have sustained actual injury by reason
of the implementation of the assailed provisions in G.R. No. 168461. Yet this should not mean that the Court is impotent from declaring a
provision of law as violative of the due process clause if it is clear that its implementation will cause the illegal deprivation of life, liberty or
property without due process of law. This is especially so if, as in this case, the injury is of mathematical certainty, and the extent of the loss
quantifiable through easy reference to the most basic of business practices. These arguments are conjectural for the same reason that the bare
statement “firing a gunshot into the head will cause a fatal wound” would be conjectural. Some people are lucky enough to survive gunshot
wounds to the head, while many others are not. Yet just because the fear of mortality would be merely speculative, it does not mean that there
should be less compulsion to avoid a situation of getting shot in the head.
Same; Same; Same; Clear and Present Danger Doctrine; One of the most significant legal principles of the last century, the “clear and
present danger” doctrine in free speech cases, in fact emanates from the prospectivity, and not the actuality of danger.—The Court has long
responded to strike down prospective actions, even if the injury has not yet even occurred. One of the most significant legal principles of the last
century, the “clear and present danger” doctrine in free speech cases, in fact emanates from the prospectivity, and not the actuality of
danger. The Court has not been hesitant to nullify acts which might cause injury, owing to the presence of a clear and present danger of a
substantive evil which the State has the right to prevent. It has even extended the “clear and present danger rule” beyond the confines of freedom
of expression to the realm of freedom
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of religion, as noted by Justice Puno in his ponencia in Estrada v. Escritor.
Same; Same; Same; Same; Not every unwise law is unconstitutional, but every unconstitutional law is unwise, for an unconstitutional
law contravenes a primordial principle or guarantee on which our polity is founded.—In the same vein, the claim that my arguments strike at the
wisdom, rather than the constitutionality of the law are misplaced. Concededly, the assailed provisions of the E-VAT law are basically unwise.
But any provision of law that directly contradicts the Constitution, especially the Bill of Rights, are similarly unwise, as they run inconsistent
with the fundamental law of the land, the enunciated state policies and the elemental guarantees assured by the State to its people. Not every
unwise law is unconstitutional, but every unconstitutional law is unwise, for an unconstitutional law contravenes a primordial principle or
guarantee on which our polity is founded.
Same; Same; Same; Same; If our society can take cold comfort in the ability of the legislature to amend its enactments as the defense
against unconstitutional laws, what remains then as the function of judicial review? The long-standing tradition has been reliance on the judicial
branch, and not the legislative branch, for salvation from unconstitutional laws.—It is also asserted that if the implementation of the 70% cap
imposes an unequal effect on different types of businesses with varying profit margins and capital requirements, then the remedy would be an
amendment of the law. Of course, the remedy of legislative amendment applies to even the most unconstitutional of laws. But if our society can
take cold comfort in the ability of the legislature to amend its enactments as the defense against unconstitutional laws, what remains then as the
function of judicial review? This legislative capacity to amend unconstitutional laws runs concurrently with the judicial capacity to strike down
unconstitutional laws. In fact, the long-standing tradition has been reliance on the judicial branch, and not the legislative branch, for salvation
from unconstitutional laws.
Same; Same; VAT is distinguishable from the standard excise or percentage taxes in that it is imposable not only on the final transaction
involving the end user, but on previous stages as well so long as there was a sale involved.—VAT is distinguishable from the standard excise or
percentage taxes in that it is imposable not only on
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4 ANNOTATED
the final transaction involving the end user, but on previous stages as well so long as there was a sale involved. Thus, VAT does not
simply pertain to the extra percentage paid by the buyer of a fast-food meal, but also that paid by restaurant itself to its suppliers of raw food
products. This multi-stage system is more acclimated to the vagaries of the modern industrial climate, which has long surpassed the stage when
there was only one level of transfer between the farmer who harvests the crop and the person who eats the crop. Indeed, from the extraction or
production of the raw material to its final consumption by a user, several transactions or sales materialize. The VAT system assures that the
government shall reap income for every transaction that is had, and not just on the final sale or transfer.
Same; Same; There is another key characteristic of the VAT—that no matter how many the taxable transactions that precede the final
purchase or sale, it is the end-user, or the consumer, that ultimately shoulders the tax—despite its name, VAT is generally not intended to be a
tax on value added, but rather as a tax on consumption.—There is another key characteristic of the VAT—that no matter how many the taxable
transactions that precede the final purchase or sale, it is the end-user, or the consumer, that ultimately shoulders the tax. Despite its name, VAT is
generally not intended to be a tax on value added, but rather as a tax on consumption. Hence, there is a mechanism in the VAT system that
enables firms to offset the tax they have paid on their own purchases of goods and services against the tax they charge on their sales of goods and
services. Section 105 of the NIRC assures that “the amount of tax may be shifted or passed on to the buyer, transferee or lessee of the goods,
properties or services.” The assailed provisions of the E-VAT law strike at the heart of this accepted principle.
Same; Same; In theory, VAT is not supposed to affect the profit margin—if such margin is affected, it is only because of the prepayment
of the input taxes, and this should be remedied by the immediate recovery through the crediting system of the settled input taxes; The new E-VAT
law changes all that, and puts in jeopardy the survival of small to medium enterprises.—Profit is a chancy matter, and in cases of small to
medium enterprises, usually small if any. It is quite common for retail and distribution enterprises to incur profits of less than 1% of their gross
revenues. Low profitability is not an
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automatic badge of poor business skills, but a reality dictated by the laws of the marketplace. The probability of profit is lower than that of
capital expenditures, and ultimately, many business establishments end up with a higher input tax than output tax in a given quarter. This would
be especially true for small to medium enterprises who do not reap sufficient profits from its business in the first place, and for those firms that
opt to also invest in capital expenses in addition to the overhead. Whatever miniscule profit margins that can be obtained usually spell the
difference between life and death of the business. The possibility of profit is further diminished by the fact that businesses have to shoulder the
input VAT in the purchase of their capital expenses. Yet the erstwhile VAT system was not tainted by the label of oppressiveness and neither did
it bear the confiscatory mode. This was because of the immediate relief afforded from the input taxes paid by the crediting system. In theory, VAT
is not supposed to affect the profit margin. If such margin is affected, it is only because of the prepayment of the input taxes, and this should be
remedied by the immediate recovery through the crediting system of the settled input taxes. The new E-VAT law changes all that, and puts in
jeopardy the survival of small to medium enterprises.
Same; Same; The majority fails to consider one of the most important concepts in finance, time value for money—the longer the amount
remains unutilized, the higher the degree of its depreciation in value, in accordance with the concept of time value of money. —The majority fails
to consider one of the most important concepts in finance, time value for money. Simply put, the value of one peso is worth more today than in
2006. Money that you hold today is worth more because you can invest it and earn interest. By reason of the 70% cap, the amount of input VAT
credit that remains unutilized would continue accumulate for months and years. The longer the amount remains unutilized, the higher the degree
of its depreciation in value, in accordance with the concept of time value of money. Even assuming that the business eventually recovers the input
VAT credit, the sum recovered would have decreased in practical value.
Same; Same; The raison d’etre of this 70% cap is to make it appear on paper that the government is more solvent than it actually is; If
the 70% cap was designed in order to enhance revenue collection, then I submit that the means employed stand beyond reason.—It would be sad,
but fair, if a business ceases because of its inability to
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compete with other businesses. It would be utter malevolence to condemn an enterprise to death solely through the employment of a
deceptive accounting wizardry. For the raison d’etre of this 70% cap is to make it appear on paper that the government is more solvent than it
actually is.Conceding for the nonce, there is a temporary advantage gained by the government by this 70% cap, as the steady remittance by
businesses of the 30% output VAT would assure a cash flow. Such collection may only momentarily resolve an endemic problem in our local tax
system, the problem of collection itself. If the 70% cap was designed in order to enhance revenue collection, then I submit that the means
employed stand beyond reason. If sheer will proves insufficient in assuring that the State all taxes due it, there should be allowable discretion for
the government to formulate creative means to enhance collection. But to do so by depriving low profit enterprises of whatever meager income
earned and consequently assuring the death of these industries goes beyond any valid State purpose.
Same; Same; The effect of the 70% cap is to effectively impose a tax amounting to 3% of gross revenue. —Only stable businesses with
substantial cash flows, or extraordinarily successful enterprises will be able to remain in operation should the 70% cap be retained. The effect of
the 70% cap is to effectively impose a tax amounting to 3% of gross revenue. The amount may seem insignificant to those without working
knowledge of the ways of business, but anybody who is actually familiar with business would be well aware the profit margins of the retailing
and distribution sectors typically amount to less than 1% of the gross revenues. A taxpayer has to earn a margin of at least 3% on gross revenue in
order to recoup the losses sustained due to the 70% cap. But as stated earlier, profits are chancy, and the entrepreneur does not have full control of
the conditions that lead to profit.
Same; Same; Due Process; The standard of “deprivation of life” of juridical persons employs different variables than that of natural
persons.—In analyzing the effects of the 70% cap, and appreciating how it violates the due process clause, we should not focus solely on the end
consumers. Undoubtedly, consumers will face hardships due to the increased prices, but their threshold of physical survival, as individual people,
is significantly less than that of enterprises. Somehow, I do not think the new E-VAT would generally deprive
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consumers of the bare necessities such as food, water, shelter and clothing. There may be significant deprivation of comfort as a result, but
not of life. The same does not hold true for businesses. The standard of “deprivation of life” of juridical persons employs different variables than
that of natural persons. What food and water may be for persons, profit is for an enterprise—the bare necessity for survival. For businesses, the
implementation of the same law, with the 70% cap and 60-month amortization period, would mean the deprivation of profit, which is the
determinative necessity for the survival of a business.
Same; Same; Same; Catch-22; This is your basic Catch-22 situation—no matter which means the enterprise employs to recover from the
E-VAT Law, it will still go down in flames.—Reduction of expenditures is not the exclusive antidote to these impositions under the E-VAT Law,
as there must also be a corresponding increase in the amount of gross sales. To do so though, would require an increase in the selling price,
dampening consumer enthusiasm, and further impairing the ability of the enterprise to recover from the E-VAT Law. This is your basic Catch-22
situation—no matter which means the enterprise employs to recover from the E-VAT Law, it will still go down in flames.
Same; Same; In essentially prohibiting the recovery of small profit margins, the E-VAT law effectively sends the message that only high
margin businesses are welcome to do business in the Philip-pines—it stifles any entrepreneurial ambitions of Filipinos unfortunate enough to
have been born poor yet seek a better life by sacrificing all to start a small business. —Section 8 of the E-VAT law, while ostensibly even-handed
in application, fails to appreciate valid substantial distinctions between large scale enterprises and small and medium enterprises. The latter group,
owing to the limited capability for capital investment, subsists on modest profit margins, whereas the former expects, by reason of its substantial
capital investments, a high margin. In essentially prohibiting the recovery of small profit margins, the E-VAT law effectively sends the message
that only high margin businesses are welcome to do business in the Philippines. It stifles any entrepreneurial ambitions of Filipinos unfortunate
enough to have been born poor yet seek a better life by sacrificing all to start a small business.
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Same; Same; Sadly, the majority refuses to confront the figures or engage in a meaningful demonstration of how these assailed
provisions truly operate—instead, it counters with platitudes and bromides that do not intellectually satisfy. —The burden of proof was on the
Pilipinas Shell Dealers’ to prove their allegations, and accordingly, these figures have been duly presented to the Court for appreciation and
evaluation. Instead, the majority has shunted aside these presentations as being merely theoretical, despite the fact that they present a clear and
present danger to the very life of our nation’s enterprises. The majority’s position would have been more credible had it faced the issue squarely,
and endeavored to demonstrate in like numerical fashion why the 70% cap is not oppressive, confiscatory, or otherwise violative of the due
process clause. Sadly, the majority refuses to confront the figures or engage in a meaningful demonstration of how these assailed provisions truly
operate. Instead, it counters with platitudes and bromides that do not intellectually satisfy. Considering that the very vitality, if not life of our
domestic economy is at stake, I think it derelict to our duty to block out these urgent concerns presented to the Court with blind faith tinged with
irrational Panglossian optimism.
Same; Same; The 70% cap is not merely an unwise imposition—it is a burden designed, either through sheer heedlessness or cruel
calculation, to kill off the small and medium enterprises that are the soul, if not the heart, of our economy, and it is not merely an undue taking of
property, but constitutes an unjustified taking of life as well; The illusion of wealth is hardly a legitimate state purpose, especially if projected at
the expense of the very business life of the country.— The 70% cap is not merely an unwise imposition. It is a burden designed, either through
sheer heedlessness or cruel calculation, to kill off the small and medium enterprises that are the soul, if not the heart, of our economy. It is not
merely an undue taking of property, but constitutes an unjustified taking of life as well. And what legitimate, germane purposes does this lethal
70% cap serve? It certainly does not increase the government’s revenue since the unutilized creditable input VAT should be entered in the
government books as a debt payable as it is supposed to be eventually repaid to the taxpayer, and so on the contrary it increases the government’s
debts. I do see that the 70% cap temporarily allows the government to brag to the world of an increased cash flow. But this situation would be
akin to the provincial man who borrows from everybody in the barrio
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in order to show off money and maintain the pretense of prosperity to visiting city relatives. The illusion of wealth is hardly a legitimate
state purpose, especially if projected at the expense of the very business life of the country.
Same; Same; What the majority fails to mention is that under Section 10 of the E-VAT Law, which amends Section 112 of the NIRC, the
tax credit or refund may not be done while the enterprise remains operational.—Nonetheless, the majority notes that the excess creditable input
tax may be the subject of a tax credit certificate, which then could be used in payment of internal revenue taxes, or a refund to the extent that such
input taxes have not been applied against output taxes. What the majority fails to mention is that under Section 10 of the E-VAT Law, which
amends Section 112 of the NIRC, such credit or refund may not be done while the enterprise remains operational.
Same; Same; The inability to immediately credit or otherwise recover the unutilized input VAT could cause such prepaid amount to
actually be recognized in the accounting books as a loss; What heretofore was recognized as an asset would now, with the imposition of the 70%
cap, be now considered as a loss, enhancing the view that the 70% cap is ultimately confiscatory in nature. —The inability to immediately credit
or otherwise recover the unutilized input VAT could cause such prepaid amount to actually be recognized in the accounting books as a loss.
Under international accounting practices, the unutilized input VAT due to the 70% cap would not even be recognized as a deferred asset. The
same would not hold true if the 70% cap were eliminated. Under the International Accounting Standards, the unutilized input VAT credit is
recognized as an asset “to the extent that it is probable that future taxable profit will be available against which the unused tax losses and unused
tax credits can be utili[z]ed” Thus, if the immediate accreditation of the input VAT credit can be obtained, as it would without the 70% cap, the
asset could be recognized. However, the same Standards hold that “[t]o the extent that it is not probable that taxable profit will be available
against which the unused tax losses or unused tax credits can be utilised, the deferred tax asset is not recognised.” As demonstrated, the
continuous operation of the 70% cap precludes the recovery of input VAT prepaid months or years prior. Moreover, the inability to claim a
refund or tax credit certificate until after the business has
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0 ANNOTATED
already ceased virtually renders it improbable for the input VAT to be recovered. As such, under the International Accounting Standards,
it is with all likelihood that the prepaid input VAT, ostensibly creditable, would actually be reflected as a loss. What heretofore was recognized as
an asset would now, with the imposition of the 70% cap, be now considered as a loss, enhancing the view that the 70% cap is ultimately
confiscatory in nature.
Same; Same; Due Process; Assets would fall under the purview of property under the due process clause, and if the taxing arm of the
State recognizes that such property belongs to the taxpayer and not to the State, then due respect should be given to such expert opinion. — The
BIR itself has recognized that unutilized input VAT is one of those assets, corporate attributes or property rights that, in the event of a merger, are
transferred to the surviving corporation by operation of law. Assets would fall under the purview of property under the due process clause, and if
the taxing arm of the State recognizes that such property belongs to the taxpayer and not to the State, then due respect should be given to such
expert opinion. Even under the International Accounting Standards I adverted to above, the unutilized input VAT credit may be recognized as an
asset “to the extent that it is probable that future taxable profit will be available against which the unused tax losses and unused tax credits can be
utilised” If not probable, it would be recognized as a loss. Since these international standards, duly recognized by the Securities and Exchange
Commission as controlling in this jurisdiction, attribute tangible gain or loss to the VAT credit, it necessarily follows that there is proprietary
value attached to such gain or loss.
Same; Same; Same; To assert that the input VAT is merely a privilege is to correspondingly claim that the business profit is similarly a
mere privilege.—The prepaid input tax represents unutilized profit, which can only be utilized if it is refunded or credited to output taxes. To
assert that the input VAT is merely a privilege is to correspondingly claim that the business profit is similarly a mere privilege. The Constitution
itself recognizes the right to profit by private enterprises. As I stated earlier, one of the enunciated State policies under the Constitution is the
recognition of the indispensable role of the private sector, the encouragement of private enterprise, and the provision of incentives to needed
investments. Moreover, the Constitution also requires the State to recognize the right of
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enterprises to reasonable returns on investments, and to expansion and growth. This, I believe, encompasses profit.
Same; Same; The amortization over a five-year period of the input VAT on these capital goods would definitely eat up into the profit
margin of enterprises.—Again, this provision unreasonably severely limits the ability of an enterprise to recover its prepaid input VAT. On its
face, it might appear injurious primarily to high margin enterprises, whose purchase of capital goods in a given quarter would routinely exceed
P1,000,000.00. The amortization over a five-year period of the input VAT on these capital goods would definitely eat up into their profit margin.
But it is still possible for such big businesses to survive despite this new restriction, and their financial pain alone may not be sufficient to cause
the invalidity of a taxing statute. However, this amortization plan will prove especially fatal to start-ups and other new businesses, which need to
purchase capital goods in order to start up their new businesses. It is a known fact in the financial community that a majority of businesses start
earning profit only after the second or third year, and many enterprises do not even get to survive that long. The first few years of a business are
the most crucial to its survival, and any financial benefits it can obtain in those years, no matter how miniscule, may spell the difference between
life and death. For such emerging businesses, it is already difficult under the present system to recover the prepaid input VAT from the output
VAT collected from customers because initial sales volumes are usually low. With this further limitation, diminishing as it does any opportunity
to have a sustainable cash flow, the ability of new businesses to survive the first three years becomes even more endangered.
Same; Same; For some lucky enterprises who may be able to survive the injury brought about by the 70% cap, this 60 month
amortization period might instead provide the mortal head wound.—Even existing small to medium enterprises are imperiled by this 60 month
amortization restriction, especially considering the application of the 70% cap. The additional purchase of capital goods bears as a means of
adding value to the consumer good, as a means to justify the increased selling price. However, the purchase of capital goods in excess of
P1,000,000.00 would impose another burden on the small to medium enterprise by further restricting their ability to immediately recover the
entire prepaid input VAT (which would exceed at least
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2 ANNOTATED
P100,000.00), as they would be compelled to wait for at least five years before they can do so. Another hurdle is imposed for such small
to medium enterprise to obtain the profit margin critical to survival. For some lucky enterprises who may be able to survive the injury brought
about by the 70% cap, this 60 month amortization period might instead provide the mortal head wound.
Same; Same; The deletion of the credit apparatus—where tax withheld would also be creditable against the VAT liability of the seller or
contractor—effectively compels the private enterprise transacting with the government to shoulder the output VAT that should have been paid by
the government in excess of 5% of the gross selling price, and at the same time unduly burdens the private enterprise by precluding it from
applying any creditable input VAT on the same transaction.—The principle that the Government and its subsidiaries may deduct and withhold a
final value-added tax on its purchase of goods and services is not new, as the NIRC had allowed such deduction and withholding at the rate of 3%
of the gross payment for the purchase of goods, and 6% of the gross receipts for services. However, the NIRC had also provided that this tax
withheld would also be creditable against the VAT liability of the seller or contractor, a mechanism that was deleted by the E-VAT law. The
deletion of this credit apparatus effectively compels the private enterprise transacting with the government to shoulder the output VAT that
should have been paid by the government in excess of 5% of the gross selling price, and at the same time unduly burdens the private enterprise
by precluding it from applying any creditable input VAT on the same transaction.Notably, the removal of the credit mechanism runs contrary to
the essence of the VAT system, which characteristically allows the crediting of input taxes against output taxes. Without such crediting
mechanism, which allows the shifting of the VAT to only the final end user, the tax becomes a straightforward tax on business or income. The
effect on the enterprise doing business with the government would be that two taxes would be imposed on the income by the business derived on
such transaction: the regular personal or corporate income tax on such income, and this final withholding tax of 5%.
Same; Same; It is a legitimate purpose of a tax law to devise a manner by which the government could save money on its own
transactions, but it is another matter if a private enterprise is punished for doing business with the government.—Granted that Congress is not
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bound to adopt with strict conformity the VAT system, and that it has to power to impose new taxes on business income, this amendment
to Section 114(C) of the NIRC still remains unconstitutional. It unfairly discriminates against entities which contract with the government by
imposing an additional tax on the income derived from such transactions. The end result of such discrimination is double taxation on income that
is both oppressive and confiscatory. It is a legitimate purpose of a tax law to devise a manner by which the government could save money on its
own transactions, but it is another matter if a private enterprise is punished for doing business with the government. The erstwhile NIRC worked
towards such advantage, by allowing the government to reduce its cash outlay on purchases of goods and services by withholding the payment of
a percentage thereof. While the new E-VAT law retains this benefit to the government, at the same time it burdens the private enterprise with an
additional tax by refusing to allow the crediting of this tax withheld to the business’s input VAT.
Same; Same; Section 114(C) of the NIRC squarely contradicts Section 20, Article II of the Constitution as it vacuously discourages
private enterprise, and provides disincentives to needed investments such as those expected by the State from private businesses. —The provision
squarely contradicts Section 20, Article II of the Constitution as it vacuously discourages private enterprise, and provides disincentives to needed
investments such as those expected by the State from private businesses. Whatever advantages may be gained by the temporary increase in the
government coffers would be overturned by the disadvantages of having a reduced pool of private enterprises willing to do business with the
government. Moreover, since government contracts with private enterprises will still remain a necessary fact of life, the amendment to Section
114(C) of the NIRC introduced by the E-VAT Law.
Same; Same; Double Taxation; Words and Phrases; Double taxation means taxing for the same tax period the same thing or activity
twice, when it should be taxed but once, for the same purpose and with the same kind of character of tax; Double taxation is not expressly
forbidden in our constitution, but the Court has recognized it as obnoxious “where the taxpayer is taxed twice for the benefit of the same
governmental entity or by the same jurisdiction for the same purpose.”—Double taxation means taxing for the same tax period the
74

4 ANNOTATED
same thing or activity twice, when it should be taxed but once, for the same purpose and with the same kind of character of tax. Double
taxation is not expressly forbidden in our constitution, but the Court has recognized it as obnoxious “where the taxpayer is taxed twice for the
benefit of the same governmental entity or by the same jurisdiction for the same purpose.” Certainly, both the 5% final tax withheld and the
general corporate income tax are both paid for the benefit of the national government, and for the same incidence of taxation, the sale/lease of
goods and services to the government.
Same; Same; Intelligent tax policy should extend beyond the singular-minded goal of raising State funds—the old-time philosophy behind
the taxing schemes of war-mongering monarchs and totalitarian states—and should sincerely explore the concept of taxation as a means of
providing genuine incentives to private enterprise to spur economic growth, of promoting egalitarian social justice that would allow everyone to
their fair share of the nation’s wealth.—The VAT system, in itself, is intelligently designed, and stands as a fair means to raise revenue. It has
been adopted worldwide by countries hoping to employ an efficient means of taxation. The concerns I have raised do not detract from my general
approval of the VAT system. I do lament though that our government’s wholehearted adoption of the VAT system is endemic of what I deem a
flaw in our national tax policy in the last few decades. The power of taxation, inherent in the State and ever so powerful, has been generally
employed by our financial planners for a solitary purpose: the raising of revenue. Revenue generation is a legitimate purpose of taxation, but
standing alone, it is a woefully unsophisticated design. Intelligent tax policy should extend beyond the singular-minded goal of raising State
funds—the old-time philosophy behind the taxing schemes of war-mongering monarchs and totalitarian states—and should sincerely explore the
concept of taxation as a means of providing genuine incentives to private enterprise to spur economic growth; of promoting egalitarian social
justice that would allow everyone to their fair share of the nation’s wealth. Instead, we are condemned by a national policy driven by the
monomania for State revenue. It may be beyond my oath as a Justice to compel the government to adopt an economic policy in consonance with
my personal views, but I offer these observations since they lie at the very heart of the noxiousness of the assailed provisions of the E-VAT law.
The 70% cap, the 60-month amortization period and the 5% withholding tax on govern-
75

5
ment transactions were selfishly designed to increase government revenue at the expense of the survival of local industries.
Same; Same; Under the device employed in the E-VAT law, the price to be paid for a more sustainable liquidity of the government’s
finances will be the death of local business, and correspondingly, the demise of our society.—I am not insensitive to the concerns raised by the
respondents as to the dire consequences to the economy should the E-VAT law be struck down. I am aware that the granting of the petition in
G.R. No. 168461 will negatively affect the cash flow of the government. If that were the only relevant concern at stake, I would have no problems
denying the petition. Unfortunately, under the device employed in the E-VAT law, the price to be paid for a more sustainable liquidity of the
government’s finances will be the death of local business, and correspondingly, the demise of our society. It is a measure just as draconian as the
standard issue taxes of medieval tyrants.
Same; Same; Taxes may be the lifeblood of the state, but never at the expense of the life of its subjects.—I am not normally inclined
towards the language of the overwrought, yet if the sky were indeed truly falling, how else could that fact be communicated. The E-VAT Law is
of multiple fatal consequences. How are we to survive as a nation without the bulwark of private industries? Perhaps the larger scale, established
businesses may ultimately remain standing, but they will be unable to sustain the void left by the demise of small to medium enterprises. Or
worse, domestic industry would be left in the absolute control of monopolies, combines or cartels, whether dominated by foreigners or local
oligarchs. The destruction of subsisting industries would be bad enough, the destruction of opportunity and the entrepreneurial spirit would be
even more grievous and tragic, as it would mark as well the end of hope. Taxes may be the lifeblood of the state, but never at the expense of the
life of its subjects.
CHICO-NAZARIO, J., Concurring Opinion:
Congress; Enrolled Bill Doctrine; I believe that it is more prudent for this Court to remain conservative and to continue its adherence to
the enrolled bill doctrine, for to abandon the said doctrine would be to open a Pandora’s Box, giving rise to a situation more fraught with evil
and mischief.—Petitioners’ arguments failed to
76

6 ANNOTATED
convince me of the wisdom of abandoning the enrolled bill doctrine. I believe that it is more prudent for this Court to remain conservative
and to continue its adherence to the enrolled bill doctrine, for to abandon the said doctrine would be to open a Pandora’s Box, giving rise to a
situation more fraught with evil and mischief. Statutes enacted by Congress may not attain finality or conclusiveness unless declared so by this
Court. This would undermine the authority of our statutes because despite having been signed and certified by the designated officers of
Congress, their validity would still be in doubt and their implementation would be greatly hampered by allegations of irregularities in their
passage by the Legislature. Such an uncertainty in the statutes would indubitably result in confusion and disorder. In all probability, it is the
contemplation of such a scenario that led an American judge to proclaim, thus—. . . Better, far better, that a provision should occasionally find its
way into the statute through mistake, or even fraud, than, that every Act, state and national, should at any and all times be liable to put in issue
and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land
would lead to mischiefs absolutely intolerable. . . .
Same; Bicameral Conference Committee; It does perplex me that members of both Houses would again ask the Court to define and limit
the powers of the Bicameral Conference Committee when such committee is of their own creation; That the majority of the members of both
Houses refuses to amend the Rules on the Bicameral Conference Committee is an indication that it is still satisfied therewith.—It does perplex
me that members of both Houses would again ask the Court to define and limit the powers of the Bicameral Conference Committee when such
committee is of their own creation. In a number of cases, this Court already made a determination of the extent of the powers of the Bicameral
Conference Committee after taking into account the existing Rules of both Houses of Congress. In gist, the power of the Bicameral Conference
Committee to reconcile or settle the differences in the two Houses’ respective bills is not limited to the conflicting provisions of the bills; but may
include matters not found in the original bills but germane to the purpose thereof. If both Houses viewed the pronouncement made by this Court
in such cases as extreme or beyond what they intended, they had the power to amend their respective Rules to clarify or limit even further the
scope of the authority which they grant to the Bicameral Conference
77

7
Committee. Petitioners’ grievance that, unfortunately, they cannot bring about such an amendment of the Rules on the Bicameral
Conference Committee because they are members of the minority, deserves scant consideration. That the majority of the members of both Houses
refuses to amend the Rules on the Bicameral Conference Committee is an indication that it is still satisfied therewith. At any rate, this is how
democracy works—the will of the majority shall be controlling.
Taxation; Germaneness Rule; If we have one Code for all our national internal revenue taxes, then there is no reason why we cannot
have a single statute amending provisions thereof even if they involve different taxes under separate titles. —Although House Bills No. 3555 and
3705 were limited to the amendments of the provisions on VAT of the National Internal Revenue Code of 1997, Senate Bill No. 1950 had a much
wider scope and included amendments of other provisions of the said Code, such as those on income, percentage, and excise taxes. It should be
borne in mind that the very purpose of these three Bills and, subsequently, of Rep. Act No. 9337, was to raise additional revenues for the
government to address the dire economic situation of the country. The National Internal Revenue Code of 1997, as its title suggests, is the single
Code that governs all our national internal revenue taxes. While it does cover different taxes, all of them are imposed and collected by the
national government to raise revenues. If we have one Code for all our national internal revenue taxes, then there is no reason why we cannot
have a single statute amending provisions thereof even if they involve different taxes under separate titles. I hereby submit that the amendments
introduced by the Bicameral Conference Committee to non-VAT provisions of the National Internal Revenue Code of 1997 are not
unconstitutional for they are germane to the purpose of House Bills No. 3555 and 3705 and Senate Bill No. 1950, which is to raise national
revenues.
Same; Value-Added Tax; Since the privilege of an input VAT credit is granted by law, then an amendment of such law may limit the
exercise of or may totally withdraw the privilege.—The crediting of the input VAT against the output VAT is a statutory privilege, granted by
Section 110 of the National Internal Revenue Code of 1997. It gives the VAT-registered person the opportunity to recover the input VAT he had
paid, so that, in effect, the input VAT does not
78

8 ANNOTATED
constitute an additional cost for him. While it is true that input VAT credits are reported as assets in a VAT-registered person’s financial
statements and books of account, this accounting treatment is still based on the statutory provision recognizing the input VAT as a credit. Without
Section 110 of the National Internal Revenue Code of 1997, then the accounting treatment of any input VAT will also change and may no longer
be booked outright as an asset. Since the privilege of an input VAT credit is granted by law, then an amendment of such law may limit the
exercise of or may totally withdraw the privilege.
Same; Same; To say that Congress may not trifle with Section 110 of the National Internal Revenue Code of 1997 would be to violate a
basic precept of constitutional law—that no law is irrepealable; There can be no vested right to the continued existence of a statute, which
precludes its change or repeal.—The amendment of Section 110 of the National Internal Revenue Code of 1997 by Rep. Act No. 9337, which
imposed the 70% cap on input VAT credits, is a legitimate exercise by Congress of its law-making power. To say that Congress may not trifle
with Section 110 of the National Internal Revenue Code of 1997 would be to violate a basic precept of constitutional law—that no law is
irrepealable. There can be no vested right to the continued existence of a statute, which precludes its change or repeal.
Same; Same; It should be remembered that prior to Rep. Act No. 9337, the petroleum dealers’ input VAT credits were inexistent—they
were unrecognized and disallowed by law—the petroleum dealers had no such property called input VAT credits.—Under the National Internal
Revenue Code of 1997, before it was amended by Rep. Act No. 9337, the sale or importation of petroleum products were exempt from VAT, and
instead, were subject to excise tax. Petroleum dealers did not impose any output VAT on their sales to consumers. Since they had no output VAT
against which they could credit their input VAT, they shouldered the costs of the input VAT that they paid on their purchases of goods,
properties, and services. Their sales not being subject to VAT, the petroleum dealers had no input VAT credits to speak of. It is only under Rep.
Act No. 9337 that the sales by the petroleum dealers have become subject to VAT and only in its implementation may they use their input VAT
as credit against their output VAT. While eager to use their input VAT credit
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9
accorded to it by Rep. Act No. 9337, the petroleum dealers reject the limitation imposed by the very same law on such use. It should be
remembered that prior to Rep. Act No. 9337, the petroleum dealers’ input VAT credits were inexistent—they were unrecognized and disallowed
by law. The petroleum dealers had no such property called input VAT credits. It is only rational, therefore, that they cannot acquire vested rights
to the use of such input VAT credits when they were never entitled to such credits in the first place, at least, not until Rep. Act No. 9337. My
view, at this point, when Rep. Act No. 9337 has not yet even been implemented, is that petroleum dealers’ right to use their input VAT as credit
against their output VAT unlimitedly has not vested, being a mere expectancy of a future benefit and being contingent on the continuance of
Section 110 of the National Internal Revenue Code of 1997, prior to its amendment by Rep. Act No. 9337.
Same; Same; The 70% cap on input VAT credits was not imposed by Congress arbitrarily—members of the Bicameral Conference
Committee settled on the said percentage so as to ensure that the government can collect a minimum of 30% output VAT per taxpayer, to put a
VAT-taxpayer, at least, on equal footing with a VAT-exempt taxpayer under Section 109(V) of the National Internal Revenue Code, as amended
by Rep. Act No. 9337.—I find that the 70% cap on input VAT credits was not imposed by Congress arbitrarily. Members of the Bicameral
Conference Committee settled on the said percentage so as to ensure that the government can collect a minimum of 30% output VAT per
taxpayer. This is to put a VAT-taxpayer, at least, on equal footing with a VAT-exempt taxpayer under Section 109(V) of the National Internal
Revenue Code, as amended by Rep. Act No. 9337. The latter taxpayer is exempt from VAT on the basis that his sale or lease of goods or
properties or services do not exceed P1,500,000; instead, he is subject to pay a three percent (3%) tax on his gross receipts in lieu of the VAT. If a
taxpayer with presumably a smaller business is required to pay three percent (3%) gross receipts tax, a type of tax which does not even allow for
any crediting, a VAT-taxpayer with a bigger business should be obligated, likewise, to pay a minimum of 30% output VAT (which should be
equivalent to 3% of the gross selling price per good or property or service sold). The cap assures the government a collection of at least 30%
output VAT, contributing to an improved cash flow for the government.
80

0 ANNOTATED
SPECIAL CIVIL ACTION in the Supreme Court.

Carlos G. Baniqued and Laura Victoria Yuson-Layug for petitioners in G.R. No. 168461.
Eugenio H. Villareal, Dionisio B. Marasigan, Ma. Rosa-lie Taguian, Agustin C. Bacungan III and Roland Allan C.
Abarquezfor petitioners in G.R. No. 168463.
Samson S. Alcantara, Ed Vincent S. Albano and Rene B. Gorospe for petitioners in G.R. No. 168056.
Luis Ma. Gil L. Gana for petitioners in G.R. No. 168207.
The Solicitor General for public respondents.
AUSTRIA-MARTINEZ, J.:
The expenses of government, having for their object the interest of all, should be borne by everyone, and the more man enjoys the
advantages of society, the more he ought to hold himself honored in contributing to those expenses.
—Anne Robert Jacques Turgot (1727-1781)
French statesman and economist
Mounting budget deficit, revenue generation, inadequate fiscal allocation for education, increased emoluments for health
workers, and wider coverage for full value-added tax benefits . . . these are the reasons why Republic Act No. 9337 (R.A. No.
9337) was enacted. Reasons, the wisdom of which, the Court even with its extensive constitutional power of review, cannot
1
probe. The petitioners in these cases, however, question not only the wisdom of the law, but also perceived constitutional
infirmities in its passage.
_______________
1
Entitled “An Act Amending Sections 27, 28, 34, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 119, 121, 148, 151, 236, 237, and 288 of the National
Internal Revenue Code of 1997, As Amended and For Other Purposes.”
81

1
Every law enjoys in its favor the presumption of constitutionality. Their arguments notwithstanding, petitioners failed to
justify their call for the invalidity of the law. Hence, R.A. No. 9337 is not unconstitutional.
LEGISLATIVE HISTORY
R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705, and Senate Bill
No. 1950.
House Bill No. 3555 was introduced on first reading on January 7, 2005. The House Committee on Ways and
2
Means approved the bill, in substitution of House Bill No. 1468, which Representative (Rep.) Eric D. Singson
introduced on August 8, 2004. The President certified the bill on January 7, 2005 for immediate enactment. On
January 27, 2005, the House of Representatives approved the bill on second and third reading.
House Bill No. 3705 on the other hand, substituted House Bill No. 3105 introduced by Rep. Salacnib F.
3
Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its “mother bill” is House Bill No. 3555.
The House Committee on Ways and Means approved the bill on February 2, 2005. The President also certified it as
urgent on February 8, 2005. The House of Representatives approved the bill on second and third reading on
February 28, 2005.
_______________
2
Entitled, “An Act Restructuring the Value-Added Tax, Amending for the Purpose Sections 106, 107, 108, 110 and
114 of the National Internal Revenue Code of 1997, As Amended, and For Other Purposes.”
3
Entitled, “An Act Amending Sections 106, 107, 108, 109, 110 and 111 of the National Internal Revenue Code of
1997, As Amended, and For Other Purposes.”
82
Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 1950 on March 7, 2005, “in
4
substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into consideration House Bill Nos. 3555 and 3705.”
Senator Ralph G. Recto sponsored Senate Bill No. 1337, while Senate Bill Nos. 1838 and 1873 were both sponsored
by Sens. Franklin M. Drilon, Juan M. Flavier and Francis N. Pangilinan. The President certified the bill on March
11, 2005, and was approved by the Senate on second and third reading on April 13, 2005.
On the same date, April 13, 2005, the Senate agreed to the request of the House of Representatives for a
committee conference on the disagreeing provisions of the proposed bills.
Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555, House Bill No.
3705, and Senate Bill No. 1950, “after having met and discussed in full free and conference,” recommended the
approval of its report, which the Senate did on May 10, 2005, and with the House of Representatives agreeing
thereto the next day, May 11, 2005.
On May 23, 2005, the enrolled copy of the consolidated House and Senate version was transmitted to the
President, who signed the same into law on May 24, 2005. Thus, came R.A. No. 9337.
July 1, 2005 is the effectivity date of R.A. No. 9337. When said date came, the Court issued a temporary
5
restraining order, effective immediately and continuing until further orders, enjoining respondents from enforcing
and implementing the law.
Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking through Mr.
Justice
_______________
4
Entitled, “An Act Amending Sections 27, 28, 34, 106, 108, 109, 110, 112, 113, 114, 116, 117, 119, 121, 125, 148,
151, 236, 237 and 288 of the National Internal Revenue Code of 1997, As Amended, and For Other Purposes.”
5
Section 26, R.A. No. 9337.
83
Artemio V. Panganiban, voiced the rationale for its issuance of the temporary restraining order on July 1, 2005, to
wit:
J. . . . But before I go into the
PANGANIBAN: details of your presentation, let
me just tell you a little
background. You know when the
law took effect on July 1, 2005,
the Court issued a TRO at about
5 o’clock in the afternoon. But
before that, there was a lot of
complaints aired on television
and on radio. Some people in a
gas station were complaining
that the gas prices went up by
10%. Some people were
complaining that their electric
bill will go up by 10%. Other
times people riding in domestic
air carrier were complaining that
the prices that they’ll have to
pay would have to go up by
10%. While all that was being
aired, per your presentation and
per our own understanding of the
law, that’s not true. It’s not true
that the e-vat law necessarily
increased prices by 10%
uniformly isn’t it?
ATTY. No, Your Honor.
BANIQUED:
J. It is not?
PANGANIBAN:
ATTY. It’s not, because, Your Honor,
BANIQUED: there isan Executive Order that
granted the Petroleum
companies some subsidy . .
.interrupted
J. That’s correct . . .
PANGANIBAN:
ATTY. . . . and therefore that was meant
BANIQUED: to temper the impact . . .
interrupted
J. . . . mitigating measures . . .
PANGANIBAN:
ATTY. Yes, Your Honor.
BANIQUED:
J. As a matter of fact a part of the
PANGANIBAN: mitigating measures would be
the eliminationof the Excise Tax
and the import duties.That is
why, it is not correct to say that
84
ANNOTATED
the VAT as to petroleum dealers
increased prices by 10%.
BANIQUED:
J. And therefore, there is no
PANGANIBAN: justification for increasing the
retail price by 10% to cover the
E-Vat tax. If you consider the
excise tax and the import duties,
the Net Tax would probably be
in the neighborhood of 7%? We
are not going into exact figures I
am just trying to deliver a point
that different industries, different
products, different services are
hit differently. So it’s not correct
to say that all prices must go up
by 10%.
ATTY. You’re right, Your Honor.
BANIQUED:
J. Now. For instance, Domestic
PANGANIBAN: Airline companies, Mr. Counsel,
are at present imposed a Sales
Tax of 3%. When this E-Vat law
took effect the Sales Tax was
also removed as a mitigating
measure. So, therefore, there is
no justification to increase the
fares by 10% at best 7%,
correct?
ATTY. I guess so, Your Honor, yes.
BANIQUED:
J. There are other products that the
PANGANIBAN: people were complaining on that
first day, were being increased
arbitrarily by 10%. And that’s
one reason among many others
this Court had to issue TRO
because of the confusion in the
implementation. That’s why we
added as an issue in this case,
even if it’s tangentially taken up
by the pleadings of the parties,
the confusion in the
implementation of the E-vat.
Our people were subjected to the
mercy of that confusion of an
across the board increase of
10%, which you yourself now
admit and I think even the
Government will admit is
incorrect. In some cases, it
should be
85
3% only, in some cases it
should be 6% depending on
these mitigating measures
and the location and situation
of each product, of each
service, of each company,
isn’t it?
BANIQUED:
J. Alright. So that’s one reason
PANGANIBAN: why we had to issue a TRO
pending the clarification of
all these and we wish the
government will take time to
clarify all these by means of
a more detailed
implementing rules, in case
the law is upheld by this
Court. . . . The Court also
6
directed the parties to file

their respective Memoranda.
G.R. No. 168056
Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition for prohibition on
May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106,
107 and 108, respectively, of the National Internal Revenue Code (NIRC). Section 4 imposes a 10% VAT on sale of
goods and properties, Section 5 imposes a 10% VAT on importation of goods, and Section 6 imposes a 10% VAT
on sale of services and use or lease of properties. These questioned provisions contain a uniform provisoauthorizing
the President, upon recommendation of the Secretary of Finance, to raise the VAT rate to 12%, effective January 1,
2006, after any of the following conditions have been satisfied, to wit:
. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions has
been satisfied:
_______________
TSN, July 14, 2005.

6
86
1. (i)Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%); or
2. (ii)National government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 1/2%).
Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of its exclusive
authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987 Philippine Constitution.
G.R. No. 168207
On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise assailing the
constitutionality of Sections 4, 5 and 6 of R.A. No. 9337.
Aside from questioning the so-called stand-by authorityof the President to increase the VAT rate to 12%, on the
ground that it amounts to an undue delegation of legislative power, petitioners also contend that the increase in the
VAT rate to 12% contingent on any of the two conditions being satisfied violates the due process clause embodied
in Article III, Section 1 of the Constitution, as it imposes an unfair and additional tax burden on the people, in that:
(1) the 12% increase is ambiguous because it does not state if the rate would be returned to the original 10% if the
conditions are no longer satisfied; (2) the rate is unfair and unreasonable, as the people are unsure of the applicable
VAT rate from year to year; and (3) the increase in the VAT rate, which is supposed to be an incentive to the
President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should only be based on
fiscal adequacy.
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the Bicameral
Conference Committee is a violation of the “no-amendment rule” upon last reading of a bill laid down in Article VI,
Section 26(2) of the Constitution.
87
G.R. No. 168461
Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association of Pilipinas Shell Dealers,
Inc., et al., assailing the following provisions of R.A. No. 9337:
1. 1)Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on depreciable goods
shall be amortized over a 60-month period, if the acquisition, excluding the VAT components, exceeds
One Million Pesos (P1, 000,000.00);
2. 2)Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of input tax to be
credited against the output tax; and
3. 3)Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its political
subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final withholding tax on
gross payments of goods and services, which are subject to 10% VAT under Sections 106 (sale of goods
and properties) and 108 (sale of services and use or lease of properties) of the NIRC.
Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive, excessive, and
confisca-tory.
Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or property
without due process of law under Article III, Section 1 of the Constitution. According to petitioners, the contested
sections impose limitations on the amount of input tax that may be claimed. Petitioners also argue that the input tax
partakes the nature of a property that may not be confiscated, appropriated, or limited without due process of law.
Petitioners further contend that like any other property or property right, the input tax credit may be transferred or
disposed of, and that by limiting the same, the government gets to tax a profit or value-added even if there is no
profit or value-added.
Petitioners also believe that these provisions violate the constitutional guarantee of equal protection of the law
under Article III, Section 1 of the Constitution, as the limitation on
88
the creditable input tax if: (1) the entity has a high ratio of input tax; or (2) invests in capital equipment; or (3) has
several transactions with the government, is not based on real and substantial differences to meet a valid
classification.
Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI, Section 28(1)
of the Constitution, and that it is the smaller businesses with higher input tax to output tax ratio that will suffer the
consequences thereof for it wipes out whatever meager margins the petitioners make.
G.R. No. 168463
Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed this petition
for certiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337 on the following grounds:
1. 1)Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in violation of
Article VI, Section 28(2) of the Constitution;
2. 2)The Bicameral Conference Committee acted without jurisdiction in deleting the no pass onprovisions
present in Senate Bill No. 1950 and House Bill No. 3705; and
3. 3)Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121, 125, 148, 7
151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article VI, Section 24(1) of
the Constitution, which provides that all appropriation, revenue or tariff bills shall originate exclusively in
the House of Representatives
G.R. No. 168730

On the eleventh hour, Governor Enrique T. Garcia filed a petition for certiorari and prohibition on July 20, 2005,
alleg-
_______________
Section 125 of the National Internal Revenue Code, as amended, was not amended by R.A. No. 9337, as can be
7
gleaned from the title and body of the law.

89
ing unconstitutionality of the law on the ground that the limitation on the creditable input tax in effect allows VAT-
registered establishments to retain a portion of the taxes they collect, thus violating the principle that tax collection
and revenue should be solely allocated for public purposes and expenditures. Petitioner Garcia further claims that
allowing these establishments to pass on the tax to the consumers is inequitable, in violation of Article VI, Section
28(1) of the Constitution.
RESPONDENTS’ COMMENT
The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents. Preliminarily, respondents
contend that R.A. No. 9337 enjoys the presumption of constitutionality and petitioners failed to cast doubt on its
validity.
Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA 630 (1994), respondents argue that the
procedural issues raised by petitioners, i.e., legality of the bicameral proceedings, exclusive origination of revenue
measures and the power of the Senate concomitant thereto, have already been settled. With regard to the issue of
undue delegation of legislative power to the President, respondents contend that the law is complete and leaves no
discretion to the President but to increase the rate to 12% once any of the two conditions provided therein arise.
Respondents also refute petitioners’ argument that the increase to 12%, as well as the 70% limitation on the
creditable input tax, the 60-month amortization on the purchase or importation of capital goods exceeding
P1,000,000.00, and the 5% final withholding tax by government agencies, is arbitrary, oppressive, and confiscatory,
and that it violates the constitutional principle on progressive taxation, among others.
Finally, respondents manifest that R.A. No. 9337 is the anchor of the government’s fiscal reform agenda. A
reform in the value-added system of taxation is the core revenue measure
90
that will tilt the balance towards a sustainable macroeconomic environment necessary for economic growth.
ISSUES
The Court defined the issues, as follows:
PROCEDURAL ISSUE
Whether R.A. No. 9337 violates the following provisions of the Constitution:
1. a.Article VI, Section 24, and

2. b.Article VI, Section 26(2)
SUBSTANTIVE ISSUES
1. 1.Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC, violate
the following provisions of the Constitution:
1. a.Article VI, Section 28(1), and

1. 2.Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and Section
12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions of the
Constitution:

2. b.Article III, Section 1
RULING OF THE COURT

As a prelude, the Court deems it apt to restate the general principles and concepts of value-added tax (VAT), as the
confusion and inevitably, litigation, breeds from a fallacious notion of its nature.
The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of goods or
properties
91
and services. Being an indirect tax on expenditure, the seller of goods or services may pass on the amount of tax
8
paid to the buyer, with the seller acting merely as a tax collector. The burden of VAT is intended to fall on the
9 10
immediate buyers and ultimately, the end-consumers.

In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it engages in,
without transferring the burden to someone else. Examples are individual and corporate income taxes, transfer taxes,
11
and residence taxes. 12
In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a different
mode. Prior to 1978, the system was a single-stage tax computed under the “cost deduction method” and was
payable only by the original sellers. The single-stage system was subsequently modified, and a mixture of the “cost
deduction method” and “tax credit method” was used to determine the value-added tax payable. Under the “tax
13
credit method,” an entity can credit against or subtract from the VAT charged on its sales or outputs the VAT paid
on its purchases, inputs and imports. 14
It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the VAT system
was ra-
_______________
8
Section 105, National Internal Revenue of the Philippines, as amended.
9
Ibid.
10
Deoferio, Jr., V.A. and Mamalateo, V.C., The Value Added Tax in the Philippines (First Edition 2000).
11
Maceda vs. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771.
12
Maceda vs. Macaraig, Jr., G.R. No. 88291, June 8, 1993, 223 SCRA 217.
13
Id., Deoferio, Jr., V.A. and Mamalateo, V.C., The Value Added Tax in the Philippines (First Edition 2000).
14
Commissioner of Internal Revenue vs. Seagate Technology (Phils.), G.R. No. 153866, February 11, 2005, 451 SCRA
132.
92
tionalized by imposing a multi-stage tax rate of 0% or 10% on all sales using the “tax credit method.” 15
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law, R.A. No. 8241 or the Improved VAT
16
Law, R.A. No. 8424 or the Tax Reform Act of 1997, and finally, the presently beleaguered R.A. No. 9337, also
17 18
referred to by respondents as the VAT Reform Act.

The Court will now discuss the issues in logical sequence.
PROCEDURAL ISSUE
I.
Whether R.A. No. 9337 violates the following provisions of the Constitution:
1. a.Article VI, Section 24, and

A. The Bicameral Conference Committee
Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference Committee exceeded its
authority by:
1. 1)Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No. 9337;
_______________
15
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipi-nas, Inc. vs. Tan, G.R. Nos. L-81311, L-81820, L-81921,
L-82152, June 30, 1988, 163 SCRA 371.
16
Entitled, “An Act Restructuring the Value-Added Tax (VAT) System, Widening its Tax Base and Enhancing its
Administration, And for these Purposes Amending and Repealing the Relevant Provisions of the National Internal
Revenue Code, as amended, and for other Purposes.”
17
Entitled, “An Act Amending Republic Act No. 7716, otherwise known as the Value-Added Tax Law and Other
Pertinent Provisions of the National Internal Revenue Code, as Amended.”
18
Entitled, “An Act Amending the National Internal Revenue Code, as Amended, and for other Purposes.”
93
1. 2)Deleting entirely the no pass-on provisions found in both the House and Senate bills;
2. 3)Inserting the provision imposing a 70% limit on the amount of input tax to be credited against the output
tax; and
3. 4)Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes in
addition to the value-added tax.
Petitioners now beseech the Court to define the powers of the Bicameral Conference Committee.
It should be borne in mind that the power of internal regulation and discipline are intrinsic in any legislative
body for, as unerringly elucidated by Justice Story, “[i]f the power did not exist, it would be utterly impracticable to
transact the business of the nation, either at all, or at least with decency, deliberation, and order.” Thus, Article VI,
19
Section 16 (3) of the Constitution provides that “each House may determine the rules of its proceedings.” Pursuant
to this inherent constitutional power to promulgate and implement its own rules of procedure, the respective rules of
each house of Congress provided for the creation of a Bicameral Conference Committee.
Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as follows:
Sec. 88. Conference Committee.—In the event that the House does not agree with the Senate on the
amendment to any bill or joint resolution, the differences may be settled by the conference committees of
both chambers.
In resolving the differences with the Senate, the House panel shall, as much as possible, adhere to and
support the House Bill. If the differences with the Senate are so substantial that they materially impair the
House Bill, the panel shall report such fact to the House for the latter’s appropriate action.
_______________
Story, Commentaries 835 (1833).

19
94
Sec. 89. Conference Committee Reports.—. . . Each report shall contain a detailed, sufficiently explicit
statement of the changes in or amendments to the subject measure.
...
The Chairman of the House panel may be interpellated on the Conference Committee Report prior to
the voting thereon. The House shall vote on the Conference Committee Report in the same manner and
procedure as it votes on a bill on third and final reading.
Rule XII, Section 35 of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives on the provision of
any bill or joint resolution, the differences shall be settled by a conference committee of both Houses
which shall meet within ten (10) days after their composition. The President shall designate the members
of the Senate Panel in the conference committee with the approval of the Senate.
changes in, or amendments to the subject measure, and shall be signed by a majority of the members of
each House panel, voting separately.
A comparative presentation of the conflicting House and Senate provisions and a reconciled version
thereof with the explanatory statement of the conference committee shall be attached to the report.
...
The creation of such conference committee was apparently in response to a problem, not addressed by any
constitutional provision, where the two houses of Congress find themselves in disagreement over changes or
amendments introduced by the other house in a legislative bill. Given that one of the most basic powers of the
legislative branch is to formulate and implement its own rules of proceedings and to discipline its members, may the
Court then delve into the details of how Congress complies with its internal rules or how it conducts its business of
passing legislation? Note that in the present petitions, the issue is not whether provisions of the rules of both houses
creating the bicameral conference committee are
95
unconstitutional, but whether the bicameral conference committee has strictly complied with the rules of both
houses, thereby remaining within the jurisdiction conferred upon it by Congress.
In the recent case of Fariñas vs. The Executive Secretary, the Court En Banc, unanimously reiterated and
20
emphasized its adherence to the “enrolled bill doctrine,” thus, declining therein petitioners’ plea for the Court to go
behind the enrolled copy of the bill. Assailed in said case was Congress’s creation of two sets of bicameral
conference committees, the lack of records of said committees’ proceedings, the alleged violation of said
committees of the rules of both houses, and the disappearance or deletion of one of the provisions in the compromise
bill submitted by the bicameral conference committee. It was argued that such irregularities in the passage of the law
nullified R.A. No. 9006, or the Fair Election Act.
Striking down such argument, the Court held thus:
Under the “enrolled bill doctrine,” the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are
conclusive of its due enactment. A review of cases reveals the Court’s consistent adherence to the
rule. The Court finds no reason to deviate from the salutary rule in this case where the
irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation
of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not the proper
forum for the enforcement of these internal rules of Congress, whether House or Senate.
Parliamentary rules are merely procedural and with their observance the courts have no concern.
Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its
favor. The Court reiterates its ruling in Arroyo vs. De Venecia, viz.:
But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House
_______________
G.R. No. 147387, December 10, 2003, 417 SCRA 503.

20
96
of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals. In Osmeña v. Pendatun, it was held: “At any rate,
courts have declared that ‘the rules adopted by deliberative bodies are subject to revocation, modification or waiver
at the pleasure of the body adopting them.’ And it has been said that “Parliamentary rules are merely
procedural, and with their observance, the courts have no concern. They may be waived or disregarded by
the legislative body.” Consequently, “mere failure to conform to parliamentary usage will not invalidate the
action (taken by a deliberative body) when the requisite number of members have agreed to a particular
measure.” (Emphasis supplied)
21
The foregoing declaration is exactly in point with the present cases, where petitioners allege irregularities committed
by the conference committee in introducing changes or deleting provisions in the House and Senate bills. Akin to
the Fariñas case, the present petitions also raise an issue regarding the actions taken by the conference committee
22
on matters regarding Congress’ compliance with its own internal rules. As stated earlier, one of the most basic and
inherent power of the legislature is the power to formulate rules for its proceedings and the discipline of its
members. Congress is the best judge of how it should conduct its own business expeditiously and in the most orderly
manner. It is also the sole concern of Congress to instill discipline among the members of its conference committee
if it believes that said members violated any of its rules of proceedings. Even the expanded jurisdiction of this Court
cannot apply to questions regarding only the internal operation of Congress, thus, the Court is wont to deny a review
of the internal proceedings of a co-equal branch of government.
_______________
Id., pp. 529-530.

21
Supra., Note 20.

22
97
Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of Finance, the
23
Court already made the pronouncement that “[i]f a change is desired in the practice [of the Bicameral Conference
Committee] it must be sought in Congress since this question is not covered by any constitutional provision but is
only an internal rule of each house.” To date, Congress has not seen it fit to make such changes adverted to by the
24
Court. It seems, therefore, that Congress finds the practices of the bicameral conference committee to be very useful
for purposes of prompt and efficient legislative action.
Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the bicameral
conference committees, the Court deems it necessary to dwell on the issue. The Court observes that there was a
necessity for a conference committee because a comparison of the provisions of House Bill Nos. 3555 and 3705 on
one hand, and Senate Bill No. 1950 on the other, reveals that there were indeed disagreements. As pointed out in the
petitions, said disagreements were as follows:
House Bill No. House Bill No. Senate Bill
3555 3705 No. 1950
With regard to “Stand-By Authority” in favor of
President
Provides for Provides for 12% Provides for a
12% VAT on VAT in general single rate of
every sale of on sales of goods 10% VAT on
goods or or properties and sale of goods
properties reduced rates for or properties
(amending Sec. sale of certain (amending Sec.
106 of NIRC); locally 106 of NIRC),
12% VAT on manufactured 10% VAT on
importation of goods and sale of services
goods petroleum including sale
(amending Sec. products and raw of electricity
107 of NIRC); materials to be by generation
and 12% VAT used in companies,
on sale of trans-
services and
use
_______________
G.R. No. 115455, August 25, 1994, 235 SCRA 630.

23
Id., p. 670.
24
98
98 SUPREME COURT
REPORTS ANNOTATED
or lease of the mission
properties(amendin manufacturethereo and
g Sec. 108 of f (amending Sec. distributio
NIRC) 106 of n
NIRC);12% VAT companies
on importation of , and use
goods and reduced or lease of
rates for certain properties
imported products (amending
including Sec. 108
petroleum of NIRC)
products
(amending Sec.
107 of NIRC); and
12% VAT on sale
of services and
use or lease of
properties and a
reduced rate for
certain services
including power
generation
(amending Sec.
108 of NIRC)
With regard to the “no pass-on” provision
No Provides that the Provides that the
similar VAT imposed on VAT imposed
provision power generation onsales of electricity
and on the sale of bygeneration
petroleum companies and
products shall be services of
absorbed by transmission
generation companies and
companies or distribution
sellers, companies, as well as
respectively, and those of franchise
shall not be grantees of electric
passed on to utilities shall not
consumers apply to residential
end-users. VAT shall
be absorbed by
generation,
transmission, and
distribution
companies.
99
With regard to 70% limit on input tax credit
Provides that the No Provides that the
input tax credit similar input tax credit
for capital goods provision for capital goods
on which a VAT on which a VAT
has been paid has been paid
shall be equally shall be equally
distributed over 5 distributed over 5
years or the years or the
depreciable life of depreciable life
such capital of such capital
goods; the input goods; the input
tax credit for tax credit for
goods and goods and
services other services other
than capital goods than capital
shall not exceed goods shall not
5% of the total exceed 90% of
amount of such the output VAT.
goods and
services; and for
persons engaged
in retail trading of
goods, the
allowable input
tax credit shall
not exceed 11%
of the total
amount of goods
purchased.
With regard to amendments to be made to NIRC
provisions regarding income and excise taxes
No similar No similar Provided for amendments
provision provision to several NIRC
provisions regarding
corporate income,
percentage, franchise and
excise taxes
The disagreements between the provisions in the House bills and the Senate bill were with regard to (1) what rate of
VAT is to be imposed; (2) whether only the VAT imposed on
100
0 ANNOTATED
electricity generation, transmission and distribution companies should not be passed on to consumers, as proposed in
the Senate bill, or both the VAT imposed on electricity generation, transmission and distribution companies and the
VAT imposed on sale of petroleum products should not be passed on to consumers, as proposed in the House bill;
(3) in what manner input tax credits should be limited; (4) and whether the NIRC provisions on corporate income
taxes, percentage, franchise and excise taxes should be amended.
There being differences and/or disagreements on the foregoing provisions of the House and Senate bills, the
Bicameral Conference Committee was mandated by the rules of both houses of Congress to act on the same by
settling said differences and/or disagreements. The Bicameral Conference Committee acted on the disagreeing
provisions by making the following changes:
1. 1.With regard to the disagreement on the rate of VAT to be imposed, it would appear from the Conference
Committee Report that the Bicameral Conference Committee tried to bridge the gap in the difference
between the 10% VAT rate proposed by the Senate, and the various rates with 12% as the highest VAT
rate proposed by the House, by striking a compromise whereby the present 10% VAT rate would be
retained until certain conditions arise, i.e., the value-added tax collection as a percentage of gross
domestic product (GDP) of the previous year exceeds 2 4/5%, or National Government deficit as a
percentage of GDP of the previous year exceeds 1 1/2%, when the President, upon recommendation of the
Secretary of Finance shall raise the rate of VAT to 12% effective January 1, 2006.
2. 2.With regard to the disagreement on whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers or whether both the VAT
imposed on electricity generation, transmission and distribution companies and the VAT imposed on sale
of petroleum products may be passed on to con-
101
VOL. 469, SEPTEMBER 1, 2005 101
1. sumers, the Bicameral Conference Committee chose to settle such disagreement by altogether deleting
from its Report any no pass-on provision.
2. 3.With regard to the disagreement on whether input tax credits should be limited or not, the Bicameral
Conference Committee decided to adopt the position of the House by putting a limitation on the amount
of input tax that may be credited against the output tax, although it crafted its own language as to the
amount of the limitation on input tax credits and the manner of computing the same by providing thus:
(A) Creditable Input Tax.—. . .

...
Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly over the
month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition cost for such
goods, excluding the VAT component thereof, exceeds one million Pesos (P1,000,000.00): PROVIDED,
however, that if the estimated useful life of the capital good is less than five (5) years, as used for
depreciation purposes, then the input VAT shall be spread over such shorter period: . . .
(B) Excess Output or Input Tax.—If at the end of any taxable quarter the output tax exceeds the input
tax, the excess shall be paid by the VAT-registered person. If the input tax exceeds the output tax, the
excess shall be carried over to the succeeding quarter or quarters: PROVIDED that the input tax inclusive
of input VAT carried over from the previous quarter that may be credited in every quarter shall not
exceed seventy percent (70%) of the output VAT: PROVIDED, HOWEVER, THAT any input tax
attributable to zero-rated sales by a VAT-registered person may at his option be refunded or credited
against other internal revenue taxes, . . .
1. 4.With regard to the amendments to other provisions of the NIRC on corporate income tax, franchise,
percentage and excise taxes, the conference committee decided to include such amendments and basically
adopted the provisions found in Senate Bill No. 1950, with some changes as to the rate of the tax to be
imposed.
102
2 ANNOTATED
Under the provisions of both the Rules of the House of Representatives and Senate Rules, the Bicameral Conference
Committee is mandated to settle the differences between the disagreeing provisions in the House bill and the Senate
bill. The term “settle” is synonymous to “reconcile” and “harmonize.” To reconcile or harmonize disagreeing
25
provisions, the Bicameral Conference Committee may then (a) adopt the specific provisions of either th e House bill
or Senate bill, (b) decide that neither provisions in the House bill or the provisions in the Senate bill would be
carried into the final form of the bill, and/or (c) try to arrive at a compromise between the disagreeing provisions.
In the present case, the changes introduced by the Bicam-eral Conference Committee on disagreeing provisions
were meant only to reconcile and harmonize the disagreeing provisions for it did not inject any idea or intent that is
wholly foreign to the subject embraced by the original provisions.
The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted by the Senate
is retained until such time that certain conditions arise when the 12% VAT wanted by the House shall be imposed,
appears to be a compromise to try to bridge the difference in the rate of VAT proposed by the two houses of
Congress. Nevertheless, such compromise is still totally within the subject of what rate of VAT should be imposed
on taxpayers.
The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the Bicameral
Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate Panel, explained the
reason for deleting the no pass-on provision in this wise:
. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that no
sector should be a beneficiary of legislative grace, neither should any sector be discriminated on. The
VAT is an indirect tax. It is a pass on-tax. And let’s keep it
_______________
Webster’s Third New International Dictionary, p. 1897.

25
103
VOL. 469, SEPTEMBER 1, 2005 103
plain and simple. Let’s not confuse the bill and put a no pass-on provision. Two-thirds of the world have a
VAT system and in this two-thirds of the globe, I have yet to see a VAT with a no pass-though provision.
So, the thinking of the Senate is basically simple, let’s keep the VAT simple. (Emphasis supplied)
26
Rep. Teodoro Locsin further made the manifestation that the no pass-on provision “never really enjoyed the support
of either House.” 27
With regard to the amount of input tax to be credited against output tax, the Bicameral Conference Committee
came to a compromise on the percentage rate of the limitation or cap on such input tax credit, but again, the change
introduced by the Bicameral Conference Committee was totally within the intent of both houses to put a cap on
input tax that may be credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to “plug a glaring loophole in the tax policy and administration by
creating vital restrictions on the claiming of input VAT tax credits . . .” and “[b]y introducing limitations on the
claiming of tax credit, we are capping a major leakage that has placed our collection efforts at an apparent
disadvantage.” 28
As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in Senate Bill No.
1950, since said provisions were among those referred to it, the conference committee had to act on the same and it
basically adopted the version of the Senate.
Thus, all the changes or modifications made by the Bicameral Conference Committee were germane to subjects
of the
_______________
TSN, Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1950 and House Bill Nos.
26
3705 and 3555, May 10, 2005, p. 4.

Id., p. 3.
27
Sponsorship Speech of Representative Teves, in behalf of Representative Jesli Lapus, TSN, January 7, 2005, pp. 34-
28
35.
104
4 ANNOTATED
provisions referred to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee. In the earlier cases
of Philippine Judges Association vs. Prado and Tolentino vs. Secretary of Finance, the Court recognized the long-
29 30
standing legislative practice of giving said conference committee ample latitude for compromising differences
between the Senate and the House. Thus, in the Tolentinocase, it was held that:
. . . it is within the power of a conference committee to include in its report an entirely new provision that
is not found either in the House bill or in the Senate bill. If the committee can propose an amendment
consisting of one or two provisions, there is no reason why it cannot propose several provisions,
collectively considered as an “amendment in the nature of a substitute,” so long as such amendment is
germane to the subject of the bills before the committee. After all, its report was not final but needed the
approval of both houses of Congress to become valid as an act of the legislative department. The charge
that in this case the Conference Committee acted as a third legislative chamber is thus without any
basis. (Emphasis supplied)
31
B. R.A. No. 9337 Does Not Violate Article VI,

Section 26(2) of the Constitution on the
“No-Amendment Rule”
Article VI, Sec. 26 (2) of the Constitution, states:

No bill passed by either House shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to its Members three days before its
passage, except when the President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
_______________
29
30
Supra, Note 23.
31
Id., p. 668.
105
VOL. 469, SEPTEMBER 1, 2005 105
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal.
Petitioners’ argument that the practice where a bicameral conference committee is allowed to add or delete
provisions in the House bill and the Senate bill after these had passed three readings is in effect a circumvention of
the “no amendment rule” (Sec. 26 (2), Art. VI of the 1987 Constitution), fails to convince the Court to deviate from
its ruling in the Tolentino case that:
Nor is there any reason for requiring that the Committee’s Report in these cases must have undergone
three readings in each of the two houses. If that be the case, there would be no end to negotiation since
each house may seek modification of the compromise bill . . . .
Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the first
time in either house of Congress, not to the conference committee report. (Emphasis supplied)
32
The Court reiterates here that the “no-amendment rule” refers only to the procedure to be followed by each house of
Congress with regard to bills initiated in each of said respective houses, before said bill is transmitted to the other
house for its concurrence or amendment. Verily, to construe said provision in a way as to proscribe any further
changes to a bill after one house has voted on it would lead to absurdity as this would mean that the other house of
Congress would be deprived of its constitutional power to amend or introduce changes to said bill. Thus, Art. VI,
Sec. 26 (2) of the Constitution cannot be taken to mean that the introduction by the Bicameral Conference
Committee of amendments and modifications to disagreeing provisions in bills that have been acted upon by both
houses of Congress is prohibited.
_______________
Id., p. 671.
32
106
6 ANNOTATED
C. R.A. No. 9337 Does Not Violate Article VI,
Section 24 of the Constitution on Exclusive
Origination of Revenue Bills
Coming to the issue of the validity of the amendments made regarding the NIRC provisions on corporate income
taxes and percentage, excise taxes. Petitioners refer to the following provisions, to wit:
Section
27 Rates of Income Tax on Domestic
Corporation
28(A)(1) Tax on Resident Foreign Corporation
28(B)(1) Inter-corporate Dividends
34(B)(1) Inter-corporate Dividends
116 Tax on Persons Exempt from VAT
117 Percentage Tax on domestic carriers and
keepers ofGarage
119 Tax on franchises
121 Tax on banks and Non-Bank Financial
Intermediaries
148 Excise Tax on manufactured oils and
other fuels
151 Excise Tax on mineral products
236 Registration requirements
237 Issuance of receipts or sales or
commercial invoices
288 Disposition of Incremental Revenue
Petitioners claim that the amendments to these provisions of the NIRC did not at all originate from the House. They
aver that House Bill No. 3555 proposed amendments only regarding Sections 106, 107, 108, 110 and 114 of the
NIRC, while House Bill No. 3705 proposed amendments only to Sections 106, 107, 108, 109, 110 and 111 of the
NIRC; thus, the other sections of the NIRC which the Senate amended but which amendments were not found in the
House bills are not intended to be amended by the House of Representatives. Hence, they argue that since the
proposed amendments did
107
VOL. 469, SEPTEMBER 1, 2005 107
not originate from the House, such amendments are a violation of Article VI, Section 24 of the Constitution.
The argument does not hold water.
Article VI, Section 24 of the Constitution reads:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives but the
In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that initiated the move for
amending provisions of the NIRC dealing mainly with the value-added tax. Upon transmittal of said House bills to
the Senate, the Senate came out with Senate Bill No. 1950 proposing amendments not only to NIRC provisions on
the value-added tax but also amendments to NIRC provisions on other kinds of taxes. Is the introduction by the
Senate of provisions not dealing directly with the value- added tax, which is the only kind of tax being amended in
the House bills, still within the purview of the constitutional provision authorizing the Senate to propose or concur
with amendments to a revenue bill that originated from the House?
The foregoing question had been squarely answered in the Tolentino case, wherein the Court held, thus:
. . . To begin with, it is not the law—but the revenue bill—which is required by the Constitution to
“originate exclusively” in the House of Representatives. It is important to emphasize this, because a bill
originating in the House may undergo such extensive changes in the Senate that the result may be a
rewriting of the whole. . . . At this point, what is important to note is that, as a result of the Senate action,
a distinct bill may be produced. To insist that a revenue statute—and not only the bill which initiated
the legislative process culminating in the enactment of the law—must substantially be the same as
the House bill would be to deny the Senate’s power not only to “concur with amendments” but also
to “propose amendments.” It would be to violate
108
8 ANNOTATED
the coequality of legislative power of the two houses of Congress and in fact make the House superior to
the Senate.
...
. . . Given, then, the power of the Senate to propose amendments, the Senate can propose its own
version even with respect to bills which are required by the Constitution to originate in the House.
...
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills,
bills authorizing an increase of the public debt, private bills and bills of local application must come from
the House of Representatives on the theory that, elected as they are from the districts, the members of
the House can be expected to be more sensitive to the local needs and problems. On the other hand,
the senators, who are elected at large, are expected to approach the same problems from the
national perspective. Both views are thereby made to bear on the enactment of such laws. (Emphasis 33
supplied)
Since there is no question that the revenue bill exclusively originated in the House of Representatives, the Senate
was acting within its constitutional power to introduce amendments to the House bill when it included provisions in
Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes. Verily, Article VI,
Section 24 of the Constitution does not contain any prohibition or limitation on the extent of the amendments that
may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not been touched in the
House bills are still in furtherance of the intent of the House in initiating the subject revenue bills. The Explanatory
Note of House Bill No. 1468, the very first House bill introduced on the floor, which was later substituted by House
Bill No. 3555, stated:
_______________
Id., pp. 661-663.

33
109
VOL. 469, SEPTEMBER 1, 2005 109
One of the challenges faced by the present administration is the urgent and daunting task of solving the
country’s serious financial problems. To do this, government expenditures must be strictly monitored and
controlled and revenues must be significantly increased. This may be easier said than done, but our fiscal
authorities are still optimistic the government will be operating on a balanced budget by the year 2009. In
fact, several measures that will result to significant expenditure savings have been identified by the
administration. It is supported with a credible package of revenue measures that include measures to
improve tax administration and control the leakages in revenues from income taxes and the value-
added tax (VAT). (Emphasis supplied)
Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:
In the budget message of our President in the year 2005, she reiterated that we all acknowledged that on
top of our agenda must be the restoration of the health of our fiscal system.
In order to considerably lower the consolidated public sector deficit and eventually achieve a balanced
budget by the year 2009, we need to seize windows of opportunities which might seem poignant in
the beginning, but in the long run prove effective and beneficial to the overall status of our
economy. One such opportunity is a review of existing tax rates, evaluating the relevance given our
present conditions. (Emphasis supplied)
34
Notably therefore, the main purpose of the bills emanating from the House of Representatives is to bring in sizeable
revenues for the government to supplement our country’s serious financial problems, and improve tax administration
and control of the leakages in revenues from income taxes and value-added taxes. As these house bills were
transmitted to the Senate, the latter, approaching the measures from the point of national perspective, can introduce
amendments within the purposes of those bills. It can provide for ways that
_______________
Transcript of Session Proceedings, January 7, 2005, pp. 19-20.

34
110
0 ANNOTATED
would soften the impact of the VAT measure on the consumer, i.e., by distributing the burden across all sectors
instead of putting it entirely on the shoulders of the consumers. The sponsorship speech of Sen. Ralph Recto on why
the provisions on income tax on corporation were included is worth quoting:
All in all, the proposal of the Senate Committee on Ways and Means will raise P64.3 billion in additional
revenues annually even while by mitigating prices of power, services and petroleum products.
However, not all of this will be wrung out of VAT. In fact, only P48.7 billion amount is from the VAT
on twelve goods and services. The rest of the tab—P10.5 billion- will be picked by corporations. What we
therefore prescribe is a burden sharing between corporate Philippines and the consumer. Why should the
latter bear all the pain? Why should the fiscal salvation be only on the burden of the consumer?
The corporate world’s equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise P10.5 billion a year. After that, the rate will slide back, not to
its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal medicine
will have an expiry date.
For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the tunnel, this
government will keep on making the tunnel long.
The responsibility will not rest solely on the weary shoulders of the small man. Big business will be
there to share the burden. 35
As the Court has said, the Senate can propose amendments and in fact, the amendments made on provisions in the
tax on
_______________
Journal of the Senate, Session No. 67, March 7, 2005, pp. 727-728.
35
111
VOL. 469, SEPTEMBER 1, 2005 111
income of corporations are germane to the purpose of the house bills which is to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the reforms to
the VAT system, as these sections would cushion the effects of VAT on consumers. Considering that certain goods
and services which were subject to percentage tax and excise tax would no longer be VAT-exempt, the consumer
would be burdened more as they would be paying the VAT in addition to these taxes. Thus, there is a need to amend
these sections to soften the impact of VAT. Again, in his sponsorship speech, Sen. Recto said:
However, for power plants that run on oil, we will reduce to zero the present excise tax on bunker fuel, to
lessen the effect of a VAT on this product.
For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.
And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the
VAT chain, we will however bring down the excise tax on socially sensitive products such as diesel,
bunker, fuel and kerosene.
...
What do all these exercises point to? These are not contortions of giving to the left hand what was
taken from the right. Rather, these sprang from our concern of softening the impact of VAT, so that the
people can cushion the blow of higher prices they will have to pay as a result of VAT. 36
The other sections amended by the Senate pertained to matters of tax administration which are necessary for the
implementation of the changes in the VAT system.
To reiterate, the sections introduced by the Senate are germane to the subject matter and purposes of the house
bills, which is to supplement our country’s fiscal deficit, among
_______________
Id., p. 726.
36
112
2 ANNOTATED
others. Thus, the Senate acted within its power to propose those amendments.
SUBSTANTIVE ISSUES
I.
Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC, violate
the following provisions of the Constitution:

A. No Undue Delegation of Legislative

Power
Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in common that
Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108, respectively, of the NIRC giving the
President the stand-by authority to raise the VAT rate from 10% to 12% when a certain condition is met, constitutes
undue delegation of the legislative power to tax.
The assailed provisions read as follows:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or Properties.—
(A) Rate and Base of Tax.—There shall be levied, assessed and collected on every sale, barter or exchange of goods
or properties, a value-added tax equivalent to ten percent (10%) of the gross selling price or gross value in money of
the goods or properties sold, bartered or exchanged, such tax to be paid by the seller or transferor: provided, that
the President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006, raise
the rate of value-added tax to twelve percent (12%), after any of the following conditions has been satisfied.
113
VOL. 469, SEPTEMBER 1, 2005 113
1. (i)value-added tax collection as a percentage of Gross Domestic Product (GDP) of the

previous year exceeds two and four-fifth percent (2 4/5%) or
2. (ii)national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 107. Value-Added Tax on Importation of Goods.—
(A) In General.—There shall be levied, assessed and collected on every importation of goods a value-added tax
equivalent to ten percent (10%) based on the total value used by the Bureau of Customs in determining tariff and
customs duties, plus customs duties, excise taxes, if any, and other charges, such tax to be paid by the importer prior
to the release of such goods from customs custody: Provided, That where the customs duties are determined on the
basis of the quantity or volume of the goods, the value-added tax shall be based on the landed cost plus excise taxes,
if any: provided, further, that the President, upon the recommendation of the Secretary of Finance, shall,
effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%) after any of the following
conditions has been satisfied.
1. (i)value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%) or
2. (ii)national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 ½%).
SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties—
(A) Rate and Base of Tax.—There shall be levied, assessed and collected, a value-added tax equivalent to ten
percent (10%) of gross receipts derived from the sale or exchange
114
4 ANNOTATED
of services: provided, that the President, upon the recommendation of the Secretary of Finance, shall,
effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following
conditions has been satisfied.
1. (i)value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year
exceeds two and four-fifth percent (2 4/5%) or
2. (ii)national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1 1/2%).(Emphasis supplied)
Petitioners allege that the grant of the stand-by authorityto the President to increase the VAT rate is a virtual
abdication by Congress of its exclusive power to tax because such delegation is not within the purview of Section 28
(2), Article VI of the Constitution, which provides:
The Congress may, by law, authorize the President to fix within specified limits, and 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.
They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties as well as on the sale
or exchange of services, which cannot be included within the purview of tariffs under the exempted delegation as the
latter refers to customs duties, tolls or tribute payable upon merchandise to the government and usually imposed on
goods or merchandise imported or exported.
Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President the legislative
power to tax is contrary to republicanism. They insist that accountability, responsibility and transparency should
dictate the actions of Congress and they should not pass to the President the decision to impose taxes. They also
argue that the law
115
VOL. 469, SEPTEMBER 1, 2005 115
also effectively nullified the President’s power of control, which includes the authority to set aside and nullify the
acts of her subordinates like the Secretary of Finance, by mandating the fixing of the tax rate by the President upon
the recommendation of the Secretary of Finance.
Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or create the conditions
provided by the law to bring about either or both the conditions precedent.
On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the imposition of the
12% rate would be subject to the whim of the Secretary of Finance, an unelected bureaucrat, contrary to the
principle of no taxation without representation. They submit that the Secretary of Finance is not mandated to give a
favorable recommendation and he may not even give his recommendation. Moreover, they allege that no guiding
standards are provided in the law on what basis and as to how he will make his recommendation. They claim,
nonetheless, that any recommendation of the Secretary of Finance can easily be brushed aside by the President since
the former is a mere alter ego of the latter, such that, ultimately, it is the President who decides whether to impose
the increased tax rate or not.
A brief discourse on the principle of non-delegation of powers is instructive.
The principle of separation of powers ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. A logical corollary
37
to the doctrine of separation of powers is the principle of non-delegation of powers, as expressed in the Latin
maxim: potestas delegata non delegari potest which means “what has been
_______________
See Angara vs. Electoral Commission, No. 45081, July 15, 1936, 63 Phil. 139, 156.
37
116
6 ANNOTATED
delegated, cannot be delegated.” This doctrine is based on the ethical principle that such as delegated power
38
constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another. 39
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that “ the Legislative power
shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives .”
The powers which Congress is prohibited from delegating are those which are strictly, or inherently and exclusively,
legislative. Purely legislative power, which can never be delegated, has been described as the authority to make a
complete law—complete as to the time when it shall take effect and as to whom it shall be applicable—and to
determine the expediency of its enactment. Thus, the rule is that in order that a court may be justified in holding a
40
statute unconstitutional as a delegation

_______________
Defensor-Santiago vs. Commission on Elections, G.R. No. 127325, March 19, 1997, 270 SCRA 106, 153; People vs.
38
Rosenthal, Nos. 46076 & 46077, June 12, 1939, 68 Phil. 328; ISAGANI A. CRUZ, Philippine Political Law 86 (1996).
Judge Cooley enunciates the doctrine in the following oft-quoted language: “One of the settled maxims in constitutional
law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other
body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing
other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any
other body for those to which alone the people have seen fit to confide this sovereign trust. ” (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224)
United States vs. Barrias, No. 4349, September 24, 1908, 11 Phil. 327, 330.
39
16 Am Jur 2d, Constitutional Law, § 337.

40
117
VOL. 469, SEPTEMBER 1, 2005 117
of legislative power, it must appear that the power involved is purely legislative in nature—that is, one appertaining
exclusively to the legislative department. It is the nature of the power, and not the liability of its use or the manner of
its exercise, which determines the validity of its delegation.
Nonetheless, the general rule barring delegation of legislative powers is subject to the following recognized
limitations or exceptions:
1. (1)Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
2. (2)Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution;
3. (3)Delegation to the people at large;
4. (4)Delegation to local governments; and
5. (5)Delegation to administrative bodies.
In every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if
the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard—the limits of which are sufficiently determinate and determinable—to which the
41
delegate must conform in the performance of his functions. A suffi-

42
_______________
Pelaez vs. Auditor General, No. L-23825, December 24, 1965, 122 Phil. 965, 974; 15 SCRA 569, 577,
41
citing Calalang vs. Williams, No. 47800, December 2, 1940, 70 Phil. 726; Pangasinan Transp. Co. vs. Public Service
Commission, No. 47065, June 26, 1940, 70 Phil. 221; Cruz vs. Youngberg, No. 34674, October 26, 1931, 56 Phil.
234; Alegre vs. Collector of Customs, No. 30783, August 27, 1929, 53 Phil. 394 et seq.
Pelaez vs. Auditor General, supra, citing People vs. Lim Ho, No. L-12091-2, January 28, 1960, 106 Phil.
42
887; People vs. Jolliffee, No. L-9553, May 13, 1959, 105 Phil 677; People vs. Vera, No. 45685, November 16, 1937, 65
Phil. 56; U.S. vs. Nag Tang Ho, No. L-17122, February 27, 1922, 43 Phil. 1; Compañia General de Tabacos vs.
118
8 ANNOTATED
cient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. Both
43
tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step
into the shoes of the legislature and exercise a power essentially legislative.
44
In People vs. Vera, the Court, through eminent Justice Jose P. Laurel, expounded on the concept and extent of
45
delegation of power in this wise:

In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature.
...
‘The true distinction,’ says Judge Ranney, ‘is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made.’
...
It is contended, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community. In Wayman vs.
Southard, the Supreme Court
_______________
Board of Public Utility, No. 11216, March 6, 1916, 34 Phil. 136 et seq.

43
Edu vs. Ericta, No. L-32096, October 24, 1970, 35 SCRA 481, 497.
44
Eastern Shipping Lines, Inc. vs. Philippine Overseas Employment Administration, No. L-76633, October 18, 1988, 166
SCRA 533, 543-544.
45
No. 45685, November 16, 1937, 65 Phil. 56.
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VOL. 469, SEPTEMBER 1, 2005 119
of the United States ruled that the legislature may delegate a power not legislative which it may itself
rightfully exercise. The power to ascertain facts is such a power which may be delegated. There is
nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process common to all branches of the
government.Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of
legislative authority on account of the complexity arising from social and economic forces at work in this
modern industrial age, the orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the
following language—speaking of declaration of legislative power to administrative agencies: The
principle which permits the legislature to provide that the administrative agent may determine
when the circumstances are such as require the application of a law is defended upon the ground
that at the time this authority is granted, the rule of public policy, which is the essence of the
legislative act, is determined by the legislature. In other words, the legislature, as it is its duty to do,
determines that, under given circumstances, certain executive or administrative action is to be
taken, and that, under other circumstances, different or no action at all is to be taken. What is thus
left to the administrative official is not the legislative determination of what public policy demands,
but simply the ascertainment of what the facts of the case require to be done according to the terms
of the law by which he is governed. The efficiency of an Act as a declaration of legislative will must,
of course, come from Congress, but the ascertainment of the contingency upon which the Act shall
take effect may be left to such agencies as it may designate. The legislature, then, may provide that
a law shall take effect upon the happening of future specified contingencies leaving to some other
person or body the power to determine when the specified contingency has arisen. (Emphasis
supplied). 46
_______________
Id., pp. 115-120.

46
120
0 ANNOTATED
In Edu vs. Ericta, the Court reiterated:
47
What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them; the test is the completeness of the statute in all its terms and provisions when it leaves the hands of
the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislative does not abdicate
its functions when it describes what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may be the only way in which the legislative process can go
forward. A distinction has rightfully been made between delegation of power to make the laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be
done, and delegation of authority or discretion as to its execution to be exercised under and in
pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be
regarded as denying the legislature the necessary resources of flexibility and practicability. (Emphasis
supplied). 48
Clearly, the legislature may delegate to executive officers or bodies the power to determine certain facts or
conditions, or the happening of contingencies, on which the operation of a statute is, by its terms, made to depend,
but the legislature must prescribe sufficient standards, policies or limitations on their authority. While the power to
49
tax cannot be delegated to executive agencies, details as to the enforcement and administration of an exercise of
such power may be left to them, including the power to determine the existence of facts on which its operation
depends. 50
The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of legislation is not
of itself a legislative function, but is simply ancillary to legisla-
_______________
Supra, note 43.

47
Id., pp. 496-497.

48
16 C.J.S., Constitutional Law, § 138.

49
Ibid.
50
121
VOL. 469, SEPTEMBER 1, 2005 121
tion. Thus, the duty of correlating information and making recommendations is the kind of subsidiary activity which
the legislature may perform through its members, or which it may delegate to others to perform. Intelligent
legislation on the complicated problems of modern society is impossible in the absence of accurate information on
the part of the legislators, and any reasonable method of securing such information is proper. The Constitution as a
51
continuously operative charter of government does not require that Congress find for itself every fact upon which it
desires to base legislative action or that it make for itself detailed determinations which it has declared to be
prerequisite to application of legislative policy to particular facts and circumstances impossible for Congress itself
properly to investigate. 52
In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5 and 6 which
reads as follows:
That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions has
been satisfied:
1. (i)Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
2. (ii)National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 1/2%).
The case before the Court is not a delegation of legislative power. It is simply a delegation of ascertainment of facts
upon which enforcement and administration of the increase rate under the law is contingent. The legislature has
made the
_______________
16 Am. Jur. 2d, Constitutional Law § 340.

51
Yajus vs. United States, 321 US 414, 88 L.Ed. 834, 64 S Ct. 660, 28 Ohio Ops 220.
52
122
2 ANNOTATED
operation of the 12% rate effective January 1, 2006, contingent upon a specified fact or condition. It leaves the entire
operation or non-operation of the 12% rate upon factual matters outside of the control of the executive.
No discretion would be exercised by the President. Highlighting the absence of discretion is the fact that the
word shall is used in the common proviso. The use of the word shall connotes a mandatory order. Its use in a statute
denotes an imperative obligation and is inconsistent with the idea of discretion. Where the law is clear and
53
unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the
mandate is obeyed. 54
Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the existence of any of
the conditions specified by Congress. This is a duty which cannot be evaded by the President. Inasmuch as the law
specifically uses the word shall, the exercise of discretion by the President does not come into play. It is a clear
directive to impose the 12% VAT rate when the specified conditions are present. The time of taking into effect of
the 12% VAT rate is based on the happening of a certain specified contingency, or upon the ascertainment of certain
facts or conditions by a person or body other than the legislature itself.
The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that the law
effectively nullified the President’s power of control over the Secretary of Finance by mandating the fixing of the
tax rate by the President upon the recommendation of the Secretary of Finance. The Court cannot also subscribe to
the position of petitioners
_______________
Province of Batangas vs. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736; Enriquez vs. Court of
53
Appeals, G.R. No. 140473, January 28, 2003, 396 SCRA 377; Codoy vs. Calugay, G.R. No. 123486, August 12, 1999, 312
SCRA 333.
Province of Batangas vs. Romulo, supra; Quisumbing vs. Meralco, G.R. No. 142943, April 3, 2002, 380 SCRA 195;
54
Agpalo, Statutory Construction, 1990 ed., p. 45.

123
VOL. 469, SEPTEMBER 1, 2005 123
Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase “upon the
recommendation of the Secretary of Finance.” Neither does the Court find persuasive the submission of petitioners
Escudero, et al.that any recommendation by the Secretary of Finance can easily be brushed aside by the President
since the former is a mere alter ego of the latter.
When one speaks of the Secretary of Finance as the alter ego of the President, it simply means that as head of the
Department of Finance he is the assistant and agent of the Chief Executive. The multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive departments, and the
acts of the secre-taries of such departments, such as the Department of Finance, performed and promulgated in the
regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of
the Chief Executive. The Secretary of Finance, as such, occupies a political position and holds office in an advisory
capacity, and, in the language of Thomas Jefferson, “should be of the President’s bosom confidence” and, in the
language of Attorney-General Cushing, is “subject to the direction of the President.” 55
In the present case, in making his recommendation to the President on the existence of either of the two
conditions, the Secretary of Finance is not acting as the alter ego of the President or even her subordinate. In such
instance, he is not subject to the power of control and direction of the President. He is acting as the agent of the
legislative department, to determine and declare the event upon which its expressed will is to take effect. The 56
Secretary of Finance becomes the means or tool by which legislative policy is determined and
_______________
Villena vs. Secretary of Interior, No. 46570, April 21, 1939, 67 Phil 451, 463-464.
55
Alunan vs. Mirasol, G.R. No. 108399, July 31, 1997, 276 SCRA 501, 513-514, citing Panama Refining Co. vs.
56
Ryan, 293 U.S. 388, 79 L.Ed. 469 (1935).

124
4 ANNOTATED
implemented, considering that he possesses all the facilities to gather data and information and has a much broader
perspective to properly evaluate them. His function is to gather and collate statistical data and other pertinent
information and verify if any of the two conditions laid out by Congress is present. His personality in such instance
is in reality but a projection of that of Congress. Thus, being the agent of Congress and not of the President, the
President cannot alter or modify or nullify, or set aside the findings of the Secretary of Finance and to substitute the
judgment of the former for that of the latter.
Congress simply granted the Secretary of Finance the authority to ascertain the existence of a fact, namely,
whether by December 31, 2005, the value-added tax collection as a percentage of Gross Domestic Product (GDP) of
the previous year exceeds two and four-fifth percent (2 4/5%) or the national government deficit as a percentage of
GDP of the previous year exceeds one and one-half percent (1 1/2%). If either of these two instances has occurred,
the Secretary of Finance, by legislative mandate, must submit such information to the President. Then the 12% VAT
rate must be imposed by the President effective January 1, 2006. There is no undue delegation of legislative power
but only of the discretion as to the execution of a law. This is constitutionally permissible. Congress does not
57
abdicate its functions or unduly delegate power when it describes what job must be done, who must do it, and what
is the scope of his authority;
_______________
Compañia General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners, No. 11216, 34 Phil.
57
136; Cruz vs. Youngberg, No. 34674, October 26, 1931, 56 Phil. 234; People vs. Vera, No. 45685, November 16, 1937, 65
Phil. 56, 113; Edu vs. Ericta, No. L-32096, October 24, 1970, 35 SCRA 481; Tatad vs. Secretary of the Department of
Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330; Alunan vs. Mirasol, supra.
125
VOL. 469, SEPTEMBER 1, 2005 125
in our complex economy that is frequently the only way in which the legislative process can go forward. 58
As to the argument of petitioners ABAKADA GUROParty List, et al. that delegating to the President the
legislative power to tax is contrary to the principle of republicanism, the same deserves scant consideration.
Congress did not delegate the power to tax but the mere implementation of the law. The intent and will to increase
the VAT rate to 12% came from Congress and the task of the President is to simply execute the legislative policy.
That Congress chose to do so in such a manner is not within the province of the Court to inquire into, its task being
to interpret the law. 59
The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause, influence or create
the conditions to bring about either or both the conditions precedent does not deserve any merit as this argument is
highly speculative. The Court does not rule on allegations which are manifestly conjectural, as these may not exist at
all. The Court deals with facts, not fancies; on realities, not appearances. When the Court acts on appearances
instead of realities, justice and law will be short-lived.
B. The 12% Increase VAT Rate Does Not

Impose an Unfair and Unnecessary
Additional Tax Burden
Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and additional tax burden
on the people. Petitioners also argue that the 12% increase, dependent on any of the 2 conditions set forth in the
contested provisions, is ambiguous because it does not state if the VAT
_______________
Bowles vs. Willinghan, 321 US 503, 88 l Ed 892, 64 S Ct 641, 28 Ohio Ops 180.

58
United Residents of Dominican Hill, Inc. vs. Commission on the Settlement of Land Problems, G.R. No. 135945,
59
March 7, 2001, 353 SCRA 782; Commissioner of Internal Revenue vs. Santos, G.R. No. 119252, August 18, 1997, 277
SCRA 617, 630.
126
6 ANNOTATED
rate would be returned to the original 10% if the rates are no longer satisfied. Petitioners also argue that such rate is
unfair and unreasonable, as the people are unsure of the applicable VAT rate from year to year.
Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set forth
therein are satisfied, the President shall increase the VAT rate to 12%. The provisions of the law are clear. It does
not provide for a return to the 10% rate nor does it empower the President to so revert if, after the rate is increased to
12%, the VAT collection goes below the 2 4/5 of the GDP of the previous year or that the national government
deficit as a percentage of GDP of the previous year does not exceed 1 1/2%.
Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations be
introduced where none is provided for. Rewriting the law is a forbidden ground that only Congress may tread
upon. 60
Thus, in the absence of any provision providing for a return to the 10% rate, which in this case the Court finds
none, petitioners’ argument is, at best, purely speculative. There is no basis for petitioners’ fear of a fluctuating VAT
rate because the law itself does not provide that the rate should go back to 10% if the conditions provided in
Sections 4, 5 and 6 are no longer present. The rule is that where the provision of the law is clear and unambiguous,
so that there is no occasion for the court’s seeking the legislative intent, the law must be taken as it is, devoid of
judicial addition or subtraction.
61
Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to the President to
raise the
_______________
Commissioner of Internal Revenue vs. American Express International, Inc. (Philippine Branch), G.R. No. 152609,
60
June 29, 2005, 462 SCRA 197.

Acting Commissioner of Customs vs. MERALCO, No. L-23623, June 30, 1977, 77 SCRA 469, 473.
61
127
VOL. 469, SEPTEMBER 1, 2005 127
VAT collection to at least 2 4/5 of the GDP of the previous year, should be based on fiscal adequacy.
Petitioners obviously overlooked that increase in VAT collection is not the only condition. There is another
condition, i.e., the national government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 1/2%).
Respondents explained the philosophy behind these alternative conditions:
1. VAT/GDP Ratio > 2.8%
The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP is less
than 2.8%, it means that government has weak or no capability of implementing the VAT or that VAT is
not effective in the function of the tax collection. Therefore, there is no value to increase it to 12%
because such action will also be ineffectual.
2. Nat’l Gov’t Deficit/GDP >1.5%
The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition of
government has reached a relatively sound position or is towards the direction of a balanced budget
position. Therefore, there is no need to increase the VAT rate since the fiscal house is in a relatively
healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a need to increase the
VAT rate. 62
That the first condition amounts to an incentive to the President to increase the VAT collection does not render it
unconstitutional so long as there is a public purpose for which the law was passed, which in this case, is mainly to
raise revenue. In fact, fiscal adequacy dictated the need for a raise in revenue.
The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated by Adam Smith
in his Canons of Taxation (1776), as:
_______________
Respondents’ Memorandum, pp. 168-169.

62
128
8 ANNOTATED
IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the people as
little as possible over and above what it brings into the public treasury of the state. 63
It simply means that sources of revenues must be adequate to meet government expenditures and their variations. 64
The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe. During the
Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly depicted the country’s gloomy
state of economic affairs, thus:
First, let me explain the position that the Philippines finds itself in right now. We are in a position where
90 percent of our revenue is used for debt service. So, for every peso of revenue that we currently raise,
90 goes to debt service. That’s interest plus amortization of our debt. So clearly, this is not a sustainable
situation. That’s the first fact.
The second fact is that our debt to GDP level is way out of line compared to other peer countries that
borrow money from that international financial markets. Our debt to GDP is approximately equal to our
GDP. Again, that shows you that this is not a sustainable situation.
The third thing that I’d like to point out is the environment that we are presently operating in is not as
benign as what it used to be the past five years.
What do I mean by that?
In the past five years, we’ve been lucky because we were operating in a period of basically global
growth and low interest rates. The past few months, we have seen an inching up, in fact, a rapid increase
in the interest rates in the leading economies of the world. And, therefore, our ability to borrow at
reasonable prices is going to be challenged. In fact, ultimately, the question is our ability to access the
financial markets.
_______________
The Wealth of Nations, Book V, Chapter II.

63
Chavez vs. Ongpin, G.R. No. 76778, June 6, 1990, 186 SCRA 331, 338.
64
129
VOL. 469, SEPTEMBER 1, 2005 129
When the President made her speech in July last year, the environment was not as bad as it is now, at least
based on the forecast of most financial institutions. So, we were assuming that raising 80 billion would
put us in a position where we can then convince them to improve our ability to borrow at lower rates. But
conditions have changed on us because the interest rates have gone up. In fact, just within this room, we
tried to access the market for a billion dollars because for this year alone, the Philippines will have to
borrow 4 billion dollars. Of that amount, we have borrowed 1.5 billion. We issued last January a 25-year
bond at 9.7 percent cost. We were trying to access last week and the market was not as favorable and up
to now we have not accessed and we might pull back because the conditions are not very good.
So given this situation, we at the Department of Finance believe that we really need to front-end our
deficit reduction. Because it is deficit that is causing the increase of the debt and we are in what we call a
debt spiral. The more debt you have, the more deficit you have because interest and debt service eats and
eats more of your revenue. We need to get out of this debt spiral. And the only way, I think, we can get
out of this debt spiral is really have a front-end adjustment in our revenue base. 65
The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable catastrophe. Whether
the law is indeed sufficient to answer the state’s economic dilemma is not for the Court to judge. In
the Fariñas case, the Court refused to consider the various arguments raised therein that dwelt on the wisdom of
Section 14 of R.A. No. 9006 (The Fair Election Act), pronouncing that:
. . . policy matters are not the concern of the Court. Government policy is within the exclusive dominion
of the political branches of the government. It is not for this Court to look into the wisdom or propriety of
legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound
economic theory, whether it is the best means to achieve the desired results,
_______________
65
TSN, Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1950 and House Bill Nos. 3705
and 3555, April 25, 2005, pp. 5-6.
130
0 ANNOTATED
whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular
manner are matters for the judgment of the legislature, and the serious conflict of opinions does not
suffice to bring them within the range of judicial cognizance. 66
In the same vein, the Court in this case will not dawdle on the purpose of Congress or the executive policy, given
that it is not for the judiciary to “pass upon questions of wisdom, justice or expediency of legislation.”
67
II.
Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and Section
12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions of the
Constitution:
2. b.Article III, Section 1
A. Due Process and Equal Protection Clauses
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No. 9337, amending
Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending Section 114 (C) of the NIRC are
arbitrary, oppressive, excessive and confiscatory. Their argument is premised on the constitutional right against
deprivation of life, liberty of property without due process of law, as embodied in Article III, Section 1 of the
Constitution.
Petitioners also contend that these provisions violate the constitutional guarantee of equal protection of the law.
The doctrine is that where the due process and equal protection clauses are invoked, considering that they are not
_______________
G.R. No. 147387, December 10, 2003, 417 SCRA 503, 524.

66
National Housing Authority vs. Reyes, G.R. No. L-49439, June 29, 1983, 123 SCRA 245, 249.
67
131
VOL. 469, SEPTEMBER 1, 2005 131
fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a
conclusion. Absent such a showing, the presumption of validity must prevail. 68
Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the amount of input
tax that may be credited against the output tax. It states, in part: “[P]rovided, that the input tax inclusive of the input
VAT carried over from the previous quarter that may be credited in every quarter shall not exceed seventy percent
(70%) of the output VAT: . . .”
Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax due from or paid by
a VAT-registered person on the importation of goods or local purchase of good and services, including lease or use
of property, in the course of trade or business, from a VAT-registered person, and Output Tax is the value-added
tax due on the sale or lease of taxable goods or properties or services by any person registered or required to register
under the law.
Petitioners claim that the contested sections impose limitations on the amount of input tax that may be claimed.
In effect, a portion of the input tax that has already been paid cannot now be credited against the output tax.
Petitioners’ argument is not absolute. It assumes that the input tax exceeds 70% of the output tax, and therefore,
the input tax in excess of 70% remains uncredited. However, to the extent that the input tax is less than 70% of the
output tax, then 100% of such input tax is still creditable.
More importantly, the excess input tax, if any, is retained in a business’s books of accounts and remains
creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B), which provides that “if the input
tax exceeds the output tax, the excess shall be carried over to the succeeding
_______________
Sison vs. Ancheta, G.R. No. L-59431, July 25, 1984, 130 SCRA 654, 661.
68
132
2 ANNOTATED
quarter or quarters.” In addition, Section 112(B) allows a VAT-registered person to apply for the issuance of a tax
credit certificate or refund for any unused input taxes, to the extent that such input taxes have not been applied
against the output taxes. Such unused input tax may be used in payment of his other internal revenue taxes.
The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners exaggeratedly
contend. Their analysis of the effect of the 70% limitation is incomplete and one-sided. It ends at the net effect that
there will be unapplied/unutilized inputs VAT for a given quarter. It does not proceed further to the fact that such
unapplied/unutilized input tax may be credited in the subsequent periods as allowed by the carry-over provision of
Section 110(B) or that it may later on be refunded through a tax credit certificate under Section 112(B).
Therefore, petitioners’ argument must be rejected.
On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the 70% limitation on
the input tax. According to petitioner, the limitation on the creditable input tax in effect allows VAT-registered
establishments to retain a portion of the taxes they collect, which violates the principle that tax collection and
revenue should be for public purposes and expenditures
As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when he buys goods.
Output tax meanwhile is the tax due to the person when he sells goods. In computing the VAT payable, three
possible scenarios may arise:
First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the input taxes that he
paid and passed on by the suppliers, then no payment is required;
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VOL. 469, SEPTEMBER 1, 2005 133
Second, when the output taxes exceed the input taxes, the person shall be liable for the excess, which has to be paid
to the Bureau of Internal Revenue (BIR); and
69
Third, if the input taxes exceed the output taxes, the excess shall be carried over to the succeeding quarter or
quarters. Should the input taxes result from zero-rated or effectively zero-rated transactions, any excess over the
output taxes shall instead be refunded to the taxpayer or credited against other internal revenue taxes, at the
taxpayer’s option.70
Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person can credit his
input tax only up to the extent of 70% of the output tax. In layman’s term, the value-added taxes that a
person/taxpayer paid and passed on to him by a seller can only be credited up to 70% of the value-added taxes that is
due to him on a taxable transaction. There is no retention of any tax collection because the person/taxpayer has
already previously paid the input tax to a seller, and the seller will subsequently remit such input tax to the BIR. The
party directly liable for the payment of the tax is the seller. What only needs to be done is for the person/taxpayer to
71
apply or credit these input taxes, as evidenced by receipts, against his output taxes.
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax partakes the nature of
a property that may not be confiscated, appropriated, or limited without due process of law.
The input tax is not a property or a property right within the constitutional purview of the due process clause. A
VAT-registered person’s entitlement to the creditable input tax is a mere statutory privilege.
_______________
Section 8, R.A. No. 9337, amending Section 110(A)(B),NIRC.

69
Ibid.
70
Commissioner of Internal Revenue vs. Benguet Corp., G.R. Nos. 134587 & 134588, July 8, 2005, 463 SCRA 28.
71
134
4 ANNOTATED
The distinction between statutory privileges and vested rights must be borne in mind for persons have no vested
rights in statutory privileges. The state may change or take away rights, which were created by the law of the state,
although it may not take away property, which was vested by virtue of such rights. 72
Under the previous system of single-stage taxation, taxes paid at every level of distribution are not recoverable
from the taxes payable, although it becomes part of the cost, which is deductible from the gross revenue. When Pres.
Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all sales, it was then that the crediting of the input
tax paid on purchase or importation of goods and services by VAT-registered persons against the output tax was
introduced. This was adopted by the Expanded VAT Law (R.A. No. 7716), and The Tax Reform Act of 1997 (R.A.
73 74
No. 8424). The right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that
75
also the law can remove, or in this case, limit.

Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A. No. 9337,
amending Section 110(A) of the NIRC, which provides:
SEC. 110. Tax Credits.—
(A) Creditable Input Tax.—. . .
Provided, That the input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly over the
month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition cost for such
goods, excluding the VAT component thereof, exceeds One million pesos (P1,000,000.00):
_______________
72
United Paracale Mining Co. vs. Dela Rosa, G.R. Nos. 63786-87, April 7, 1993, 221 SCRA 108, 115.
73
E.O. No. 273, Section 1.
74
Section 5.
75
Section 110(B).
135
VOL. 469, SEPTEMBER 1, 2005 135
Provided, however, That if the estimated useful life of the capital goods is less than five (5) years, as used
for depreciation purposes, then the input VAT shall be spread over such a shorter
period: Provided, finally, That in the case of purchase of services, lease or use of properties, the input tax
shall be creditable to the purchaser, lessee or license upon payment of the compensation, rental, royalty or
fee.
The foregoing section imposes a 60-month period within which to amortize the creditable input tax on purchase or
importation of capital goods with acquisition cost of P1 Million pesos, exclusive of the VAT component. Such
spread out only poses a delay in the crediting of the input tax. Petitioners’ argument is without basis because the
taxpayer is not permanently deprived of his privilege to credit the input tax.
It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in this case amounts
to a 4-year interest-free loan to the government. In the same breath, Congress also justified its move by saying that
76
the provision was designed to raise an annual revenue of 22.6 billion. The legislature also dispelled the fear that the
77
provision will fend off foreign investments, saying that foreign investors have other tax incentives provided by law,
and citing the case of China, where despite a 17.5% non-creditable VAT, foreign investments were not
deterred. Again, for whatever is the purpose of the 60-month amortization, this involves executive economic policy
78
and legislative wisdom in which the Court cannot intervene.

With regard to the 5% creditable withholding tax imposed on payments made by the government for taxable
transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads:
_______________
Journal of the Senate, Session No. 71, March 15, 2005, p. 803.
76
Id., Session No. 67, March 7, 2005, p. 726.

77
Id., Session No. 71, March 15, 2005, p. 803.

78
136
6 ANNOTATED
SEC. 114. Return and Payment of Value-added Tax.—
(C) Withholding of Value-added Tax.—The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs) shall,
before making payment on account of each purchase of goods and services which are subject to the value-
added tax imposed in Sections 106 and 108 of this Code, deduct and withhold a final value-added tax at
the rate of five percent (5%) of the gross payment thereof: Provided, That the payment for lease or use of
properties or property rights to nonresident owners shall be subject to ten percent (10%) withholding tax
at the time of payment. For purposes of this Section, the payor or person in control of the payment shall
be considered as the withholding agent.
The value-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made.
Section 114(C) merely provides a method of collection, or as stated by respondents, a more simplified VAT
withholding system. The government in this case is constituted as a withholding agent with respect to their payments
for goods and services.
Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be withheld—3% on
gross payments for purchases of goods; 6% on gross payments for services supplied by contractors other than by
public works contractors; 8.5% on gross payments for services supplied by public work contractors; or 10% on
payment for the lease or use of properties or property rights to nonresident owners. Under the present Section
114(C), these different rates, except for the 10% on lease or property rights payment to non-residents, were deleted,
and a uniform rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as opposed to creditable,
means full. Thus, it is provided in Section 114(C): “final value-added tax at the rate of five percent (5%).”
137
VOL. 469, SEPTEMBER 1, 2005 137
In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the concept of
final withholding tax on income was explained, to wit:
SECTION 2.57. Withholding of Tax at Source
(A) Final Withholding Tax.—Under the final withholding tax system the amount of income tax
withheld by the withholding agent is constituted as full and final payment of the income tax due from the
payee on the said income. The liability for payment of the tax rests primarily on the payor as a
withholding agent. Thus, in case of his failure to withhold the tax or in case of underwithholding, the
deficiency tax shall be collected from the payor/withholding agent. . . .
(B) Creditable Withholding Tax.—Under the creditable withholding tax system, taxes withheld on
certain income payments are intended to equal or at least approximate the tax due of the payee on said
income. . . . Taxes withheld on income payments covered by the expanded withholding tax (referred to in
Sec. 2.57.2 of these regulations) and compensation income (referred to in Sec. 2.78 also of these
regulations) are creditable in nature.
As applied to value-added tax, this means that taxable transactions with the government are subject to a 5% rate,
which constitutes as full payment of the tax payable on the transaction. This represents the net VAT payable of the
seller. The other 5% effectively accounts for the standard input VAT (deemed input VAT), in lieu of the actual input
VAT directly or attributable to the taxable transaction. 79
The Court need not explore the rationale behind the provision. It is clear that Congress intended to treat
differently taxable transactions with the government. This is supported by the fact that under the old provision, the
80
5% tax withheld
_______________
Revenue Regulations No. 14-2005, 4.114-2(a).

79
Commissioner of Internal Revenue vs. Philipine American Accident Insurance Company, Inc., G.R. No. 141658,
80
March 18, 2005, 453 SCRA 668.

138
8 ANNOTATED
by the government remains creditable against the tax liability of the seller or contractor, to wit:
SEC. 114. Return and Payment of Value-added Tax.—
(C) Withholding of Creditable Value-added Tax.—The Government or any of its political
subdivisions, instrumentalities or agencies, including government-owned or controlled corporations
(GOCCs) shall, before making payment on account of each purchase of goods from sellers and services
rendered by contractors which are subject to the value-added tax imposed in Sections 106 and 108 of this
Code, deduct and withhold the value-added tax due at the rate of three percent (3%) of the gross payment
for the purchase of goods and six percent (6%) on gross receipts for services rendered by contractors on
every sale or installment payment which shall be creditable against the value-added tax liability of the
seller or contractor: Provided, however, That in the case of government public works contractors, the
withholding rate shall be eight and one-half percent (8.5%): Provided, further, That the payment for lease
or use of properties or property rights to nonresident owners shall be subject to ten percent (10%)
withholding tax at the time of payment. For this purpose, the payor or person in control of the payment
shall be considered as the withholding agent.
The valued-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits Congress’s intention to treat
transactions with the government differently. Since it has not been shown that the class subject to the 5% final
withholding tax has been unreasonably narrowed, there is no reason to invalidate the provision. Petitioners, as
petroleum dealers, are not the only ones subjected to the 5% final withholding tax. It applies to all those who deal
with the government.
Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue Regulations No.
14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the BIR, provides that should the actual
input tax exceed 5% of gross payments, the excess may form part of
139
VOL. 469, SEPTEMBER 1, 2005 139
the cost. Equally, should the actual input tax be less than 5%, the difference is treated as income.81
Petitioners also argue that by imposing a limitation on the creditable input tax, the government gets to tax a
profit or value-added even if there is no profit or value-added.
Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will not engage in a
legal joust where premises are what ifs, arguments, theoretical and facts, uncertain. Any disquisition by the Court on
this point will only be, as Shakespeare describes life in Macbeth, “full of sound and fury, signifying nothing.”
82
What’s more, petitioners’ contention assumes the proposition that there is no profit or value-added. It need not
take an astute businessman to know that it is a matter of exception that a business will sell goods or services without
profit or value-added. It cannot be overstressed that a business is created precisely for profit.
The equal protection clause under the Constitution means that “no person or class of persons shall be deprived of
the same protection of laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.” 83
The power of the State to make reasonable and natural classifications for the purposes of taxation has long been
established. Whether it relates to the subject of taxation, the kind of property, the rates to be levied, or the amounts
to be raised, the methods of assessment, valuation and collection, the State’s power is entitled to presumption of
validity. As a rule, the judiciary will not interfere with such power absent a
_______________
Revenue Regulations No. 14-2005, Sec. 4. 114-2.

81
Act V, Scene V.
82
Philippine Rural Electric Cooperatives Association, Inc. vs. Department of Interior and Local Government, G.R.
83
No. 143076, June 10, 2003, 403 SCRA 558, 565.

140
0 ANNOTATED
clear showing of unreasonableness, discrimination, or arbitrariness. 84
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input tax, or
invests in capital equipment, or has several transactions with the government, is not based on real and substantial
differences to meet a valid classification.
The argument is pedantic, if not outright baseless. The law does not make any classification in the subject of
taxation, the kind of property, the rates to be levied or the amounts to be raised, the methods of assessment,
valuation and collection. Petitioners’ alleged distinctions are based on variables that bear different consequences.
While the implementation of the law may yield varying end results depending on one’s profit margin and value-
added, the Court cannot go beyond what the legislature has laid down and interfere with the affairs of business.
The equal protection clause does not require the universal application of the laws on all persons or things
without distinction. This might in fact sometimes result in unequal protection. What the clause requires is equality
among equals as determined according to a valid classification. By classification is meant the grouping of persons or
things similar to each other in certain particulars and different from all others in these same particulars. 85
Petitioners brought to the Court’s attention the introduction of Senate Bill No. 2038 by Sens. S.R. Osmeña III
and Ma. Ana Consuelo A.S. Madrigal on June 6, 2005, and House Bill No. 4493 by Rep. Eric D. Singson. The
proposed legislation seeks to amend the 70% limitation by increasing the same to 90%. This, according to
petitioners, supports their stance that the 70% limitation is arbitrary and confiscatory. On this
_______________
Aban, Benjamin, Law of Basic Taxation in the Philippines (First Edition 1994).

84
Philippine Judges Association case, supra., note 29.

85
141
VOL. 469, SEPTEMBER 1, 2005 141
score, suffice it to say that these are still proposed legislations. Until Congress amends the law, and absent any
unequivocal basis for its unconstitutionality, the 70% limitation stays.
B. Uniformity and Equitability of Taxation
Article VI, Section 28(1) of the Constitution reads:

The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of
taxation.
Uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the
same rate. Different articles may be taxed at different amounts provided that the rate is uniform on the same class
everywhere with all people at all times. 86
In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all goods and
services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108, respectively, of the NIRC,
provide for a rate of 10% (or 12%) on sale of goods and properties, importation of goods, and sale of services and
use or lease of properties. These same sections also provide for a 0% rate on certain sales and transaction.
Neither does the law make any distinction as to the type of industry or trade that will bear the 70% limitation on
the creditable input tax, 5-year amortization of input tax paid on purchase of capital goods or the 5% final
withholding tax by the government. It must be stressed that the rule of uniform taxation does not deprive Congress
of the power to classify subjects of taxation, and only demands uniformity within the particular class. 87
_______________
Commissioner of Internal Revenue vs. Court of Appeals, G.R. No. 119761, August 29, 1996, 261 SCRA 236, 249.
86
Kee vs. Court of Tax Appeals, No. L-18080, April 22, 1963, 117 Phil. 682, 688; 7 SCRA 670, 676.
87
142
2 ANNOTATED
R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of 0% or 10% (or 12%)
does not apply to sales of goods or services with gross annual sales or receipts not exceeding P1,500,000.00. Also,
88
basic marine and agricultural food products in their original state are still not subject to the tax, thus ensuring that
89
prices at the grassroots level will remain accessible. As was stated in Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. vs. Tan: 90
“The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-
sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of farm
and marine products, so that the costs of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within the reach of the general public.”
It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and unduly favors those
with high profit margins. Congress was not oblivious to this. Thus, to equalize the weighty burden the law entails,
the law, under Section 116, imposed a 3% percentage tax on VAT-exempt persons under Section 109(v), i.e.,
transactions with gross annual sales and/or receipts not exceeding P1.5 Million. This acts as a equalizer because in
effect, bigger businesses that qualify for VAT coverage and VAT-exempt taxpayers stand on equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the tax on those
previously exempt. Excise taxes on petroleum products and natural
91
_______________
88
Section 7, R.A. No. 9337.
89
Ibid.
90
No. L-81311, June 30, 1988, 163 SCRA 371, 383.
91
Section 17, R.A. No. 9337, amending Section 148, NIRC.
143
VOL. 469, SEPTEMBER 1, 2005 143
gas were reduced. Percentage tax on domestic carriers was removed. Power producers are now exempt from
92 93
paying franchise tax. 94
Aside from these, Congress also increased the income tax rates of corporations, in order to distribute the burden
of taxation. Domestic, foreign, and non-resident corporations are now subject to a 35% income tax rate, from a
previous 32%. Intercorporate dividends of non-resident foreign corporations are still subject to 15% final
95
withholding tax but the tax credit allowed on the corporation’s domicile was increased to 20%. The Philippine
96
Amusement and Gaming Corporation (PAGCOR) is not exempt from income taxes anymore. Even the sale by an
97
artist of his works or services performed for the production of such works was not spared.
All these were designed to ease, as well as spread out, the burden of taxation, which would otherwise rest largely
on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is equitable.
C. Progressivity of Taxation
Lastly, petitioners contend that the limitation on the creditable input tax is anything but regressive. It is the smaller
business with higher input tax-output tax ratio that will suffer the consequences.
Progressive taxation is built on the principle of the tax-payer’s ability to pay. This principle was also lifted from
Adam Smith’s Canons of Taxation, and it states:
_______________
92
Section 18, amending Section 151, NIRC.
93
94
95
Sections 1 and 2, amending Sections 27 and 28, NIRC.
96
97
Section 1, amending Section 27(C), NIRC.
144
4 ANNOTATED
I. The subjects of every state ought to contribute towards the support of the government, as nearly as
possible, in proportion to their respective abilities; that is, in proportion to the revenue which they
respectively enjoy under the protection of the state.
Taxation is progressive when its rate goes up depending on the resources of the person affected. 98
The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle of progressive
taxation has no relation with the VAT system inasmuch as the VAT paid by the consumer or business for every
goods bought or services enjoyed is the same regardless of income. In other words, the VAT paid eats the same
portion of an income, whether big or small. The disparity lies in the income earned by a person or profit margin
marked by a business, such that the higher the income or profit margin, the smaller the portion of the income or
profit that is eaten by VAT. A converso, the lower the income or profit margin, the bigger the part that the VAT eats
away. At the end of the day, it is really the lower income group or businesses with low-profit margins that is always
hardest hit.
Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the VAT. What it
simply provides is that Congress shall “evolve a progressive system of taxation.” The Court stated in the Tolentino
case, thus:
“The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall ‘evolve a progressive system of taxa-tion.’ The
constitutional provision has been interpreted to mean simply that ‘direct taxes are . . . to be preferred
[and] as much as possible, indirect taxes should be minimized.’ (E. FERNANDO, THE CONSTITUTION
OF THE PHILIPPINES221 [Second ed. 1977]) Indeed, the mandate to Congress is not to prescribe, but to
evolve, a progressive tax system. Otherwise, sales taxes, which perhaps are
_______________
Reyes vs. Almanzor, G.R. Nos. 49839-46, April 26, 1991, 196 SCRA 322, 327.
98
145
VOL. 469, SEPTEMBER 1, 2005 145
the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII, §17 (1)
of the 1973 Constitution from which the present Art. VI, §28 (1) was taken. Sales taxes are also
regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers’ ability to pay. In the case of
the VAT, the law minimizes the regressive effects of this imposition by providing for zero rating of
certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while granting exemptions to
other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC)” 99
CONCLUSION
It has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a first-aid measure to
resuscitate an economy in distress. The Court is neither blind nor is it turning a deaf ear on the plight of the masses.
But it does not have the panacea for the malady that the law seeks to remedy. As in other cases, the Court cannot
strike down a law as unconstitutional simply because of its yokes.
Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the judiciary
should stand ready to afford relief. There are undoubtedly many wrongs the judicature may not correct,
for instance, those involving political questions. . . .
Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for
all political or social ills; We should not forget that the Constitution has judiciously allocated the powers
of government to three distinct and separate compartments; and that judicial interpretation has tended to
the preservation of the independence of the three, and a zealous regard of the prerogatives of each,
knowing full well that one is not the guardian
_______________
Tolentino vs. Secretary of Finance, G.R. No. 115455, October 30, 1995, 249 SCRA 628, 659.
99
146
6 ANNOTATED
of the others and that, for official wrong-doing, each may be brought to account, either by impeachment,
trial or by the ballot box. 100
The words of the Court in Vera vs. Avelino holds true then, as it still holds true now. All things considered, there is
101
no raison d'être for the unconstitutionality of R.A. No. 9337.

WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos. 168056, 168207,
168461, 168463, and 168730, are hereby DISMISSED. There being no constitutional impediment to the full
enforcement and implementation of R.A. No. 9337, the temporary restraining order issued by the Court on July 1,
2005 is LIFTED upon finality of herein decision.
SO ORDERED.
January 22, 2014. G.R. No. 170701.*
RALPH P. TUA, petitioner, vs. HON. CESAR A. MANGROBANG, Presiding Judge, Branch 22, Regional Trial
Court, Imus, Cavite; and ROSSANA HONRADO-TUA, respondents.

Violence Against Women and their Children Act of 2004 (R.A. No. 9262); Protection Orders; Words
and Phrases; A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate
the opportunity and ability to regain control of their life.—In Garcia v. Drilon, 699 SCRA 352 (2013)
wherein petitioner therein argued that Section 15 of RA 9262 is a violation of the due process clause of
the Constitution, we struck down the challenge and held: A protection order is an order issued to prevent
further acts of violence against women and their children, their family or household members, and to
grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize
any disruption in their daily life and facilitate the opportunity and ability to regain control of their life.
The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
_______________
* THIRD DIVISION.
429afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support.
Constitutional Law; Congress; The primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law is primarily the function of the legislature.—Section 2 of
Article VIII of the 1987 Constitution provides that “the Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of
its jurisdiction over cases enumerated in Section 5 hereof.” Hence, the primary judge of the necessity,
adequacy, wisdom, reasonableness and expediency of any law is primarily the function of the legislature.
The act of Congress entrusting us with the issuance of protection orders is in pursuance of our authority to
settle justiciable controversies or disputes involving rights that are enforceable and demandable before the
courts of justice or the redress of wrongs for violations of such rights.
Violence Against Women and their Children Act of 2004 (R.A. No. 9262); Protection Orders;
Barangay Protection Order (BPO); The issuance of a BPO by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain
public order in the barangay.”—As to the issuance of protection order by the Punong Barangay, Section
14 pertinently provides: SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.—
Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering
the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong
Barangay who receives applications for a BPO shall issue the protection order
430to the applicant on the date of filing after ex parte determination of the basis of the application.
If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted
upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must
be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable
at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy
of the same on the respondent, or direct any barangay official to effect its personal service. The parties
may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay. Hence,
the issuance of a BPO by the Punong Barangayor, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her
child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local Government Code
to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”
Same; Same; Temporary Protection Orders; The court is authorized to issue a Temporary
Protection Order (TPO) on the date of the filing of the application after ex parte determination that there
is basis for the issuance thereof.—Clearly, the court is authorized to issue a Temporary Protection Orders
(TPO) on the date of the filing of the application after ex parte determination that there is basis for the
issuance thereof. Ex parte means that the respondent need not be notified or be present in the hearing for
the issuance of the TPO. Thus, it is within the court’s discretion, based on the petition and the affidavit
attached thereto, to determine that the violent acts against women and their children for the issuance of a
TPO have been committed.
Grave Abuse of Discretion; It is settled doctrine that there is grave abuse of discretion when there is
a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where
the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation
431of law.—It is settled doctrine that there is grave abuse of discretion when there is a capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. We find that the CA did not err when it found no grave
abuse of discretion committed by the RTC in the issuance of the TPO. The factual matters herein raised
by petitioner should be presented during the hearing on the merits on the issuance of the Permanent
Protection Order (PPO).
PETITION for review on certiorari of a decision of the Court of Appeals.
Tugonon & Associates Law Office for petitioner.
Rommel N. Cariño for respondents.

PERALTA,J.:
Before us is a petition for review on certiorari which seeks to annul the Decision 1 dated October 28, 2005 of the
Court of Appeals (CA) issued in CA-G.R. SP No. 89939.
On May 20, 2005, respondent Rossana Honrado-Tua (respondent) filed with the Regional Trial Court (RTC) of
Imus, Cavite a Verified Petition2 for herself and in behalf of her minor children, Joshua Raphael, Jesse Ruth Lois,
and Jezreel Abigail, for the issuance of a protection order, pursuant to Republic Act (RA) 9262 or the Anti-Violence
Against Women and their Children Act of 2004, against her husband, peti-
_______________
1 Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Noel G. Tijam and Arturo G. Tayag,
concurring; Rollo, pp. 54-58.
2 Rollo, pp. 129-132.
432tioner Ralph Tua. The case was docketed as Civil Case No. 0464-05 and raffled-off to Branch 22. Respondent
claimed that she and her children had suffered from petitioner’s abusive conduct; that petitioner had threatened to
cause her and the children physical harm for the purpose of controlling her actions or decisions; that she was
actually deprived of custody and access to her minor children; and, that she was threatened to be deprived of her and
her children’s financial support.
Respondent and petitioner were married on January 10, 1998 in Makati City. They have three children, namely,
Joshua Raphael born on February 9, 1999, Jesse Ruth Lois, born on June 27, 2000, and Jezreel Abigail, born on
December 25, 2001. In her Affidavit 3 attached to the petition, respondent claimed, among others, that: there was a
time when petitioner went to her room and cocked his gun and pointed the barrel of his gun to his head as he wanted
to convince her not to proceed with the legal separation case she filed; she hid her fears although she was scared;
there was also an instance when petitioner fed her children with the fried chicken that her youngest daughter had
chewed and spat out; in order to stop his child from crying, petitioner would threaten him with a belt; when she told
petitioner that she felt unsafe and insecure with the latter’s presence and asked him to stop coming to the house as
often as he wanted or she would apply for a protection order, petitioner got furious and threatened her of
withholding his financial support and even held her by the nape and pushed her to lie flat on the bed; and, on May 4,
2005, while she was at work, petitioner with companions went to her new home and forcibly took the children and
refused to give them back to her.
On May 23, 2005, the RTC issued a Temporary Protection Order (TPO),4 which we quote in full:
_______________
3 Id., at pp. 133-136.
4 Id., at pp. 60-61; per Judge Cesar A. Mangrobang.
433
Pursuant to the provisions of R.A. 9262, otherwise known as the “Anti-Violence Against
Women and their Children Act of 2004, a Temporary Protection Order (TPO) effective for thirty
(30) days from date of receipt is hereby issued against respondent Ralph P. Tua.
For the purpose of the implementation of the Temporary Protection Order, the respondent
(herein petitioner Ralph) is hereby ordered to:
Enjoin from committing and threatening to commit personally or through another, physical,
verbal and emotional harm or abuse against the herein petitioner (respondent) and other family
and household members; 1.
Restrain from harassing, annoying, texting, telephoning, contacting or otherwise
communicating with the petitioner (respondent) whether directly or indirectly or engaged in
any psychological form of harassment; 2.
Stay away from the petitioner (respondent) and other family and household members at a
distance of 100 meters radius from the place of residence of the plaintiff and likewise to stay
away from the residence, school, place of employment and other places frequented by the
herein petitioner (respondent), and other family and household members. 3.
Give and deliver the three (3) minor children of the petitioner (respondent) to the [latter] who
shall have their temporary custody pending the determination of whether or not a permanent
protection order shall issue. 4.

VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.
The Sheriff of this Court, the PNP Imus, Cavite, or any Officers of the Law are hereby
commanded to effect
434this Order immediately and to use necessary force and measures under the law to implement this
Order.
Let the hearing for Permanent Protection Order be set on June 9, 2005 at 2:00 o’clock in the
afternoon.
SO ORDERED. 5

In his Comment6 to respondent’s Petition with Urgent Motion to Lift TPO, petitioner denied respondent’s
allegations and alleged, among others, that he had been maintaining a separate abode from petitioner since
November 2004; that it was respondent who verbally abused and threatened him whenever their children’s stay with
him was extended; that respondent had been staying with a certain Rebendor Zuñiga despite the impropriety and
moral implications of such set-up; that despite their written agreement that their minor children should stay in their
conjugal home, the latter violated the same when she surreptitiously moved out of their conjugal dwelling with their
minor children and stayed with said Zuñiga; and, that respondent is mentally, psychologically, spiritually and
morally unfit to keep the children in her custody. Petitioner contended that the issuance of the TPO on May 23, 2005
is unconstitutional for being violative of the due process clause of the Constitution.
Without awaiting for the resolution of his Comment on the petition and motion to lift TPO, petitioner filed with
the CA a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order and preliminary injunction and hold departure order assailing the May 23, 2005 TPO issued by the
RTC.
On June 9, 2005, the CA, in order not to render the petition moot and to avoid grave and irreparable injury,
issued a temporary restraining order to temporarily enjoin the parties and
_______________
5 Id. (Emphasis in the original)
6 Id., at pp. 62-66.
435their agents from enforcing the assailed May 23, 2005 TPO issued in Civil Case No. 0464-05.
7
Petitioner later filed an Urgent Motion for Issuance of a Writ of Preliminary Injunction with
Manifestation,8praying that the enforcement of all orders, decision to be issued by the RTC and all the proceedings
therein be restrained. A hearing9 was, subsequently, conducted on the motion.
On October 28, 2005, the CA issued its assailed decision, the decretal portion of which reads:
WHEREFORE, based on the foregoing premises, the instant petition is hereby DENIED for
lack of merit. Accordingly, the assailed Temporary Protection Order dated May 23,
2002 (sic) issued by the Regional Trial Court of Imus, Cavite, Branch 22 in Civil Case No. 0464-05
is UPHELD. 10
In so ruling, the CA found that the petition filed by respondent under RA 9262 is still pending before the RTC;
thus, the factual matters raised therein could not be passed upon in the petition for certiorari filed with it. The CA
noted that during the pendency of the herein proceedings, petitioner filed an urgent motion to quash warrant issued
by the RTC and which matter could not also be a subject of this petition which assails the TPO dated May 23, 2005
and that the motion to quash should have been filed with the RTC.
The CA found that the TPO dated May 23, 2005 was validly issued by the RTC and found no grave abuse of
discretion
7 Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Hakim S. Abdulhawid and Lucenito N.
Tagle, concurring; CA Rollo, pp. 86-87.
8 Id., at pp. 93-94.
9 Id. at pp. 144-177; In attendance were Associate Justices Elvi John S. Asuncion, Hakim S. Abdulhawid and Estela
M. Perlas-Bernabe (now a member of the Supreme Court).
10 Rollo, p. 58. (Emphasis in the original)
436in the issuance thereof as the same were in complete accord with the provision of RA 9262.
As to petitioner’s argument that there was no basis for the issuance of the TPO, considering that the provision
authorizing such issuance is unconstitutional, the CA ruled that since the matter raised herein was the RTC’s alleged
grave abuse of discretion in issuing the TPO, such matter could be resolved without having to rule on the
constitutionality of RA 9262 and its provisions. And that the requisites that the constitutionality of the law in
question be the very lis mota of the case was absent.
Dissatisfied, petitioner files the instant petition raising the following issues:
I
THE HONORABLE COURT OF APPEALS WITH DUE RESPECT SERIOUSLY ERRED IN
HOLDING AND FINDING IN A MANNER CONTRARY TO ESTABLISHED RULES AND
JURISPRUDENCE THAT PUBLIC RESPONDENT COMMITTED NO GRAVE ABUSE OF
DISCRETION WHEN THE LATTER ISSUED THE TEMPORARY PROTECTIVE ORDER
(TPO) DATED 23 MAY 2005 WITHOUT OBSERVING DUE PROCESS OF LAW AND
CONSIDERATIONS OF JUSTICE AND BASIC HUMAN RIGHTS.
II
THE HONORABLE COURT OF APPEALS IN REFUSING TO RULE ON THE
CONSTITUTIONALITY OF THE PROVISIONS OF RA 9262 HAS DECIDED THE CASE IN A
MANNER NOT IN ACCORD WITH ESTABLISHED LAWS AND JURISPRUDENCE
CONSIDERING THAT CONTRARY TO ITS FINDINGS THE CONSTITUTIONALITY OF THE
SAID LAW IS THE LIS MOTA OF THE CASE. 11
_______________
11 Id., at p. 25.
437
Petitioner claims that contrary to the stance of the CA in not deciding the issue of the constitutionality of RA
9262, the issue presented is the very lis mota in the instant case.
The issue of constitutionality of RA 9262 was raised by petitioner in his Comment to respondent’s Petition with
Urgent Motion to Lift TPO dated May 23, 2005 filed with the RTC. However, without awaiting for the resolution of
the same, petitioner filed a petition for certiorari with the CA assailing the TPO issued for violating the due process
clause of the Constitution. Contrary to the CA’s finding that the matter raised in the petition filed with it was the
RTC’s alleged grave abuse of discretion in issuing the TPO which could be resolved without having to rule on the
constitutionality of RA 9262 and its provisions, we find that since petitioner is assailing the validity of RA 9262
wherein respondent’s right to a protection order is based upon, the constitutionality of the said law must first be
decided upon. After all, the alleged unconstitutionality of RA 9262 is, for all intents and purposes, a valid cause for
the non-issuance of a protection order. 12 Notwithstanding, however, we still find no merit to declare RA 9262
unconstitutional.
Petitioner particularly directs his constitutional attack on Section 15 of RA 9262 contending that had there been
no ex parte issuance of the TPO, he would have been afforded due process of law and had properly presented his
side on the matter; that the questioned provision simply encourages arbitrary enforcement repulsive to basic
constitutional rights which affects his life, liberty and property.
We are not impressed.
Section 15 of RA 9262 provides:
15. SECTIONTemporary Protection Orders.—Temporary Protection Orders (TPOs) refers to
the protec-
______________
12 Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 401.
438tion order issued by the court on the date of filing of the application after ex parte determination
that such order should be issued. A court may grant in a TPO any, some or all of the reliefs
mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing
on the issuance of a [Permanent Protection Order] PPO prior to or on the date of the expiration of
the TPO. The court shall order the immediate personal service of the TPO on the respondent by the
court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO
shall include notice of the date of the hearing on the merits of the issuance of a PPO.
In Garcia v. Drilon,13 wherein petitioner therein argued that Section 15 of RA 9262 is a violation of the due
process clause of the Constitution, we struck down the challenge and held:
A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its purpose is
to safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.
The scope of reliefs in protection orders is broadened to ensure that the victim or offended party
is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their financial support.
_______________
13 Supra.
439
The rules require that petitions for protection order be in writing, signed and verified by the
petitioner thereby undertaking full responsibility, criminal or civil, for every allegation therein.
Since “time is of the essence in cases of VAWC if further violence is to be prevented,” the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.
There need not be any fear that the judge may have no rational basis to issue an ex parte order.
The victim is required not only to verify the allegations in the petition, but also to attach her
witnesses’ affidavits to the petition.
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and hearing
because the time in which the hearing will take could be enough to enable the defendant to abscond
or dispose of his property, in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a constitutional commonplace that the
ordinary requirements of procedural due process must yield to the necessities of protecting vital
public interests, among which is protection of women and children from violence and threats to
their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5)
days from service. Moreover, the court shall order that notice, copies of the petition and TPO be
served immediately on the respondent by the court sheriffs. The TPOs are initially effective for
thirty (30) days from service on the respondent.
440
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within
five (5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.
The opposition to the petition which the respondent himself shall verify, must be accompanied
by the affidavits of witnesses and shall show cause why a temporary or permanent protection order
should not be issued.
It is clear from the foregoing rules that the respondent of a petition for protection order should
be apprised of the charges imputed to him and afforded an opportunity to present his side. x x x. The
essence of due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one’s defense. “To be heard” does not only mean verbal
arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of procedural due process. 14

Petitioner also assails that there is an invalid delegation of legislative power to the court and to barangay
officials to issue protection orders.
Section 2 of Article VIII of the 1987 Constitution provides that “the Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5 hereof.” Hence, the primary judge of the necessity, adequacy,
wisdom, reasonableness and expediency of any law is primarily the function of the legislature. 15 The act of Congress
entrusting us with the issuance of protec-
_______________
14 Id., at pp. 426-429. (Emphasis in the original; citations omitted)
15 NPC Employees Consolidated Union v. National Power Corporation, 550 Phil. 199, 208-209; 522 SCRA 12, 22
(2007).
441tion orders is in pursuance of our authority to settle justiciable controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. 16
As to the issuance of protection order by the Punong Barangay, Section 14 pertinently provides:
14. SEC.Barangay Protection Orders (BPOs); Who May Issue and How.—
Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong
Barangayordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this
Act. A Punong Barangaywho receives applications for a BPO shall issue the protection order to the
applicant on the date of filing after ex parte determination of the basis of the application. If
the Punong Barangay is unavailable to act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the
order must be accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for fifteen
(15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay
Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay
official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before
the Punong Barangay.

Hence, the issuance of a BPO by the Punong Barangayor, in his unavailability, by any available Barangay
Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2)
threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature,
_______________
16 Philippine Constitution, Art. VIII, Sec. 1.
442in pursuance of his duty under the Local Government Code to “enforce all laws and ordinances,” and to
“maintain public order in the barangay.”17
Petitioner assails that the CA erred in finding that the RTC did not commit grave abuse of discretion in issuing
the TPO dated May 23, 2005 as the petition was bereft of any indication of grounds for the issuance of the same.
Petitioner claims that while the issuance of the TPO is ex parte, there must be a judicial determination of the basis
thereof. He contends that the allegations in respondent’s affidavit attached to the petition, and without admitting the
same to be true, are nothing more than normal or usual quarrels between a husband and wife which are not grave or
imminent enough to merit the issuance of a TPO.
We are not persuaded.
We quote again Section 15 of RA 9262 for ready reference, thus:
15. SECTIONTemporary Protection Orders.—Temporary Protection Orders (TPOs) refers to
the protection order issued by the court on the date of filing of the application after ex parte
determination that such order should be issued. A court may grant in a TPO any, some or all of the
reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a
hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall
order the immediate personal service of the TPO on the respondent by the court sheriff who may
obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the
date of the hearing on the merits of the issuance of a PPO.
Clearly, the court is authorized to issue a TPO on the date of the filing of the application after ex
partedetermination
_______________
17 Garcia v. Drilon, supra note 12, at p. 432.
443that there is basis for the issuance thereof. Ex parte means that the respondent need not be notified or be present
in the hearing for the issuance of the TPO. Thus, it is within the court’s discretion, based on the petition and the
affidavit attached thereto, to determine that the violent acts against women and their children for the issuance of a
TPO have been committed.
And Section 5 of the same law provides:
5. SECTION Acts of Violence Against Women and Their Children.—The crime of violence
against women and their children is committed through any of the following acts:
Causing physical harm to the woman or her child; (a)
Threatening to cause the woman or her child physical harm; (b)
Attempting to cause the woman or her child physical harm; (c)
Placing the woman or her child in fear of imminent physical harm; (d)
Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her
child has the right to engage in, or attempting to restrict or restricting the woman’s or her
child’s freedom of movement or conduct by force or threat of force, physical or other harm or
threat of physical or other harm, or intimidation directed against the woman or child. This
shall include, but not limited to, the following acts committed with the purpose or effect of
controlling or restricting the woman’s or her child’s movement or conduct: (e)
444
Threatening to deprive or actually depriving the woman or her child of custody to her/his
family; (1)
Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman’s children insufficient
financial support; (2)
(3Depriving or threatening to deprive the woman or her child of a legal right; )
Preventing the woman in engaging in any legitimate profession, occupation, business or
activity or controlling the victim’s own money or properties, or solely controlling the
conjugal or common money, or properties; (4)
Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her
actions or decisions; (f)
(g) Causing or attempting to cause the woman or her child to engage in any sexual activity
which does not constitute rape, by force or threat of force, physical harm, or through
intimidation directed against the woman or her child or her/his immediate family;
Engaging in purposeful, knowing, or reckless conduct, personally or through another, that
alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts: (h)
Stalking or following the woman or her child in public or private places; (1)
445
Peering in the window or lingering outside the residence of the woman or her child; (2)
Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will; (3)
Destroying the property and personal belongings or inflicting harm to animals or pets of
the woman or her child; and (4)
Engaging in any form of harassment or violence; (5)
Causing mental or emotional anguish, public ridicule or humiliation to the woman or her
child, including, but not limited to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor children of access to the woman’s child/children. (i)

In this case, the alleged acts of petitioner among others, i.e., he cocked the gun and pointed the same to his head
in order to convince respondent not to proceed with the legal separation case; feeding his other children with the
food which another child spat out; and threatening the crying child with a belt to stop him from crying which was
repeatedly done; and holding respondent by her nape when he got furious that she was asking him not to come often
to their conjugal home and hold office thereat after their agreed separation and threatening her of withholding half of
the financial support for the kids, while not conclusive, are enough bases for the issuance of a TPO. Petitioner’s
actions would fall under the enumeration of Section 5, more particularly, paragraphs a, d, e (2), f, h, and i.
It is settled doctrine that there is grave abuse of discretion when there is a capricious and whimsical exercise of
judg-
446ment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion
of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 18 We find
that the CA did not err when it found no grave abuse of discretion committed by the RTC in the issuance of the
TPO.
The factual matters herein raised by petitioner should be presented during the hearing on the merits on the
issuance of the Permanent Protection Order.
WHEREFORE, the petition is DENIED. The Decision dated October 28, 2005 of the Court of Appeals issued
in CA-G.R. SP No. 89939, upholding the Regional Trial Court’s issuance of the Temporary Protection Order dated
May 23, 2005, is AFFIRMED. The Regional Trial Court of Imus, Cavite is hereby ORDERED to resolve with
dispatch respondent’s Petition for a Permanent Protection Order.
SO ORDERED.
Velasco, Jr. (Chairperson), Abad, Mendoza and Leonen, JJ., concur.
Petition denied, judgment affirmed.
Notes.—It bears stressing that protection orders are granted ex parte so as to protect women and their children
from acts of violence. To issue an injunction against such orders will defeat the very purpose of the law against
Violence Against Women and Children. (Garcia vs. Drilon,699 SCRA 352 [2013])
November 3, 2008. G.R. No. 157870.*

SOCIAL JUSTICE SOCIETY (SJS), petitioner, vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY (PDEA), respondents.
November 3, 2008.* G.R. No. 158633.

ATTY. MANUEL J. LASERNA, JR., petitioner, vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY, respondents.
November 3, 2008.* G.R. No. 161658.

AQUILINO Q. PIMENTEL, JR., petitioner, vs. COMMISSION ON ELECTIONS, respondent.
_______________
* EN BANC.
411
VOL. 570, NOVEMBER 3, 2008 411
Social Justice Society (SJS) vs. Dangerous Drugs
Board
Remedial Law; Actions; Power of Judicial Review; Parties; Party-in-Interest; The power of judicial
review can only be exercised in connection with a bona fide controversy which involves the statute sought
to be reviewed; Even with the presence of an actual case or controversy, the court may refuse to exercise
judicial review unless the constitutional question is brought before it by a party having the requisite
standing to challenge it.—It is basic that the power of judicial review can only be exercised in connection
with a bona fide controversy which involves the statute sought to be reviewed. But even with the presence
of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is
likely to be redressed by a favorable action.
Same; Same; Same; Same; The rule on standing is a matter of procedure; hence, it can be relaxed
for non-traditional plaintiffs, like ordinary citizens, taxpayers and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overarching significance to society,
or of paramount public interest.—The rule on standing, however, is a matter of procedure; hence, it can
be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental importance, of overarching significance
to society, or of paramount public interest. There is no doubt that Pimentel, as senator of the Philippines
and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial
interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and
Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.
Constitutional Law; Statutes; It is basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect.—Pimentel’s contention is well-taken.
Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that
if a law or an adminis-412

12 ANNOTATED
Social Justice Society (SJS) vs. Dangerous
Drugs Board
trative rule violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution. In the discharge of their defined functions, the three departments of government have no
choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be
observed.
Same; Same; Definition of the limits on legislative power in the abstract.—Congress’ inherent
legislative powers, broad as they may be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the
following wise: Someone has said that the powers of the legislative department of the Government, like
the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are limited
and confined within the four walls of the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of
legislative authority against which the waves of legislative enactment may dash, but over which it cannot
leap.
Same; Same; The right of a citizen in the democratic process of election should not be defeated by
unwarranted impositions of requirement not otherwise specified in the Constitution.—In the same vein,
the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules
and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in
addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet
such additional qualification, the COMELEC, to be sure, is also without such power. The right of a
citizen in the democratic process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.
Same; Same; Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC
resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the
Constitution; Whether or not the drug-free bar set up under the challenged provision is to be hurdled
before or after election is really of no moment, as getting elected would be of little value if one cannot as-
413
VOL. 570, NOVEMBER 3, 2008 4

13
Drugs Board
sume office for non-compliance with the drug-testing requirement—Sec. 36(g) of RA 9165, as
sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-
condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua
nonto be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes
the chain with the proviso that “[n]o person elected to any public office shall enter upon the duties of his
office until he has undergone mandatory drug test.” Viewed, therefore, in its proper context, Sec. 36(g) of
RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987
Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set
up under the challenged provision is to be hurdled before or after election is really of no moment, as
getting elected would be of little value if one cannot assume office for non-compliance with the drug-
testing requirement.
Same; Same; Court is of the view and so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are constitutional.—Guided by Vernonia and Board
of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative
of educational institutions to require, as a condition for admission, compliance with reasonable school
rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
Same; Same; A random drug testing of students in secondary and tertiary schools is not only
acceptable but may even be necessary if the safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and protected.—The Court can take judicial
notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people,
particularly the youth and school children who usually end up as victims. Accordingly, and until a more
effective method is conceptualized and put in motion, a random drug testing of students in secondary and
tertiary schools is not only acceptable but may even be 414

14 ANNOTATED
Drugs Board
necessary if the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from Vernonia, “[d]eterring drug use by our
Nation’s schoolchildren is as important as enhancing efficient enforcement of the Nation’s laws against
the importation of drugs”; the necessity for the State to act is magnified by the fact that the effects of a
drug-infested school are visited not just upon the users, but upon the entire student body and faculty.
Needless to stress, the random testing scheme provided under the law argues against the idea that the
testing aims to incriminate unsuspecting individual students.
Same; Same; The mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers
and employees of public and private offices is justifiable, albeit not exactly for the same reason.—Just as
in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by
Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not
exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that
“subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted
intrusion of the individual right to privacy,” has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. Petitioner
Laserna’s lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration.
Same; Same; If RA 9165 passes the norm of reasonableness for private employees, the more reason
that it should pass the test for civil servants, who, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost responsibility and efficiency.—
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well-defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional. Like their counterparts in the private sector, government officials and employees also 415
VOL. 570, NOVEMBER 3, 2008 4

15
Drugs Board
labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws
on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165
passes the norm of reasonableness for private employees, the more reason that it should pass the test for
civil servants, who, by constitutional command, are required to be accountable at all times to the people
and to serve them with utmost responsibility and efficiency.
Same; Same; In the case of persons charged with a crime before the prosecutor’s office, a
mandatory drug testing can never be random or suspicionless; To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165.—We find the situation entirely different in the case of persons charged
before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug testing are “randomness” and
“suspicionless.” In the case of persons charged with a crime before the prosecutor’s office, a mandatory
drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither
are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled
out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before
the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug
testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution,
contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.
Same; Same; Sec. 36(f) and (g) of RA 9165 and COMELEC Resolution No. 6486 declared
unconstitutional.—WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and
declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to
PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of
RA416

16 ANNOTATED
Drugs Board
9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned
agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and Prohibition.
Gana & Manlangit Law Office for petitioner A. Pimentel, Jr.
Samson S. Alcantara, Rene B. Gorospe, Romeo R. Robiso and Ed Vincent S. Albano for petitioner.
VELASCO, JR.,J.:
In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and private offices, and
persons charged before the prosecutor’s office with certain offenses, among other personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
36. “SEC.Authorized Drug Testing.—Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing
methods, the screening test which will determine the positive result as well as the type of drug used and
the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected
to undergo drug testing:
x x x x
of secondary and tertiary schools.—Students of secondary and tertiary schools shall, pursuant to the
related rules (c)417
VOL. 570, NOVEMBER 3, 2008 417

Board
and regulations as contained in the school’s student handbook and with notice to the parents, undergo a
random drug testing x x x;
Officers and employees of public and private offices.—Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in
the company’s work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any
officer or employee found positive for use of dangerous drugs shall be dealt with administratively which
shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code
and pertinent provisions of the Civil Service Law; (d)
x x x x
All persons charged before the prosecutor’s office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug
test; (f)
All candidates for public office whether appointed or elected both in the national or local government
shall undergo a mandatory drug test. (g)
In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall
be subject to the provisions of Section 15 of this Act.”
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v.
Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the
rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10,
2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:
“WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
36. SEC.Authorized Drug Testing.—x x x
x x x x
All candidates for public office x x x both in the national or local government (g) shall undergo a
mandatory drug test.418

ANNOTATED
Board
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality
of candidates they are electing and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct
of mandatory drug testing to candidates for public office[:]
1. SECTIONCoverage.—All candidates for public office, both national and local, in the May
10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored and accredited by the Department of
Health.
x x x 3. SEC.
On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec
Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates.
The first list shall consist of those candidates who complied with the mandatory drug test while the
second list shall consist of those candidates who failed to comply x x x.
4. SEC.Preparation and publication of names of candidates.—Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those
candidates who complied with the mandatory drug test while the second list shall consist of those
candidates who failed to comply with said drug test. x x x
5. SEC.Effect of failure to undergo mandatory drug test and file drug test certificate.—No person
elected to any public office shall enter upon the duties of his office until he has undergone mandatory
drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein
required.” (Emphasis supplied.)
419
VOL. 570, NOVEMBER 3, 2008 419
Board
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10,
2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g)
of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they
impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution;
and (2) to enjoin the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:
No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of
the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of
the Philippines for not less than two years immediately preceding the day of the election.”
3. “SECTION
According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a
candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug
free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party,
seeks to prohibit the Dangerous Drugs Board (DDB) and the Philip-
_______________
1 Re-elected as senator in the 2004 elections.

420
ANNOTATED
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pine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on
the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative
power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For
another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an
employee deemed undesirable. And for a third, a person’s constitutional right against unreasonable searches is also
breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for
infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right
against self-incrimination, and for being contrary to the due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS
and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting
to a violation of the constitutional rights mentioned in their separate petitions.2
It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy
which in-
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2 Rollo (G.R. No. 158633), pp. 184-185.

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volves the statute sought to be reviewed. 3 But even with the presence of an actual case or controversy, the Court may
refuse to exercise judicial review unless the constitutional question is brought before it by a party having the
requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a favorable action. 5
The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs,
like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount public interest. 6 There is no doubt
that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite
standing since he has substantial interests in the subject matter of the petition, among other preliminary
considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to
the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:

_______________
3 Dumlao v. Commission on Elections, No. L-52245, January 22, 1980, 95 SCRA 392, 401.
4 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 939 (2003).
5 Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.
6 Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA 330,
349; De Guia v. Commission on Elections, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
422
ANNOTATED
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Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in
addition to those laid down by the Constitution? and (1)
Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs
violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or
do they constitute undue delegation of legislative power? (2)
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose
an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance
candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these
stated qualification requirements, candidates for senator need not possess any other qualification to run for senator
and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify
these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, 7 or alter
or enlarge the Constitution.
Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as,
unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance
is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be
valid if it con-
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7 Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.

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flicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no
choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed. 9
Congress’ inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following
wise:
“Someone has said that the powers of the legislative department of the Government, like the boundaries
of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under
delegated authority, the powers of each of the departments x x x are limited and confined within the four
walls of the constitution or the charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the shore of legislative authority against
which the waves of legislative enactment may dash, but over which it cannot leap.” 10
Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations
which circumscribe both the exercise of the power itself and the allowable subjects of legislation. 11 The substantive
constitutional limitations are chiefly found in the Bill of Rights 12 and other provisions, such as Sec. 3, Art. VI of the
Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose quali-
_______________
8 Cruz, Constitutional Law 4 (2000).

9 Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234.
10 50 Phil. 259, 309 (1927).
11 J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary 604 (1996).
12 Id.
424
ANNOTATED
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fications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power.
The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges
the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the
validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that “[n]o
person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug
test.” Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution
add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the
Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little value if one cannot assume office for non-
compliance with the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a
certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the
particular section
_______________
13 See concurring opinion in Go v. Commission on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753.
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of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the
obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since
the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can
only refer to and revolve around the election and the assumption of public office of the candidates. Any other
construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable,
for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running
in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it
hereby rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on
its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring
to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and
public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to
stamp out illegal drug and safeguard in the process “the well being of [the] citizenry, particularly the youth, from the
harmful effects of dangerous drugs.” This statutory purpose, per the policy-declaration portion of the law, can be
achieved via the pursuit by the state of “an intensive and unrelenting campaign against the trafficking and use of
dangerous drugs x x x through an integrated system of planning, implementation
426
ANNOTATED
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and enforcement of anti-drug abuse policies, programs and projects.” 14 The primary legislative intent is not criminal
prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated
as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo
rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
54. “Sec.Voluntary Submission of a Drug Dependent to Confinement, Treatment and
Rehabilitation.—A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the
Court which shall order that the applicant be examined for drug dependency. If the examination x x x
results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to
undergo treatment and rehabilitation in a Center designated by the Board x x x.
x x x x
55. Sec.Exemption from the Criminal Liability Under the Voluntary Submission Program.—A drug
dependent under the voluntary submission program, who is finally discharged from confinement, shall be
exempt from the criminal liability under Section 15 of this Act subject to the following conditions:
x x x x”
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive
effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more
inclined to drug dependency. Their recovery is also at a depressingly low rate.15
_______________
14 RA 9165, Sec. 2.

15 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.
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The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure 16 under Sec. 2, Art. III17 of the Constitution. But while the right to
privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or
intrusion through the medium of mandatory random drug testing among students and employees is, in this
jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing
among school children, we turn to the teachings ofVernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of
Education),18 both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental
search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective
institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they
required random urinalysis drug testing for the school’s athletes. James Acton, a high school student, was denied
participation
_______________
16 Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L-20387, January
31, 1968, 22 SCRA 424, 444-445.
17The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or
things to be seized. 2. Sec.
18 536 U.S. 822 (2002); cited in 2 Bernas, Constitutional Rights and Social Demands 224-227 (2004).
428
ANNOTATED
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in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that
the school’s drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1)
schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights
at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former
observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily
subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not
invade a student’s privacy since a student need not undress for this kind of drug testing; and (6) there is need for the
drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the
policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug-testing
policy constitutional.
In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high
school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching
band, and aca-
_______________
19 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
20 The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter limited the
determination of probable cause to a judge after an examination under oath of the complainant and his witnesses. Hence,
pronouncements of the US Federal Supreme Court and State Appellate Court may be considered doctrinal in this
jurisdiction, unless they are manifestly contrary to our Constitution. See Herrera, Handbook on Arrest, Search and
Seizure 8 (2003).
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demic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes
violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical
examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on
the basis of the school’s custodial responsibility and authority. In so ruling, said court made no distinction between a
non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest
and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-
testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to
engage.
In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1)
schools and their administrators stand in loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians,
and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students
and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right
to impose conditions on applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165
requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school
rules and regulations and policies. To be sure, the right to enroll is not abso- 430
ANNOTATED
Board
lute; it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-
being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and
until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary
and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student
population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow
from Vernonia, “[d]eterring drug use by our Nation’s schoolchildren is as important as enhancing efficient
enforcement of the Nation’s laws against the importation of drugs”; the necessity for the State to act is magnified by
the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body
and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the idea that the
testing aims to incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by
Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the
same reason. The Court notes in this regard that petitioner SJS, other than saying that “subjecting almost everybody
to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to
privacy,”23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of
RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented
_______________
21 Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.
22 Rollo (G.R. No. 158633), p. 204, respondents’ Consolidated Memorandum.
23 Rollo (G.R. No. 157870), p. 10.
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VOL. 570, NOVEMBER 3, 2008 431
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search under Art. III, Secs. 1 and 2 of the Constitution. 24Petitioner Laserna’s lament is just as simplistic, sweeping,
and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:
“The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a citizen’s constitutional right to privacy
and right against unreasonable search and seizure. They are quoted extensively hereinbelow.” 25
The essence of privacy is the right to be left alone. 26 In context, the right to privacy means the right to be free from
unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities. 27 And while there has been general agreement as to the basic function
of the guarantee against unwarranted search, “translation of the abstract prohibition against ‘unreasonable searches
and seizures’ into workable broad guidelines for the decision of particular cases is a difficult task,” to borrow
from C. Camara v. Municipal
_______________
24 1. Section 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.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the person or things to be seized.
25 Rollo (G.R. No. 158633), p. 9.
26 Ople, supra note 16, at p. 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932].
27 62 Am. Jur. 2d, Privacy, Section 1.
432
ANNOTATED
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Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and
defers to the state’s exercise of police power.29
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, “reasonableness”
is the touchstone of the validity of a government search or intrusion. 30 And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual’s
privacy interest against the promotion of some compelling state interest. 31 In the criminal context, reasonableness
requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for
employees––and students for that matter––under RA 9165 is in the nature of administrative search needing what
was referred to in Vernonia as “swift and informal disciplinary procedures,” the probable-cause standard is not
required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the
drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case,
the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent
circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in
the workplace. Their privacy expectation in a
_______________
28 387 U.S. 523; cited in 2 Bernas, supra note 18, at p. 232.

29 62 Am. Jur. 2d, Privacy, Section 17.
30 Vernonia & Board of Education, supra notes 15 & 18.
31 Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra.
433
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regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a
question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the
enabling law authorizing a search “narrowly drawn” or “narrowly focused”?32
The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and
regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in
a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test,
nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance
anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what,
in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to “random drug
test as contained in the company’s work rules and regulations x x x for purposes of reducing the risk in the work
place.”
For another, the random drug testing shall be undertaken under conditions calculated to protect as much as
possible the employee’s privacy and dignity. As to the mechanics of the test, the law specifies that the procedure
shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as
possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be
conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH)
to safeguard against results
_______________
32 Supra note 16, at pp. 166 & 169.

434
ANNOTATED
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tampering and to ensure an accurate chain of custody. 33 In addition, the IRR issued by the DOH provides that access
to the drug results shall be on the “need to know” basis; 34that the “drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the confidentiality of the test results.” 35 Notably, RA
9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence
relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug
testing. All told, therefore, the intrusion into the employees’ privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the
well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to
achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy
in the workplace via a mandatory random drug test. 36 To the Court, the need for drug testing to at least minimize
illegal drug use is substantial enough to override the individual’s privacy interest under the premises. The Court can
consider that the illegal
_______________
33 Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a laboratory is
required to use documented chain of custody procedures to maintain control and custody of specimens.
34 DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the original
copy of the test results form shall be given to the client/donor, copy furnished the DOH and the requesting agency.
35 Id., Sec. 7 [10.4].
36 Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop and
promote a national drug prevention program and the necessary guidelines in the work place, which shall include a
mandatory drafting and adoption of policies to achieve a drug-free workplace.
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VOL. 570, NOVEMBER 3, 2008 435
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drug menace cuts across gender, age group, and social-economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an investor’s dream were it not for the
illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law
public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this
modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of
preventing and deterring drug use among employees in private offices, the threat of detection by random testing
being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the
problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees,
the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to
properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is,
under the limited context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service. 37 And if RA 9165 passes the norm of reasonableness for
private employees, the more reason that it should pass the test for civil servants, who, by constitutional command,
are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. 38
Petitioner SJS’ next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of
power hardly
_______________
37 Code of Conduct and Ethical Standards for Public Officers and Employees, Sec. 2.
38 Constitution, Art. XI, Sec. 1.
436
ANNOTATED
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commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to
give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides
how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices
should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing
shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the
part of officers/employees, the testing shall take into account the company’s work rules. In either case, the random
procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test
results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department
of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among
other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the
drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and
employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall
be conducted.
The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the face of
the increasing complexity of the task of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to delegation of power, or entrusting to
administrative agencies the power of subordinate legislation, has become imperative, as here.
_______________
39 Tatad, supra note 6, at p. 351.

437
VOL. 570, NOVEMBER 3, 2008 437
Board
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the
mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students
of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of private and public employees, the constitutional soundness of
the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and
requirement.
We find the situation entirely different in the case of persons charged before the public prosecutor’s office with
criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are “randomness” and “suspicionless.” In the case of persons charged with a crime before
the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged,
they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled
before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to privacy. 40 To impose mandatory drug testing on
the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated
objectives of RA 9165.
_______________
40 Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, Const. Lim. 630 (8th ed.).
438
ANNOTATED
Board
Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition
in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its
Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from
implementing Sec. 36(f) and (g) of RA 9165. No costs.
SO ORDERED.
April 2, 2009. G.R. No. 174105.*
REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T. SANCHEZ, REGHIS M. ROMERO III,
MICHAEL L. ROMERO, NATHANIEL L. ROMERO, and JEROME R. CANLAS, petitioners, vs. SENATOR
JINGGOY E. ESTRADA and SENATE COMMITTEE ON LABOR, EMPLOYMENT AND HUMAN
RESOURCES DEVELOPMENT, respondents.
Remedial Law; Sub Judice Rule; The sub judice rule restricts comments and disclosures pertaining
to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the
administration of justice.—The sub judice rule restricts comments and disclosures pertaining to judicial
proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of
justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d),
Rule 71 of the Rules of Court. The rationale for the rule adverted to is set out in Nestlé Philippines v.
_______________
* EN BANC.
397
VOL. 583, APRIL 2, 2009 3

97
Romero II vs. Estrada
Sanchez, 154 SCRA 542 (1987): [I]t is a traditional conviction of civilized society everywhere that
courts and juries, in the decision of issues of fact and law should be immune from every extraneous
influence; that facts should be decided upon evidence produced in court; and that the determination of
such facts should be uninfluenced by bias, prejudice or sympathies.
Same; Same; An issue or a case becomes moot and academic when it ceases to present a justiciable
controversy, so that a determination of the issue would be without practical use and value.—The sub
judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution
of July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it ceases to
present a justiciable controversy, so that a determination of the issue would be without practical use and
value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and
which would be negated by the dismissal of the petition. Courts decline jurisdiction over such cases or
dismiss them on the ground of mootness, save in certain exceptional instances, none of which, however,
obtains under the premises.
Same; Same; A legislative investigation in aid of legislation and court proceedings has different
purposes; On-going judicial proceedings do not preclude congressional hearings in aid of legislation.—
A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand,
courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual
controversies arising between adverse litigants and involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather
information and, thus, legislate wisely and effectively; and to determine whether there is a need to
improve existing laws or enact new or remedial legislation, albeit the inquiry need not result in any
potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of
legislation.
Same; Same; Court has no authority to prohibit a Senate Committee from requiring persons to
appear and testify before it in connection with an inquiry in aid of legislation in accordance with its duly
published rules of procedure.—With the foregoing disquisition, the Court need not belabor the other
issues raised in this recourse.398

98 ANNOTATED
Suffice it to state that when the Committee issued invitations and subpoenas to petitioners to appear
before it in connection with its investigation of the aforementioned investments, it did so pursuant to its
authority to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec. 21 of the
Constitution, which was quoted at the outset. And the Court has no authority to prohibit a Senate
committee from requiring persons to appear and testify before it in connection with an inquiry in aid of
legislation in accordance with its duly published rules of procedure. Sabioemphasizes the importance of
the duty of those subpoenaed to appear before the legislature, even if incidentally incriminating questions
are expected to be asked.
SPECIAL CIVIL ACTION in the Supreme Court Prohibition.
Roberto A. Abad for petitioners.
The Senate Legal Counsel for respondents.
VELASCO, JR.,J.:
At issue once again is Section 21, Article VI of the 1987 Constitution which provides:
“The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.”
The Case
This is a petition for prohibition with application for temporary restraining order (TRO) and preliminary injunction
under Rule 65, assailing the constitutionality of the invitations and other compulsory processes issued by the Senate
Committee on Labor, Employment, and Human Resources Development (Committee) in connection with its
investigation399
VOL. 583, APRIL 2, 2009 399
on the investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey Mountain project.
The Facts
On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received from the Committee
an invitation,1 signed by the Legislative Committee Secretary, which pertinently reads as follows:
“Dear Mr. Romero:
Pursuant to P.S. Resolution No. 537, entitled: “RESOLUTION DIRECTING THE LABOR
COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF
THE FORMER PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA
FUNDS IN THE SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86
MILLION” and P.S. Resolution No. 543, entitled: “RESOLUTION DIRECTING THE COMMITTEE ON
LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF LEGISLATION, ON THE
ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN
PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II
BUILDERS OWNER REGHIS ROMERO II,” x x x the Committee on Labor, Employment and Human
Resources Development chaired by Sen. Jinggoy Ejercito Estrada will conduct a public hearing at 1:00
p.m. on the 23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate of the Philippines,
Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in the review and possible
amendments to the pertinent provisions of R.A. 8042, “the Migrant Workers Act” and to craft a much
needed legislation relative to the stated subject matter and purpose of the aforementioned Resolutions.
By virtue of the power vested in Congress by Section 21, Article VI of 1987
Constitution regarding inquiries in aid of legislation, may we have the privilege of inviting you to the
said hearing
_______________
1 Rollo, p. 39.
400

0 ANNOTATED
to shed light on any matter, within your knowledge and competence, covered by the subject matter and
purpose of the inquiry. Rest assured that your rights, when properly invoked and not unfounded, will be
duly respected.” (Emphasis in the original.)

In his letter-reply2 dated August 18, 2006, petitioner Romero II requested to be excused from appearing and
testifying before the Committee at its scheduled hearings of the subject matter and purpose of Philippine Senate (PS)
Resolution Nos. 537 and 543. He predicated his request on grounds he would later substantially reiterate in this
petition for prohibition.
On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that his request, being
unmeritorious, was denied.3 On the same date, invitations were sent to each of the other six petitioners, then
members of the Board of Directors of R-II Builders, Inc., requesting them to attend the September 4, 2006
Committee hearing. The following day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the
service of a subpoena ad testificandum4 on petitioner Romero II directing him to appear and testify before the
Committee at its hearing on September 4, 2006 relative to the aforesaid Senate resolutions. The Committer later
issued separate subpoenas5 to other petitioners, albeit for a different hearing date.
On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105, seeking to bar the
Committee from continuing with its inquiry and to enjoin it from compelling petitioners to appear before it pursuant
to the invitations thus issued.
_______________
2 Id., at p. 41.
3 Id., at p. 236.
4 Id., at p. 261.
5 Id., at pp. 280-293.
401
VOL. 583, APRIL 2, 2009 401
Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at the September 4, 2006
Committee investigation.
Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO 6 alleging, among others,
that: (1) he answered questions concerning the investments of OWWA funds in the Smokey Mountain project and
how much of OWWA’s original investment had already been paid; (2) when Senator Estrada called on Atty.
Francisco I. Chavez, as resource person, the latter spoke of the facts and issues he raised with the Court in Chavez v.
National Housing Authority,7 none of which were related to the subject of the inquiry; and (3) when Senator Estrada
adjourned the investigation, he asked petitioners Romero II and Canlas to return at the resumption of the
investigation.
The manifestation was followed by the filing on September 19, 2006 of another urgent motion for a TRO in
which petitioners imputed to the Committee the intention to harass them as, except for petitioner Romero II, none of
them had even been mentioned in relation to the subject of the investigation.
Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that ordered them to submit a
comment on the original plea for a TRO, interposed an opposition, 8 observing that the Senate’s motives in calling for
an investigation in aid of legislation were a political question. They also averred that the pendency of Chavez “is not
sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry into the matters alleged in the
petition.”
In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is sub judice owing to the
_______________
6 Id., at p. 264.
7 G.R. No. 164527, August 15, 2007, 530 SCRA 235.
8 Rollo, pp. 296-322.
402
2 ANNOTATED
pendency of the Chavez petition; (2) since the investigation has been intended to ascertain petitioners’ criminal
liability for plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and testify in violation of
their rights against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all of petitioners
would be in danger of being arrested, detained, and forced to give testimony against their will, before the Court
could resolve the issues raised in G.R. No. 164527.
In their Comment dated October 17, 2006,9 respondents made a distinction between the issues raised
in Chavez and the subject matter of the Senate resolutions, nixing the notion of sub judice that petitioners raised at
every possible turn. Respondents averred that the subject matter of the investigation focused on the alleged
dissipation of OWWA funds and the purpose of the probe was to aid the Senate determine the propriety of amending
Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the
future. They likewise raised the following main arguments: (1) the proposed resolutions were a proper subject of
legislative inquiry; and (2) petitioners’ right against self-incrimination was well-protected and could be invoked
when incriminating questions were propounded.
On December 28, 2006, petitioners filed their Reply 10reiterating the arguments stated in their petition, first and
foremost of which is: Whether or not the subject matter of the Committee’s inquiry is sub judice.
The Court’s Ruling
The Court resolves to dismiss the instant petition.

_______________
9 Id., at p. 335.
10 Id., at p. 503.
403
VOL. 583, APRIL 2, 2009 403
The Subject Matter of the Senate Inquiry Is
No Longer Sub Judice
Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of the Chavezpetition.
The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the
issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may
render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. 11 The rationale for the rule
adverted to is set out in Nestlé Philippines v. Sanchez:
“[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of
issues of fact and law should be immune from every extraneous influence; that facts should be decided
upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias,
prejudice or sympathies.” 12
Chavez, assuming for argument that it involves issues subject of the respondent Committee’s assailed
investigation, is no longer sub judice or “before a court or judge for consideration.”13 For by an en banc Resolution
dated July 1, 2008, the Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the petitioner
in Chavez, for reconsideration of the
_______________
11 3. Sec.Indirect contempt to be punished after charge and hearing.––After a charge in writing has been filed, and
an opportunity given to the respondent to comment thereon x x x and to be heard by himself or counsel, a person guilty of
any of the following acts may be punished for indirect contempt:
xxxx
Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.
(d)
12 G.R. Nos. L-75209 & L-78791, September 30, 1987, 154 SCRA 542, 546; citing In Re Stolen, 216 N.W. 127.
13 S.H. Gifis, Law Dictionary 492 (4th ed., 1996).
404
4 ANNOTATED
Decision of the Court dated August 15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect
of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas. The sub judiceissue has
been rendered moot and academic by the supervening issuance of the en banc Resolution of July 1, 2008 in G.R.
No. 164527. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy, so
that a determination of the issue would be without practical use and value. In such cases, there is no actual
substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the
petition.14 Courts decline jurisdiction over such cases or dismiss them on the ground of mootness, save in certain
exceptional instances,15 none of which, however, obtains under the premises.
Thus, there is no more legal obstacle––on the ground of sub judice, assuming it is invocable––to the
continuation of the Committee’s investigation challenged in this proceeding.
At any rate, even assuming hypothetically that Chavezis still pending final adjudication by the Court, still, such
circumstance would not bar the continuance of the committee investigation. What we said in Sabio v.
Gordonsuggests as much:
_______________
14 Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91, 97.
15 David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3,
2006, 489 SCRA 160, 214-215: Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third,
when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.
405
VOL. 583, APRIL 2, 2009 405
“The same directors and officers contend that the Senate is barred from inquiring into the same issues
being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any
prosecution or administrative action should not stop or abate any inquiry to carry out a legislative
purpose.” 16
A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts
conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies
arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation
are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and
effectively;17 and to determine whether there is a need to improve existing laws or enact new or remedial
legislation,18 albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not
preclude congressional hearings in aid of legislation.Standard Chartered Bank (Philippine Branch) v. Senate
Committee on Banks, Financial Institutions and Currencies(Standard Chartered Bank) provides the following
reason:
“[T]he mere filing of a criminal or an administrative complaint before a court or quasi-judicial body
should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely
easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or
an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the
_______________
16 G.R. Nos. 174340, 174318 & 174177, October 17, 2006, 504 SCRA 704, 739.
17 Arnault v. Nazareno, 87 Phil. 29 (1950).
18 Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, March 25, 2008, 549
SCRA 77, 168; citing W. Keefe & M. Ogul, The American Legislative Pro-cess: Congress and the States 20-23 (4th ed., 1977).
406

6 ANNOTATED
power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or
administrative investigation.
As succinctly stated in x x x Arnault v. Nazareno––
[T]he power of inquiry––with process to enforce it––is an essential and appropriate auxiliary to
the legislative function. A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or change; and
where the legislative body does not itself possess the requisite information—which is not
infrequently true—recourse must be had to others who possess it.” 19
While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before
lower courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these
cases’ doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions
awaiting final disposition before this Court.
The foregoing consideration is not all. The denial of the instant recourse is still indicated for another compelling
reason. As may be noted, PS Resolution Nos. 537 and 543 were passed in 2006 and the letter-invitations and
subpoenas directing the petitioners to appear and testify in connection with the twin resolutions were sent out in the
month of August 2006 or in the past Congress. On the postulate that the Senate of each Congress acts separately and
independently of the Senate before and after it, the aforesaid invitations and subpoenas are considered functos
oficio and the related legislative inquiry conducted is, for all intents and purposes, terminated. In this regard, the
Court draws attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643
entitled Neri v. Senate Committee on Accountability of Public Officers and Investigations:
_______________
19 G.R. No. 167173, December 27, 2007, 541 SCRA 456, 471-472.
407
VOL. 583, APRIL 2, 2009 407
“Certainly, x x x 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 before it. The
Rules of the Senate itself confirms this when it states:
xxxx
Unfinished business at the end of the session shall be taken up at the next session in the same
status. 123. SEC.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress,
but may be taken by the succeeding Congress as if present[ed] for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to
take up such unfinished matters, not in the same status, but as if presented for the first time. The
logic and practicality of such rule is readily apparent considering that the Senate of the succeeding
Congress (which will typically have a different composition as that of the previous Congress) should not
be bound by the acts and deliberations of the Senate of which they had no part. x x x” (Emphasis added.)
Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives Committees on Public
Information, Public Order and Safety, et al.,20 it can very well be stated that the termination of the assailed
investigations has veritably mooted the instant petition. This disposition becomes all the more impeccable,
considering that the Senate of the present Congress has not, per available records, opted to take up anew, as an
unfinished matter, its inquiry into the investment of OWWA funds in the Smokey Mountain project.
_______________
20 G.R. Nos. 170338 & 179275, December 23, 200, 575 SCRA 170.
408
8 ANNOTATED
With the foregoing disquisition, the Court need not belabor the other issues raised in this recourse. Suffice it to
state that when the Committee issued invitations and subpoenas to petitioners to appear before it in connection with
its investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of
legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset. And the
Court has no authority to prohibit a Senate committee from requiring persons to appear and testify before it in
connection with an inquiry in aid of legislation in accordance with its duly published rules of
procedure.21Sabio emphasizes the importance of the duty of those subpoenaed to appear before the legislature, even
if incidentally incriminating questions are expected to be asked:
“Anent the right against self-incrimination, it must be emphasized that [“this right may be] invoked by
the said directors and officers of Philcomsat x x x only when the incriminating question is being asked,
since they have no way of knowing in advance the nature or effect of the questions to be asked of
them.” That this right may possibly be violated or abused is no ground for denying respondent Senate
Committees their power of inquiry. The consolation is that when this power is abused, such issue may be
presented before the courts.
xxxx
Let it be stressed at this point that so long as the constitutional rights of witnesses x x x will be
respected by respondent Senate Committees, it [is] their duty to cooperate with them in their efforts to
obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is
to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify
fully with respect to matters
_______________
21 The Senate Blue Ribbon Committee v. Majaducon, G.R. Nos. 136760 & 138378, July 29, 2003, 407 SCRA 356, 362-363.
409
VOL. 583, APRIL 2, 2009 409

within the realm of proper investigation.” (Emphasis supplied.)
22
As a matter of long and sound practice, the Court refrains from touching on the issue of constitutionality except
when it is unavoidable and is the very lis mota23 of the controversy. So it must be here. Indeed, the matter of the
constitutionality of the assailed Committee invitations and subpoenas issued vis-à-vis the investigation conducted
pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been rendered moot
and academic by supervening events heretofore indicated. In short, there is no more investigation to be continued by
virtue of said resolutions; there is no more investigation the constitutionality of which is subject to a challenge.
WHEREFORE, the petition is DENIED.
No pronouncement as to costs.
SO ORDERED.
Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga,
Chico-Nazario, Nachura, Leonardo-De Castro, Brion and Peralta, JJ., concur.
Petition denied.
September 4, 2008. G.R. No. 180643.*

ROMULO L. NERI, petitioner, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS
AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
Presidency; Executive Privilege; Separation of Powers; Legislative Inquiries in Aid of Legislation;

There is a recognized presumptive presidential communications privilege; The presidential
communications privilege is fundamental to the operation of government and inextricably rooted in the
separation of powers under the Constitu-
_______________
* EN BANC.
153

53
Neri vs. Senate Committee on Accountability
of Public Officers and Investigations
tion.—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. The Court, in the earlier case of Almonte v. Vasquez, 244 SCRA 286 (1995), affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita, 488 SCRA
1 (2006), the case relied upon by respondent Committees, reiterated this concept. 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), 299 SCRA 744
(1998) and Chavez v. PEA, 384 SCRA 152 (2002). The Court articulated in these cases that “there are
certain types of information which the government may withhold from the public,” that there is a
“governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters;” and 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.”
Same; Same; Same; Same; When an executive official, who is one of those mentioned in the said
Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the President to said executive official, such that the
presumption in this situation inclines heavily against executive secrecy and in favor of disclosure.—
Respondent Committees’ observation that this Court’s Decision reversed the “presumption that inclines
heavily against executive secrecy and in favor of disclosure” arises from a piecemeal interpretation of the
said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and resorted to, but the decision must be
considered in its entirety. Note that the aforesaid presumption is made in the context of the circumstances
obtaining in Senate v. Ermita, 488 SCRA 1 (2006), which declared void Sections 2(b) and 3 of Executive
Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads: From
the above discussion on the meaning and scope of executive privilege, 154

54 ANNOTATED
both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types
of information of a sensitive character. While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure. (Emphasis and underscoring supplied) Obviously, the last sentence of the above-
quoted paragraph in Senate v. Ermita refers to the “exemption” being claimed by the executive officials
mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch.
This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O.
No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of disclosure.
Same; Same; Same; Same; Words and Phrases; “Quintessential” and “Non-Delegable,” Defined;
The fact that a power is subject to the concurrence of another entity does not make such power less
executive; “Quintessential” is defined as the most perfect embodiment of something, the concentrated
essence of substance; “Non-delegable” means that a power or duty cannot be delegated to another or,
even if delegated, the responsibility remains with the obligor; 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.—The fact that a power is subject to the concurrence of another entity does not make such power
less executive. “Quintessential” is defined as the most perfect embodiment of something, the concentrated
essence of substance. On the other hand, “non-delegable” means that a power or duty cannot be delegated
to another or, even if delegated, the responsibility remains with the obligor. The power to enter into an
executive agreement is in essence an executive power. This authority of the Presi- 155

55
dent 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.
Same; Same; Same; Same; Same; Doctrine of “Operational Proximity”; The doctrine of
“operational proximity” was laid down precisely to limit the scope of the presidential communications
privilege.—It must be stressed that the doctrine of “operational proximity” was laid down in In re: Sealed
Case, No. 96-3124, June 17, 1997, 121 F.3d 729, 326 U.S. App. D.C. 276, precisely to limit the scope of
the presidential communications privilege. The U.S. court was aware of the dangers that a limitless
extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to
White House staff, and not to staffs of the agencies, and then only to White House staff that has
“operational proximity” to direct presidential decision-making.
Same; Same; Same; Same; Same; Same; “Organizational Test”; In determining which test to use—
whether the Operational Proximity Test or the Organizational Test—the main consideration is to limit the
availability of executive privilege only to officials who stand proximate to the President, not only by
reason of their function, but also by reason of their positions in the Executive’s organizational structure.
—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. Nevertheless, in circumstances in which the official involved is far too remote, this
Court also mentioned in the Decision the organizational testlaid down in Judicial Watch, Inc. v.
Department of Justice, 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141. This goes to
show that the operational proximity test used in the Decision is not considered conclusive in every case.
In determining which test to use, the main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by reason of their function, but also by
reason of their positions in the Executive’s organizational struc- 156

56 ANNOTATED
ture. Thus, respondent Committees’ fear that the scope of the privilege would be unnecessarily
expanded with the use of the operational proximity test is unfounded.
Same; Same; Same; Same; 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.—It must be stressed that the President’s claim of executive privilege is not merely founded on
her generalized interest in confidentiality. 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. Thus, the Letter stated: The context
in which executive privilege is being invoked is that the information sought to be disclosed might
impair our diplomatic as well as economic relations with the People’s Republic of China. Given the
confidential nature in which this information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied) Even in Senate v. Ermita, 488 SCRA 1 (2006), 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.
Same; Same; Same; Same; Considering that the information sought through the three (3) questions
subject of this Petition involves the President’s dealings with a foreign nation, with more reason, the
Court is wary of approving the view that Congress may peremptorily inquire into not only official,
documented acts of the President but even her confidential and informal discussions with her close
advisors on the pretext that said questions serve some vague legislative need.—Considering that the
information sought through the three (3) questions subject of this Petition involves the President’s
dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress
may peremptorily inquire into not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the pretext that said questions serve some
vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted
consequences157

57
of subjecting a Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge constitutional functions in the face
of intense and unchecked legislative incursion into the core of the President’s decision-making process,
which inevitably would involve her conversations with a member of her Cabinet.
Same; Same; Same; Public Officers; Right to Information; Accountability and Transparency; The
constitutional right of the people to information and the constitutional policies on public accountability
and transparency are the twin postulates vital to the effective functioning of a democratic government.—
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. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they are denied access to information. And the
policies on public accountability and democratic government would certainly be mere empty words if
access to such information of public concern is denied. 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.
Same; Same; Same; Same; Same; Same; The right to information is not an absolute right—that
there is a recognized public interest in the confidentiality of such information covered by executive
privilege is a recognized principle in other democratic States.—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. He himself has repeatedly expressed his
willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the three
(3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said questions. We have discussed the reasons why
these answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in 158

58 ANNOTATED
other democratic States. To put it simply, the right to information is not an absolute right. Indeed,
the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the
law is unmistakable.
Same; Same; Same; Same; Same; Same; The demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum
issued by Congress and neither does the right to information grant a citizen the power to exact testimony
from government officials.—The right primarily involved here is the right of respondent Committees to
obtain information allegedly in aid of legislation, not the people’s right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As laid down
in Senate v. Ermita, 488 SCRA 1 (2006), “the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena duces
tecumissued by Congress” and “neither does the right to information grant a citizen the power to exact
testimony from government officials.” As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees
and petitioner Neri and that there was no prior request for information on the part of any individual
citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature’s right
to information in a legitimate legislative inquiry and the public’s right to information.
Same; Same; Same; Same; The Court cannot uphold the view that when a constitutionally
guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation,
the legislative purpose of the Committees’ questions can be sufficiently supported by the expedient of
mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance—the
presumption of privilege can only be overturned by a showing of compelling need for disclosure of the
information covered by executive privilege.—It must be clarified that the Decision did not pass upon the
nature of respondent Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes
respondent Committees’ power to investigate the NBN Project in aid of legislation. However, this 159

59
Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent
Committees’ questions can be sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their inquiry as a whole may have relevance. 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 need for disclosure of the information covered by executive
privilege.
Same; Same; Same; Same; 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.—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. Also, the bare standard of “pertinency” set
in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict between
two (2) separate, co-equal and coordinate Branches of the Government.
Same; Same; Same; Same; Whatever test we may apply, the starting point in resolving the
conflicting claims between the Executive and the Legislative Branches is the recognized existence of the
presumptive presidential communications privilege.—Whatever test we may apply, the starting point in
resolving the conflicting claims between the Executive and the Legislative Branches is the recognized
existence of the presumptive presidential communications privilege. This is conceded even in the
Dissenting Opinion of the Honorable Chief Justice Puno, which states: A hard look at Senate v.
Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential
communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other
related Nixoncases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v.
Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a
presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v.
Nixon and160

60 ANNOTATED
recognized a presumption in favor of confidentiality of Presidential communications.
Same; Same; Same; Same; The presumption in favor of Presidential communications puts the
burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific
need for the information to be elicited by the answers to the three (3) questions subject of this case, to
enable them to craft legislation—for sure, a factual basis for situations covered by bills is not critically
needed before legislative bodies can come up with relevant legislation unlike in the adjudication of cases
by courts of law.—The presumption in favor of Presidential communications puts the burden on the
respondent Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable them to
craft legislation. Here, there is simply a generalized assertion that the information is pertinent to the
exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It is not
clear what matters relating to these bills could not be determined without the said information sought by
the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate
Concurring Opinion: …If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three questions will not necessarily bolster or
inhibit respondents from proceeding with such legislation. They could easily presume the worst of
the president in enacting such legislation. 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.
Same; Same; Same; Same; Oversight Function; 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—curbing graft and
corruption is merely an oversight function of 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 in161

61
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. 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.
Same; Same; Same; Same; Same; While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government transaction, it is
simply not a task for the Senate to perform—the role of the Legislature is to make laws, not to determine
anyone’s guilt of a crime or wrongdoing.—The general thrust and the tenor of the three (3) questions is to
trace the alleged bribery to the Office of the President. While it may be a worthy endeavor to investigate
the potential culpability of high government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws,
not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the
Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or
prosecute.
Same; Same; Same; Same; Same; Congress; There is no Congressional power to expose for the
sake of exposure.—No matter how noble the intentions of respondent Committees are, they cannot
assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are
liable for a crime or illegal activity, the investigation of the role played by each official, the determination
of who should be haled to court for prosecution and the task of coming up with conclusions and finding of
facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate.
Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an
end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e.legislation.
Investigations conducted solely to gather incriminatory evidence and “punish” those investigated are
indefensible. There is no Congressional power to expose for the sake of exposure. 162

62 ANNOTATED
Same; Same; Same; Same; Same; Ombudsman; Courts; 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, and the same holds true for our courts upon
which the Constitution reposes the duty to determine criminal guilt with finality.—It is important to stress
that complaints relating to the NBN Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has
the duty “to investigate any act or omission of any public official, employee, office or agency when
such act or omission appears to be illegal, unjust, improper, or inefficient.” 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. The same holds true for
our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed,
the rules of procedure in the Office of the Ombudsman and the courts are well-defined and ensure that
the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and
safeguarded.
Same; Same; Congress; The Legislature’s need for information in an investigation of graft and
corruption cannot be deemed compelling enough to pierce the confidentiality of information validly
covered by executive privilege.—Should respondent Committees uncover information related to a
possible crime in the course of their investigation, they have the constitutional duty to refer the matter to
the appropriate agency or branch of government. Thus, the Legislature’s need for information in an
investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of
information validly covered by executive privilege. As discussed above, the Legislature can still legislate
on graft and corruption even without the information covered by the three (3) questions subject of the
petition.
Same; Same; Same; Legislative inquiries, unlike court proceedings, are not subject to the exacting
standards of evidence essential to arrive at accurate factual findings to which to apply the law; Every
person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent
until proven guilty in proper163

63
proceedings by a competent court or body.—Legislative inquiries, unlike court proceedings, are not
subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to
apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provides that “technical rules of evidence applicable to judicial proceedings which do not
affect substantive rights need not be observed by the Committee.” Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not
apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen,
has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or
body.
Same; Congress; An unconstrained congressional investigative power, like an unchecked Executive,
generates its own abuses.—Respondent Committees’ second argument rests on the view that the ruling
in Senate v. Ermita, 488 SCRA 1 (2006), requiring invitations or subpoenas to contain the “possible
needed statute which prompted the need for the inquiry” along with the “usual indication of the subject of
inquiry and the questions relative to and in furtherance thereof” is not provided for by the Constitution
and is merely an obiter dictum. On the contrary, the Court sees the rationale and necessity of compliance
with these requirements. An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has
been abused (or has the potential for abuse) have been raised many times. Constant exposure to
congressional subpoena takes its toll on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress’
power. The legislative inquiry must be confined to permissible areas and thus, prevent the “roving
commissions” referred to in the U.S. case, Kilbourn v. Thompson, 103 U.S. 168 (1880). Likewise,
witnesses have their constitutional right to due process. They should be adequately informed what matters
are to be covered by the inquiry. It will also allow them to prepare the pertinent information and
documents. To our mind, these requirements concede too little political costs or burdens on the part of
Congress when viewed vis-à-vis the immensity of its power of inquiry.164

64 ANNOTATED
Same; Courts; Judicial Review; While it is true that the 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.—Anent the third
argument, 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.
Same; Same; Contempt; The Court does not believe that respondent Committees have the discretion
to set aside their rules anytime they wish, and this is especially true where what is involved is the
contempt power; It must be stressed that the Rules are not promulgated to benefit legislative committees
—more than anybody else, it is the witness who has the highest stake in the proper observance of the
Rules.—Obviously the deliberation of the respondent Committees that led to the issuance of the contempt
order is flawed. Instead of being submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter presented to the other members for signing.
As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of
the proceedings that took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter was taken up.
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) All the limitations embodied in the foregoing provision form part of
the witness’ settled expectation. If the limitations are not observed, the witness’ settled expectation is
shattered. Here, how could there be a majority vote when the members in attendance are not enough to
arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a
majority vote in a proceeding in which the165

65
matter has been fully deliberated upon. There is a greater measure of protection for the witness when
the concerns and objections of the members are fully articulated in such proceeding. 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.
Senate; 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, but 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.—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. The Rules of the Senate itself confirms this when it
states: RULE XLIV UNFINISHED BUSINESS SEC. 123.Unfinished business at the end of the session
shall be taken up at the next session in the same status. All pending matters and proceedings shall
terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if
present for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress
are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of
the succeeding Congress to take up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such a rule is readily apparent considering that
the Senate of the succeeding Congress (which will typically have a different composition as that of the
previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with respect to the conduct of its business, then pending
matters will not be deemed terminated166

66 ANNOTATED
with the expiration of one Congress but will, as a matter of course, continue into the next Congress
with the same status.
Same; Rules on Legislative Inquiries; It is incumbent upon the Senate to publish the rules for its
legislative inquiries in each Congress or otherwise make the published rules clearly state that the same
shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put
public on notice.—Section 136 of the Senate Rules quoted above takes into account the new composition
of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of
each session in which the newly elected Senators shall begin their term. However, it is evident that the
Senate has determined that its main rules are intended to be valid from the date of their adoption until
they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply
state “(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general
circulation.” The latter does not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of
the next Congress may easily adopt different rules for its legislative inquiries which come within the rule
on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise
make the published rules clearly state that the same shall be effective in subsequent Congresses or until
they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for
its present rules on legislative inquiries to be effective even in the next Congress, it could have easily
adopted the same language it had used in its main rules regarding effectivity.
Same; Same; Not all orders issued or proceedings conducted pursuant to the subject Rules are null
and void—only those that result in violation of the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the rights of witnesses as expressed in
Section 21, Article VI of the Constitution.—Lest the Court be misconstrued, it should likewise167

67
be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null
and void. Only those that result in violation of the rights of witnesses should be considered null and void,
considering that the rationale for the publication is to protect the rights of witnesses as expressed in
Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.
Separation of Powers; Checks and Balances; In a free and democratic society, the interests of these
Executive and Legislative branches inevitably clash, but each must treat the other with official courtesy
and respect.—On a concluding note, we are not unmindful of the fact that the Executive and the
Legislature are political branches of government. In a free and democratic society, the interests of these
branches inevitably clash, but each must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks and balances among the
different branches of government.
Same; Same; Accountability and Transparency; There is no question that any story of government
malfeasance deserves an inquiry into its veracity, but the best venue for this noble undertaking is not in
the political branches of government—the customary partisanship and the absence of generally accepted
rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test
of the constitutional guarantee of due process of law.—While this Court finds laudable the respondent
Committees’ well-intentioned efforts to ferret out corruption, even in the highest echelons of government,
such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and
granted instead to the other branches of government. There is no question that any story of government
malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on
the constitutional command of transparency and public accountability. The recent clamor for a “search for
truth” by the general public, the religious community and the academe is an indication of a concerned
citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this
noble undertaking is not in the political branches of government. The customary partisanship 168

68 ANNOTATED
and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the
truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We
believe the people deserve a more exacting “search for truth” than the process here in question, if that is
its objective.
QUISUMBING, J., Separate Opinion on the Motion for Reconsideration:
Legislative Inquiries in Aid of Legislation; Due Process; In petitioners’ case, respondents had
neglected to observe elements of due process on more than one occasion in their proceedings, and
thereby committed grave abuse of discretion which is proscribed by the present fundamental law.—For as
long as the requirement of due process is paramount in proceedings involving life and liberty, the instant
motion for reconsideration, which merely reiterates arguments that have been adequately threshed out in
the Decision, must emphatically be denied. With due respect, we find that in Neri’s case, respondents had
neglected to observe elements of due process on more than one occasion in their proceedings, and thereby
committed grave abuse of discretion which is proscribed by the present fundamental law.
Same; Same; Rules on Legislative Inquiries; Void-for-Vagueness Doctrine; In the absence of a
published rule of procedure on a matter which is the subject of legislative inquiry, any action which
affects substantial rights of persons would be anathema, and risks unconstitutionality, and even if there is
such a rule or statute duly published, if it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application, the rule or
statute would be repugnant to the Constitution.—The current Senate cannot in good conscience neglect to
publish its Rules of Procedure. Nor could its Committee ignore the Rules, specially those on quorum. In
the absence of a published rule of procedure on a matter which is the subject of legislative inquiry, any
action which affects substantial rights of persons would be anathema, and risks unconstitutionality. Even
if there is such a rule or statute duly published, if it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application, the rule or statute would be
repugnant to the Constitution in two respects: it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of 169

69
what conduct to avoid; and, it leaves the law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle. How much more in this case
where there is a patent lack of publication and proper notice of the applicable rules. Or where the rules are
misread and misapplied resulting in lack of quorum.
Same; Same; Same; The denial of a person’s fundamental right to due process amounts to the
illegality of the proceedings against him.—Beyond debate, the fundamental law prohibits deprivation of
liberty without due process of law. Comparatively speaking, the Court has on many occasions required
judges to comply strictly with the due process requirements on issuing warrants of arrest, failure of which
has resulted in the voiding of the warrants. The denial of a person’s fundamental right to due process
amounts to the illegality of the proceedings against him. The doctrine consistently adhered to by the
Supreme Court is that a denial of due process suffices to cast on the official act taken by whichever
branch of the government the impress of nullity, the fundamental right to due process being a cornerstone
of our legal system. The right to due process is a cardinal and primary right which must be respected in all
proceedings.
Same; Same; Same; It is a well-settled principle in law that what due process contemplates is
freedom from arbitrariness; what it requires is fairness and justice; substance, rather than form, being
paramount.—In the instant controversy, the least respondents could have done, after browbeating the
petitioner Neri (who was sick at that time) with a barrage of questions was to have granted his request for
a copy of the questions for the next hearing. It is a well-settled principle in law that what due process
contemplates is freedom from arbitrariness; what it requires is fairness and justice; substance, rather than
form, being paramount. It is essential that the contemner be granted an opportunity to meet the charges
against him and to be heard in his defense, as contempt of court proceedings are commonly treated as
criminal in nature. A finding of guilt for an offense, no matter how light, for which one is not properly
charged and tried cannot be countenanced without violating the rudimentary principle of due process. 170

70 ANNOTATED
PUNO,C.J., Dissenting Opinion:
Senate; Rules on Legislative Inquiries; There is merit in the contention of respondent Senate
Committees that the Rules of Procedure Governing Inquiries need not be published by the Senate of every
Congress, as the Senate is a continuing body.—It is my considered view that there is merit in the
contention of respondent Senate Committees that the Rules of Procedure Governing Inquiries need not be
published by the Senate of every Congress, as the Senate is a continuing body. The continuity of these
rules from one Congress to the next is both an incident and an indicium of the continuing nature of the
Senate.
Same; The deliberations of the 1986 Constitutional Commission show that the nature of the Senate
as a continuing body hinged on the staggering of terms of the Senators; The structure of the Philippine
Senate being evidently patterned after the U.S. Senate, it reflects the latter’s rationale for staggering
senatorial terms and constituting the Senate as a continuing body.—Excerpts from the deliberations of
the 1986 Constitutional Commission provide us a brief history of the Senate of the Philippines and its
intended nature as a continuing legislative body, viz.: x x x The above deliberations show that the
nature of the Senate as a continuing body hinged on the staggering of terms of the Senators, such
that the term of one-half or twelve of the Senators (“remaining Senators”) would subsist and continue into
the succeeding Congress, while the term of the other half or twelve Senators (“outgoing Senators”) would
expire in the present Congress. As pointed out by Commissioner Gregorio J. Tingson, this arrangement
whereby half of the Senate’s membership continues into the next Congress is designed to help ensure
“stability of governmental policies.” The structure of the Philippine Senate being evidently
patterned after the U.S. Senate, it reflects the latter’s rationale for staggering senatorial terms and
constituting the Senate as a continuing body.
Same; It is the staggering of the terms of the 24 Senators and allowing the terms of office of a
portion of the Senate membership to continue into the succeeding Congress that provides the stability
indispensable to an effective government, and makes the Senate a continuing body as intended by the
framers of both the 1935 (as amended) and the 1987 Constitutions; Part of the stability provided 171

71
by a continuing Senate is the existence of rules of proceedings adopted pursuant to the power
granted by the U.S. Constitution, rules that continue to be in effect from one Congress to the next until
such rules are repealed or amended, but with the process for repeal and amendment also being governed
by the subsisting rules.—In sum, it is the staggering of the terms of the 24 Senators and allowing the
terms of office of a portion of the Senate membership to continue into the succeeding Congress—
whether two-thirds under the 1935 Constitution or one-half under the 1987 Constitution—that
provides the stability indispensable to an effective government, and makes the Senate a continuing
body as intended by the framers of both the 1935 (as amended) and the 1987 Constitutions. Part of
the stability provided by a continuing Senate is the existence of rules of proceedings adopted pursuant
to the power granted by the U.S. Constitution, rules that continue to be in effect from one Congress to
the nextuntil such rules are repealed or amended, but with the process for repeal and amendment also
being governed by the subsisting rules. U.S. Senator Francis Warren cautions that a Senate that is not
continuing, but instead new in each Congress, opens all rules to debate as a new matter; the Senate
will be totally and wholly without rules as it proceeds “at sea without rudder or compass regarding
rules.” Thus, in the U.S., the Senate rules of proceedings provide that “(t)he rules of the Senate shall
continue from one Congress to the next Congress unless they are changed as provided in these rules.”
These rules, adopted on January 11, 1884 and made effective on January 21, 1884, continue to be in
effect to this day alongside the continuing membership of the Senate.
Same; The Senate Rules do not provide for their expiration at the termination of every Congress—
on the contrary, Rule LI provides that at the opening of every Congress, the Senate President may
endorse the Senate Rules to the appropriate committee for amendment or revision, which connotes that
the Senate Rules must be subsisting for them to be subject to amendment or revision.—Patterned after the
U.S. Constitution, the 1987 Constitution also provides under Article VI, Section 16(3) that “(e)ach House
may determine the rules of its proceedings…” As in the U.S. Senate, the Senate Rules (of proceedings)
adopted by the Philippine Senate have a continued effect from one Congress to the next as shown by
the following172

72 ANNOTATED
provisions of the Philippine Senate Rules: “Rule LII (Date of Taking Effect), Section 137: These
Rules shall take effect on the date of their adoption and shall remain in force x x x “Rule LI
(Amendments to, Or revisions Of, The Rules), Section 136: x x x until they are amended or repealed.”
x x x At the start of each session in which the Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules to the appropriate committee for
amendment or revision. “The Rules may also be amended by means of a motion which should be
presented at least one day before its consideration, and the vote of the majority of the Senators present in
the session shall be required for its approval.” (emphasis supplied) It is obvious that the above rules do
not provide for the expiration of the Senate Rules at the termination of every Congress. On the
contrary, Rule LI provides that at the opening of every Congress, the Senate President may endorse the
Senate Rules to the appropriate committee for amendment or revision, which connotes that the Senate
Rules must be subsisting for them to be subject to amendment or revision. If the Senate were not a
continuing body, the Senate Rules governing its proceedings would not be given continuing effect from
one Congress to the next.
Same; Between the expiration of a Congress and the opening of the succeeding Congress, some
functions of the Senate continue during such recess—aside from the administrative functions performed
by Senate employees for the continued operation of the Senate as an institution, legislative functions
continue to be exercised.—While the present Senate Rules provide under Rule XLIV (Unfinished
Business), Section 123 that “(a)ll pending matters and proceedings shall terminate upon the expiration of
one (1) Congress,” between the expiration of a Congress and the opening of the succeeding
Congress, some functions of the Senate continue during such recess. Aside from the administrative
functions performed by Senate employees for the continued operation of the Senate as an
institution, legislative functions continue to be exercised. The offices of the “remaining Senators”
continue their legislative work in preparation for the succeeding Congress. These continuing functions
require continuing effectivity of the Senate Rules. An example of a provision of the Senate Rules
applicable to these continuing activities is Rule XXII (Filing and Consideration of Bills and Resolutions),
Section 61, which provides that “(a)ll bills and resolutions shall be 173

73
filed with the Office of the Secretary whether the Senate is in session or not.”
Same; Rules on Legislative Inquiries; Prescinding from the continuing nature of the Senate and the
continuing effectivity of the Senate Rules (of proceedings), it is my considered view that the Rules of
Procedure Governing Inquiries adopted by the Senate of the Tenth Congress on August 21, 1995 should
likewise be recognized to have continuing force and effect after being “duly published” in two
newspapers of general circulation on August 24, 1995.—It should be noted that the termination of
unfinished business upon expiration of one Congress is sanctioned by Rule XLIV, Section 123 of the
Senate Rules. The Senate Rules, may, however, be amended under Rule LI, Section 36. It remains to be
seen whether by amendment of the Senate Rules, the Senate would allow a Senate Committee conducting
an investigation, for example, to continue its proceedings after the expiration of a Congress as in the
afore-discussed case, McGrain v. Daugherty.Prescinding from the continuing nature of the Senate and
the continuing effectivity of the Senate Rules (of proceedings), it is my considered view that the Rules of
Procedure Governing Inquiries adopted by the Senate of the Tenth Congress on August 21, 1995
should likewise be recognized to have continuing force and effect after being “duly published” in
two newspapers of general circulation on August 24, 1995.
Same; Rules of Procedure; It cannot be gainsaid that rules of proceedings are a necessity in
preserving order, decency and regularity in a dignified public body.—It cannot be gainsaid that rules of
proceedings are a necessity in preserving order, decency and regularity in a dignified public body. These
rules are weapons of the weaker party to defend themselves from irregularities and abuses “which the
wantonness of power is but too often apt to suggest to large and successful majorities.” Thomas Jefferson
stated in the opening of his widely used, A Manual of Parliamentary Practice, viz.: “Mr. Onslow, the
ablest among the Speakers of the House of Commons, used to say, ‘It was a maxim he had often heard
when he was a young man, from old and experienced members, that nothing tended more to throw power
into the hands of the administration and those who acted with the majority of the House of Commons,
than in neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our
ancestors, operated as a check, and control,174

74 ANNOTATED
on the actions of the majority; and that they were, in many instances, a shelter and protection
to the minority, against the attempts of power.’ ”
Same; Same; Separation of Powers; The Court ought to take a deferential stance in interpreting the
rule-making power of the Senate as a co-equal branch of government, so long as rights of private parties
are not infringed; To the extent that the Rules of Procedure Governing Inquiries does not transgress the
requirement of due process as its outer limit, the Senate should be given room to interpret the duration of
its effectivity from one Congress to the next.—Following the principles of Ballin and Santiago, I submit
that the Court ought to take a deferential stance in interpreting the rule-making power of the Senate as a
co-equal branch of government, so long as rights of private parties are not infringed. The Rules of
Procedure Governing Inquiries is akin to the Senate Rules (of proceeding) in that the former governs the
internal workings of the Senate and its committees, although admittedly different in some respects from
the Senate Rules because it affects rights of parties not members of the Senate and, hence, requires
publication. To the extent that the Rules of Procedure Governing Inquiries does not transgress the
requirement of due process as its outer limit, the Senate should be given room to interpret the duration of
its effectivity from one Congress to the next.
Same; Same; Same; Due Process; It is within the competency of the Senate to prescribe a method
that shall reasonably conform to the due-process purpose of publication, and the Senate has validly
provided the method of one-time publication of its Rules of Procedure Governing Inquiries in two
newspapers of general circulation.—Similar to Ballin, there is no standard set by Article VI, Section
21 of the 1987 Constitution, as to the manner and frequency of publication of the Rules of
Procedure Governing Inquiries. It is within the competency of the Senate to prescribe a method that
shall reasonably conform to the due-process purpose of publication, and the Senate has validly
provided the method of one-time publication of its Rules of Procedure Governing Inquiries in two
newspapers of general circulation, in line with the ruling in Tañada. 175

75
Same; Same; Same; The unbroken practice of the Senate of not adopting Rules of Procedure
Governing Inquiries and publishing the same in every Congress, owing to its nature as a continuing
body, is not something to be lightly brushed aside, especially considering the grave consequences of
cutting this continuity; Where rights are not violated, the Court ought not like lightning strike down a
valid rule and practice of a co-equal branch of government, lest the walls delineating powers be burned.
—The unbroken practice of the Senate of not adopting Rules of Procedure Governing Inquiries and
publishing the same in every Congress, owing to its nature as a continuing body, is not something to be
lightly brushed aside, especially considering the grave consequences of cutting this
continuity. Holding itself to be a continuing body, the Senate has dispensed with the adoption not only of
Rules of Procedure Governing Inquiries, but also of Senate rules (of proceedings) at the start of every
Congress in the last ten years. As a consequence of the absence of rules if the Senate is held to be not a
continuing body, its acts during these Congresses may be put into question. A mathematical calculation of
a quorum in view of the staggered terms of the Senate membership cannot simply subvert the deeply-
entrenched thought-out rationale for the design of a continuing and stable Senate, shown to be necessary
in promoting effective government and protecting liberties. Where rights are not violated, the Court ought
not like lightning strike down a valid rule and practice of a co-equal branch of government, lest the walls
delineating powers be burned.
AZCUNA,J., Separate Dissenting Opinion:
Senate; It was the intent of the Constitutional Commission to preserve the nature of the Senate as a
continuing body to provide an institutional memory in the legislature.—It was the intent of the
Constitutional Commission to preserve the nature of the Senate as a continuing body to provide an
institutional memory in the legislature. The deliberations in the Commission, cited by the Chief Justice,
clearly bear this out. The Senate, therefore, need not re-publish its Rules with every new Congress.
Congress; Informing Function; Specific provisions of the present Constitution conferred on
Congress an information function, apart from its legislative function, which it may exercise to enable our
people to effectively take part in governance.—As I opined in my176

76 ANNOTATED
dissent in the JPEPA case, specific provisions of the present Constitution conferred on Congress an
information function, apart from its legislative function, which it may exercise to enable our people to
effectively take part in governance. The Senate investigation at issue is, therefore, in order even apart
from the power to legislate.
REYES, R.T.,J., Separate Opinion:
Courts; Judgments; A sad commentary of the times is when a Justice takes a stand which flatters the
political opposition, it is hailed as courageous; when the stand benefits the administration, it is hounded
as cowardly.—I AM one of two Justices who only concurred in the result of the majority decision penned
by esteemed colleague, Justice Teresita Leonardo-De Castro. I again effectively do so now in the
resolution of the motion for reconsideration through this separate opinion. It has become necessary for me
to clarify for the record my position on the issues of executive privilege and the contempt and arrest
powers of the Senate. As expected, given the highly-politicized complexion of the case, the Court ruling
received a mixed reaction of praise and flak. My kind of concurrence and that of Justice Leonardo A.
Quisumbing did not escape criticism. An article erroneously described Our vote as “unclear,” casting
doubt on the final verdict of the Neri petition. Another item wrongly branded us as mere “straddlers,”
sitting on both sides of the fence and coming up with a decision only at the last minute. A sad
commentary of the times is when a Justice takes a stand which flatters the political opposition, it is hailed
as courageous; when the stand benefits the administration, it is hounded as cowardly. But judicial
independence is neither here nor there. For me, it is judicial action that is right and reasonable, taken
without fear or favor, unmindful of incidental consequences.
Same; Same; Legal Research; A concurrence in the result is a favorable vote for the decision
crafted by the ponente.—A concurrence in the result is a favorable vote for the decision crafted by
the ponente. It simply means that I agreed in the outcome or disposition of the case, but not necessarily on
all the grounds given in the ponencia. I concurred with the weightier reasons stated in the majority
decision to grant the petition for certiorari and to quash the Senate arrest and contempt order against
petitioner, Secretary Neri. However, I did not share some of the reasoning of the ponente. If an177

77
unqualified vote of concurrence is allowed on a majority decision or dissenting opinion, there is no
reason why a vote in the result should be treated differently, much less proscribed.
Presidency; Executive Privilege; The distinction between presidential communication privilege and
executive privilege based on diplomacy and foreign relations is important because they are two different
categories of executive privilege recognized by jurisprudence, which two categories have different
rationale.—The distinction between presidential communication privilege and executive privilege based
on diplomacy and foreign relationsis important because they are two different categories of executive
privilege recognized by jurisprudence. The first pertains to those communications between the President
and her close advisors relating to official or state matters; the second are those matters that have a direct
bearing on the conduct of our external affairs with other nations, in this case the Republic of China. The
two categories of executive privilege have different rationale. Presidential communication privilege is
grounded on the paramount need for candor between the President and her close advisors. It gives the
President and those assisting her sufficient freedom to interact without fear of undue public scrutiny. On
the other hand, executive privilege on matters concerning our diplomatic or foreign relations is akin to
state secret privilege which, when divulged, will unduly impair our external relations with other countries.
Same; Same; A relatively higher standard of specificity is required for a claim of executive privilege
based on diplomacy or foreign relations.—The fact of conversation is the trigger of the presidential
communication privilege. There is no need to give specifics or particulars of the contents of the
conversation because that will obviously divulge the very matter which the privilege is meant to protect.
It will be an illusory privilege if a more stringent standard is required. In contrast, a relatively higher
standard of specificity is required for a claim of executive privilege based on diplomacy or foreign
relations. As in state secrets, this type of executive privilege is content based. This means that the claim
is dependent on the very content of the information sought to be disclosed. To adequately assess the
validity of the claim, there is a need for the court, usually in closed session, to become privy to the
information. This will enable the court to sufficiently assess whether or not the information 178

78 ANNOTATED
claimed to be privileged will actually impair our diplomatic or foreign relations with other countries.
It is the content of the information and its effect that trigger the privilege. To be sure, a generalized claim
of privilege will not pass the more stringent test of specificity.
Same; Same; Executive privilege is not an evil that should be thwarted and waylaid at every turn—
common sense and public policy require a certain degree of secrecy of some essential government
actions.—The Court’s statement in Ermita must be read in its proper context. It is merely a general
statement in favor of public disclosure and against government secrecy. To be sure, transparency of
government actions is a laudable virtue of a republican system of government such as ours. After all, a
public office is a public trust. A well informed citizenry is essential in a democratic and republican
government. But not all privileges or those that prevent disclosure of government actions are
objectionable. Executive privilege is not an evil that should be thwarted and waylaid at every turn.
Common sense and public policy require a certain degree of secrecy of some essential government
actions. Presidential communication privilege is one of them. The President and her close advisor should
be given enough leeway to candidly discuss official and state matters without fear of undue public
scrutiny. The President cannot effectively govern in a fishbowl where her every action is dissected and
scrutinized. Even the Senate itself enjoys the same privilege in the discharge of its constitutional
functions. Internal workings of the Senate Committees, which include deliberations between the Senators
and their staffs in crafting a bill, are generally beyond judicial scrutiny.
Same; Same; Congress; Legislative Inquiries in Aid of Legislation; Oversight Function; It is
difficult to draw a line between the oversight function and the legislative function of the Senate.—There is
a statement in the majority decision that respondent Senate Committees were exercising their oversight
function, instead of their legislative powers in asking the three questions to Secretary Neri. The
characterization of the Senate power as one in the exercise of its oversight, instead of legislative, function
has severe repercussions because of this Court’s dicta in Ermita that the Senate’s oversight function “may
be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation .” In
exercising its oversight function, the Senate may only request the appearance of a public official. In
contrast, it may compel appearance when it is179

79
exercising its power of investigation in aid of legislation. On this score, I part way with the majority
decision. To be sure, it is difficult to draw a line between the oversight function and the legislative
function of the Senate. Nonetheless, there is sufficient evidence on record that the Senate Committees
were actually exercising their legislative power rather than their oversight function in conducting the
NBN-ZTE investigation. Various resolutions, privilege speeches and bills were filed in the Senate in
connection with the NBN-ZTE contract. Petitioner’s counsel, Atty. Antonio Bautista, even concedes that
the investigation conducted by the Senate Committees were in aid of legislation.
Same; Same; There is a consensus among the Justices of the Supreme Court that a claim of
executive privilege cannot succeed in a criminal proceeding—the right of the accused to due process of
law requires nothing less than full disclosure.—There is a consensus among the Justices of this Court that
a claim of executive privilege cannot succeed in a criminal proceeding. The reason is simple. The right of
the accused to due process of law requires nothing less than full disclosure. When vital information that
may exculpate the accused from a crime is withheld from the courts, the wheels of justice will be stymied
and the constitutional right of the accused to due process of law becomes illusory. It is the crucial need
for the information covered by the privilege and the dire consequences of nondisclosure on the discharge
of an essential judicial function which trumps executive privilege.
Same; Same; Legislative Inquiries in Aid of Legislation; The Senate Committees have more than
enough inputs and insights which would enable its members to craft proper legislation in connection with
its investigation on the NBN-ZTE deal—I do not see how the contents of the conversation between
Secretary Neri and the President, which is presumptively privileged, could possibly add more light to the
law-making capability of the Senate.—To my mind, the Senate failed to present a case of compelling
need for the information covered by the privilege. It must be borne in mind that Secretary Neri is
only one of the many witnesses in the NBN-ZTE investigation. In fact, he had already testified lengthily
for eleven (11) hours. Numerous resource persons and witnesses have testified before and after him. The
list includes Rodolfo “Jun” Lozada, Jr., Jose De Venecia IV, Chairman Benjamin Abalos, technical
consultants Leo San180

80 ANNOTATED
Miguel and Dante Madriaga. To date, the Senate Committees had conducted a total of twelve
hearings on the NBN-ZTE investigation. Given the sheer abundance of information, both consistent and
conflicting, I find that the Senate Committees have more than enough inputs and insights which would
enable its members to craft proper legislation in connection with its investigation on the NBN-ZTE deal. I
do not see how the contents of the conversation between Secretary Neri and the President, which is
presumptively privileged, could possibly add more light to the law-making capability of the Senate. At
the most, the conversation will only bolster what had been stated by some witnesses during the Senate
investigation.
Senate; The Senate does not cease to be a continuing body merely because only half of its members
continue to the next Congress—even a lesser number of Senators continuing into the next Congress will
still make the Senate a continuing body.—The Senate does not cease to be a continuing body merely
because only half of its members continue to the next Congress. To my mind, even a lesser number of
Senators continuing into the next Congress will still make the Senate a continuing body. The Senate must
be viewed as a collective body. It is an institution quite apart from the Senators composing it. The Senate
as an institution cannot be equated to its present occupants. It is indivisible. It is not the sum total of all
sitting Senators at any given time. Senators come and go but the very institution of the Senate remains. It
is this indivisible institution which should be viewed as continuing.
Same; Rules on Legislative Inquiries; Due Process; There is nothing in the constitutional provision
that commands that every new Congress must publish its rules of procedure—republication is necessary
only when there is an amendment or revision to the rules.—The Constitutional provision requiring
publication of Senate rules is contained in Section 21, Article VI of the 1987 Constitution, which reads:
The Senate or the House of Representatives or any of its respective Committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. The above provision only requires a “duly
published” rule of procedure for inquiries in aid of legislation. It is silent on republication. There is
nothing in the constitutional provision that commands that every new Congress must publish its rules of
proce-181
81
dure. Implicitly, republication is necessary only when there is an amendment or revision to the rules.
This is required under the due process clause of the Constitution.
Same; Separation of Powers; Judicial Review; We must not lightly intrude into the internal rules of
a co-equal branch—the doctrine of separation of powers demands no less than a prudent refusal to
interfere with the internal affairs of the Senate.—In Avelino v. Cuenco, 83 Phil. 17 (1949), this Court by a
vote of 6-4 refused to assume jurisdiction over a petition questioning the election of Senator Cuenco as
Senate President for lack of quorum. The case cropped up when then Senate President Avelino walked
out of the Senate halls followed by nine other Senators, leaving only twelve senators in the session hall.
The remaining twelve Senators declared the position of the Senate President vacant and unanimously
designated Senator Cuenco as the Acting Senate President. Senator Avelino questioned the election,
among others, for lack of quorum. Refusing to assume jurisdiction, this Court held: The Court will not
sally into the legitimate domain of the Senate on the plea that our refusal to intercede might lead into a
crisis, even a revolution. No state of things has been proved that might change the temper of the Filipino
people as a (sic) peaceful and law-abiding citizens. And we should not allow ourselves to be stampeded
into a rash action inconsistent with the claim that should characterize judicial deliberations. The same
principle should apply here. We must not lightly intrude into the internal rules of a co-equal branch. The
doctrine of separation of powers demands no less than a prudent refusal to interfere with the internal
affairs of the Senate. The issues of lack of quorum and the inclusion of the votes of the ex
officio members are beyond this Court’s judicial review.
Same; Same; Same; Judgments; If the Supreme Court allows Justices who are physically absent
from its sessions to cast their vote on a petition, there is no reason to treat the Senators differently.—
Apart from jurisprudence, common sense also requires that We should accord the same privilege and
respect to a co-equal branch. If this Court allows Justices who are physically absent from its sessions to
cast their vote on a petition, there is no reason to treat the Senators differently. It is also common
knowledge that even members of the House of Representatives cast their vote on a bill without taking part
in its deliberations and sessions. Certainly, what is182

82 ANNOTATED
sauce for the goose is sauce for the gander. If it is allowed in the House of Representatives, it
should be allowed in the Senate. Kung ito’y pinapayagan sa Mababang Kapulungan, dapat payagan
din sa Mataas na Kapulungan.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Antonio R. Bautista, Paul Lentejas and Jose Mari Valez, Jr. for petitioner.
Pacifico A. Agabin, Jose Anselmo I. Cadiz, Carlos P. Medina, Jr. for respondents.
David Jonathan V. Yap for respondent Senate Committee on Banks, Financial Institution & Currencies.
R E S O L U T I O N
LEONARDO-DE CASTRO,J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to
protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled communication and exchange of information
between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in
the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President’s
conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses
the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acri-
183
VOL. 564, SEPTEMBER 4, 2008 183
Neri vs. Senate Committee on Accountability of
Public Officers and Investigations
moniously, debated dispute between the Court’s co-equal branches of government. In this task, this Court should
neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of
them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and the respondent Senate Committees’ assertion of
their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case,
stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled
constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the “Decision”), granting the
petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security
(collectively the “respondent Committees”).3
A brief review of the facts is imperative.
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
_______________
1 Chaired by Hon. Senator Alan Peter S. Cayetano.

2 Chaired by Hon. Senator Manuel A. Roxas II.
3 Chaired by Hon. Senator Rodolfo G. Biazon.
184
ANNOTATED
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.6
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.7 The letter of Executive Secretary Ermita pertinently stated:
“Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining
the confidentiality of conversations of the President is necessary in the exercise of her executive and
policy decision making process. The expectation of a President to the confidentiality of her conversations
and correspondences, like the value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on
the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not
protected by the confidentiality of her conversations.
_______________
4 Transcript of the September 26, 2007 Hearing of the respondent Committees, pp. 91-92.
5 Id., pp. 114-115.
6 Id., pp. 276-277.
7 See Letter dated November 15, 2007.
185
VOL. 564, SEPTEMBER 4, 2008 185

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.
Given the confidential nature in which these information were conveyed to the President, he cannot
provide the Committee any further details of these conversations, without disclosing the very thing the
privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the
ZTE/NBN project be dispensed with.”
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President
invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner’s reply to
respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he thought
the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his
willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished
“in advance as to what else” he “needs to clarify.”
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127, 129, 136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN
Project), citing petitioner in contempt of respondent Committees and ordering his arrest 186
ANNOTATED
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. 8 He insisted that he had not
shown “any contemptible conduct worthy of contempt and arrest.” He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for advance notice of questions. He also
mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him,
this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications
elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees
committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject
communications as falling under the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President,
and (c) respondent Committees failed to adequately show a compelling need that would justify the limitation of the
privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the
second ground, we found that respondent Committees committed grave abuse of discretion in issuing the con-
_______________
8 See Letter dated January 30, 2008.

187
VOL. 564, SEPTEMBER 4, 2008 187
tempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not
contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that
led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their
inquiry was not in accordance with the “duly published rules of procedure,” and (e) they issued the contempt order
arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:
I
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE
ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO PRESUMPTION
THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE
IS CLAIMED CONSTITUTE STATE SECRETS. A.
EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS
APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT. B.188

ANNOTATED
ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO
JUSTIFY THE DISC C.LOSURE OF THE INFORMATION SOUGHT.
TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE
WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS. D.
FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND
THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE. E.
IV
CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT
CASE. A.
RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN
IN B. SENATE V. ERMITA.
RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH
THEIR INTERNAL RULES. C.
RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI,
SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE
DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT
CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT. D.
RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE. E.
189
VOL. 564, SEPTEMBER 4, 2008 189
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this
Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project
or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege
to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse the
presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to
overcome the presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner’s
testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to
the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing
presidential communications privilege; fourth, there is no right to pry into the President’s thought processes or
exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power
and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present
Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on
them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due process
and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent
has the final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the
Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them “to make much” of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive privilege
190
ANNOTATED
against disclosure as earlier held in Almonte v. Vasquez9and Chavez v. Public Estates Authority (PEA)10; (3) the
communications elicited by the three (3) questions are covered by executive privilege, because all the elements of
the presidential communications privilege are present; (4)the subpoena ad testificandum issued by respondent
Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present
Senate to publish its Rules renders the same void; and (6)respondent Committees arbitrarily issued the contempt
order.
Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the Office of
the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only after the
promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:
(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.
We shall discuss these issues seriatim.
_______________
9 G.R. No. 95367, May 23, 1995, 244 SCRA 286.

10 433 Phil. 506; 384 SCRA 152 (2002).
191
VOL. 564, SEPTEMBER 4, 2008 191
I
There Is a Recognized Presumptive

Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that presidential communications are
presumptively privileged reverses the “presumption” laid down in Senate v. Ermita11 that “inclines heavily against
executive secrecy and in favor of disclosure.” Respondent Committees then claim that the Court erred in relying on
the doctrine in Nixon.
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. The Court, in
the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications privilege is fundamental to
the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate
v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept. 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 “there are certain types of information which the government may withhold from the public,” 16that there is a
“governmental privilege against public disclosure with respect to state secrets regarding military,
_______________
11 G.R. No. 169777, April 20, 2006, 488 SCRA 1.

12 Supra, note 9.
13 Supra, note 11.
14 G.R. No. 130716, December 9, 1998, 299 SCRA 744.
15 Supra, note 10.
16 Almonte v. Vasquez, supra, note 9.
192
ANNOTATED
diplomatic and other national security matters”; 17 and 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.” 18
Respondent Committees’ observation that this Court’s Decision reversed the “presumption that inclines heavily
against executive secrecy and in favor of disclosure” arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion
thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita,
which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of
the decision in the said case reads:
“From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or
not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is
any recognition that executive officials are exempt from the duty to disclose information
_______________
17 Chavez v. Presidential Commission on Good Government, supra, note 14.

18 Senate v. Ermita, supra, note 11.
19 Telefunken Semiconductors Employees Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, December 18, 2000, 348
SCRA 565, 587; Valderama v. National Labor Relations Commission, G.R. No. 98239, April 25,1996, 256 SCRA 466, 472
citing Policarpio v. P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125, 131 (1959).
193
VOL. 564, SEPTEMBER 4, 2008 193

by the mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.” (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the “exemption” being
claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in
the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec.
2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to
invoke executive privilege given by the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita20 expounds on the premise of the foregoing ruling in this wise:
“Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the President’s authority and has
the effect of prohibiting the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch,
or in those instances where exemption from disclosure is necessary to the discharge of highly
important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest.
The privilege being, by definition, an exemption from the
_______________
20 Supra, note 11 at pp. 68-69.
194

ANNOTATED
obligation to disclose information, in this case to Congress, the necessity must be of such high degree as
to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is
“By order of the President,” which means that he personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such power. There is even less reason
to uphold such authorization in the instant case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this score.”
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
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.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling
inSenate v. Ermita,21 to wit:
Executive privilege
The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in
_______________
21 Id., at pp. 45-46.
195
VOL. 564, SEPTEMBER 4, 2008 195

light of how it has been defined and used in the legal literature of the United States.
Schwart defines executive privilege as “the power of the Government to withhold information
from the public, the courts, and the Congress.” Similarly, Rozell defines it as “the right of the
President and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public.” x x x In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez.Almonte used the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which explains the basis for the privilege:
“The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, he has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for protection
of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x” (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to “a presumptive privilege for Presidential communication,”
which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the
Motion for Reconsideration of respondent Committees, referring to the non-existence of a “presumptive
authorization” of an executive official, to mean that the “presumption” in favor of executive privilege “inclines
heavily against executive secrecy and in favor of disclosure” is to distort the ruling in the Senate v. Ermita and make
the same engage in self-contradiction.196
ANNOTATED
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or presumptive
authorization to invoke executive privilege by the President’s subordinate officials, as follows:
“When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power – the
President on whom executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive branch, and the due
respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom.”
(Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure
by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption
accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence
citing “the considerations justifying a presumptive privilege for Presidential communications.” 23
_______________
22 Id., at p. 58.
23 Id., at p. 50.
197
VOL. 564, SEPTEMBER 4, 2008 197
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not covered by
executive privilege because the elements of the presidential communications privilege are not present.
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.
“Quintessential” is defined as the most perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, “non-delegable” means that a power or duty cannot be delegated to another or, even
if delegated, the responsibility remains with the obligor.25 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
_______________
24 Webster Encyclopedic Unabridged Dictionary, Gramercy Books 1994, p. 1181.

25 Business Dictionary, http://www.businessdictionary.com/definition/non-delegable-duty.html
198
ANNOTATED
been recognized in Philippine jurisprudence. 26 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.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances,
which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches.
Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not
render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the
Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the
President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the
President does not render the power to pass law executive in nature. This is because the power to pass law is
generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter
or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions
laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the
Office of the President.
_______________
26 Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, et al. (105 Phil. 1030, 1038); See
also Commissioner of Internal Revenue v. John Gotamco & Sons, Inc., G.R. No. L-31092, February 27, 1987,148 SCRA
36, 39.
199
VOL. 564, SEPTEMBER 4, 2008 199
B. The “doctrine of operational prox-
imity” 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 Case27 precisely to
limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White
House staff, and not to staffs of the agencies, and then only to White House staff that has “operational proximity” to
direct presidential decision-making, thus:
“We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of
the privilege, could pose a significant risk of expanding to a large swath of the executive branch a
privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk,
the presidential communications privilege should be construed as narrowly as is consistent with ensuring
that the confidentiality of the President’s decision-making process is adequately protected. Not every
person who plays a role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the privilege should not
extend to staff outside the White House in executive branch agencies. Instead, the privilege should
apply only to communications
_______________
27 No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App. D.C. 276.
200

ANNOTATED
authored or solicited and received by those members of an immediate White House advisor’s staff who
have broad and significant responsibility for investigation and formulating the advice to be given the
President on the particular matter to which the communications relate. Only communications at that
level are close enough to the President to be revelatory of his deliberations or to pose a risk to the
candor of his advisers. See AAPS, 997 F.2d at 910 (it is “operational proximity” to the President
that matters in determining whether “[t]he President’s confidentiality interests” is
implicated).” (Emphasis supplied)
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.
Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the
Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice. 28 This goes to show that
the operational proximity test used in the Decision is not considered conclusive in every case. In determining which
test to use, the main consideration is to limit the availability of executive privilege only to officials who stand
proximate to the President, not only by reason of their function, but also by reason of their positions in the
Executive’s organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees’ and the Presi-
_______________
28 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141.
201
VOL. 564, SEPTEMBER 4, 2008 201
dent’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government
transparency, accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through the
Executive Secretary, of executive privilege because (a)between respondent Committees’ specific and demonstrated
need and the President’s generalized interest in confidentiality, there is a need to strike the balance in favor of the
former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution
on government transparency, accountability and disclosure of information, specifically, Article III, Section
7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article
_______________

29The 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 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 Article III, Sec. 7..
30The State recognizes the vital role of communication and information in nation-building. Article II, Sec. 24.
31Subject 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 II, Sec. 28.
32Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives. Article XI, Sec. 1.
33The State shall provide the policy environment for the full development of Filipino capability and the emergence of
communications structures suitable to the needs and aspirations of the nation and the balanced flow of information
into, Article XVI, Sec. 10.
202
ANNOTATED
VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized
interest in confidentiality. 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. Thus, the Letter stated:
_______________
out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.
34The President may contract or guarantee foreign loans on beh Article VII, Sec. 20.alf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law.
The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to Congress a
complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or
government-controlled corporations which would have the effect of increasing the foreign debt, and containing other
matters as may be provided by law.
35The Congress may establish an independent economic and planning agency headed by the President, which shall,
after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the
Congress provides otherwise, the National Economic and Development Authority shall function as the independent
planning agency of the government. Article XII, Sec. 9.
36Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority.
Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Article
XII, Sec. 21.
37Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national
interest and subject to criminal and civil sanctions, as may be provided by law. Article XII, Sec. 22.
203
VOL. 564, SEPTEMBER 4, 2008 203
“The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which this information were conveyed to the President, he cannot
provide the Committee any further details of these conversations, without disclosing the very thing the
privilege is designed to protect.” (emphasis supplied)
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.
It is easy to discern the danger that goes with the disclosure of the President’s communication with her advisor.
The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of
minds between officials of the Philippines and China. Whatever the President says about the agreement—
particularly while official negotiations are ongoing—are matters which China will surely view with particular
interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic
relations with the People’s Republic of China. We reiterate the importance of secrecy in matters involving foreign
negotiations as stated in United States v. Curtiss-Wright Export Corp.,38 thus:
“The nature of foreign negotiations requires caution, and their success must often depend on secrecy,
and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic, for this might
have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President, with the advice and
_______________
38 14 F. Supp. 230, 299 U.S. 304 (1936).
204

ANNOTATED
consent of the Senate, the principle on which the body was formed confining it to a small number of
members. To admit, then, a right in the House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign power would be to establish a dangerous
precedent.”
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v.
Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
“The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
“information on inter-government exchanges prior to the conclusion of treaties and executive agreements
may be subject to reasonable safeguards for the sake of national interest.” Even earlier, the same privilege
was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed
the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.
The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information.” 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.Although much has been said about “open” and “secret” diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson
_______________
39 G.R. No. 170516, promulgated July 16, 2008.
205
VOL. 564, SEPTEMBER 4, 2008 205

have clearly analyzed and justified the practice. In the words of Mr. Stimson:
“A complicated negotiation …cannot be carried through without many, many private
talks and discussion, man to man; many tentative suggestions and proposals. Delegates
from other countries come and tell you in confidence of their troubles at home and of
their differences with other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other circumstances… If
these reports… should become public… who would ever trust American Delegations in
another conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284)
x x x x
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of
democracy. As expressed by one writer, “It can be said that there is no more rigid system of silence
anywhere in the world.” (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938)
President Wilson in starting his efforts for the conclusion of the World War declared that we must
have “open covenants, openly arrived at.” He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to “muscle in.” An ill-timed
speech by one of the parties or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully published, there is ample
opportunity for discussion before it is approved.” (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194)” (Emphasis and underscoring supplied) 206

ANNOTATED
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign countries, viz.:
“x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of Representatives, “The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations.”Annals, 6th Cong., col. 613…” (Emphasis supplied;
underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves the
President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress
may peremptorily inquire into not only official, documented acts of the President but even her confidential and
informal discussions with her close advisors on the pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive
to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core
of the President’s decision-making process, which inevitably would involve her conversations with a member of her
Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people
to information and public accountability and transparency, the207
VOL. 564, SEPTEMBER 4, 2008 207
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. The citizenry can become prey to the whims and caprices of those to whom
the power has been delegated if they are denied access to information. And the policies on public accountability and
democratic government would certainly be mere empty words if access to such information of public concern is
denied.
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. He himself has repeatedly expressed
his willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the three (3)
questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these answers are covered by
executive privilege. That there is a recognized public interest in the confidentiality of such information is a
recognized principle in other democratic States. To put it simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law is
unmistakable. The high-208
ANNOTATED
lighted portions of the following provisions show the obvious limitations on the right to information, thus:
“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 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.
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.” ( Emphasis
supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may be
obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security
matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and diplomatic matters, as well as information on
inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that
even where there is no need to protect such state secrets, they must be “examined in strict confidence and
given scrupulous protection.”
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the people’s right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, “the demand of a
citizen for the production of documents pursuant to his right to information does not
_______________
40 Supra note 14.
209
VOL. 564, SEPTEMBER 4, 2008 209
have the same obligatory force as a subpoena duces tecumissued by Congress” and “neither does the right to
information grant a citizen the power to exact testimony from government officials.” As pointed out, these rights
belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior request for information on the part of any
individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature’s right
to information in a legitimate legislative inquiry and the public’s right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by
executive privilege.
III.
Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees’ inquiry
into the NBN Project. To reiterate, this Court recognizes respondent Committees’ power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed
privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose
of respondent Committees’ questions can be sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their210
ANNOTATED
inquiry as a whole may have relevance. 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 need for
disclosure of the information covered by executive privilege.
In the Decision, the majority held that “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.” 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.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it
is necessary to resolve the competing interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In
giving more weight to the latter, the Court ruled that the President’s generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated,
through its ruling extensively quoted in the Honorable Chief Justice Puno’s dissenting opinion, as follows:
“... this presumptive privilege must be considered in light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our view that ‘the twofold aim (of criminal justice) is
that guilt shall not escape or innocence suffer.’ Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633.
We have elected to employ an adversary system of criminal justice in which the parties 211
VOL. 564, SEPTEMBER 4, 2008 211

contest all issues before a court of law. The need to develop all relevant facts in the adversary system
is both fundamental and comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system depend on full disclosure of all
the facts, within the framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for the production of
evidence needed either by the prosecution or by the defense.
x x x x x x x x x
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions.
The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be
confronted with the witness against him’ and ‘to have compulsory process for obtaining witnesses in
his favor.’ Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty
without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President’s responsibilities against the inroads
of such a privilege on the fair administration of criminal justice. (emphasis supplied)
x x x x x x x x x
... the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic function of
the courts. A President’s acknowledged need for confidentiality in the communications of his office
is general in nature, whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The President’s broad interest in confidentiality of communication will212

ANNOTATED
not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some
bearingon the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice . The
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial.” (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a criminal
case but rather with the Senate’s need for information in relation to its legislative functions. This leads us to consider
once again just how critical is the subject information in the discharge of respondent Committees’ functions. 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.
Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the nature of a legislative
inquiry in aid of legislation in this wise:
“The sufficiency of the Committee’s showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions. There is a
clear difference between Congress’ legislative tasks and the responsibility of a grand jury, or any
institution engaged in like functions. While fact-finding by a legislative committee is undeniably a
part of its task, legislative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability, than on precise reconstruction of past
events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In
contrast,
_______________
41 Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
213
VOL. 564, SEPTEMBER 4, 2008 213

the responsibility of the grand jury turns entirely on its ability to determine whether there is probable
cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as
in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the
grand jury’s need for the most precise evidence, the exact text of oral statements recorded in their original
form, is undeniable. We see no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have been in the Committee’s
argument that the subpoenaed materials are necessary to its legislative judgments has been substantially
undermined by subsequent events.” (Emphasis supplied)
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. Also,
the bare standard of “pertinency” set in Arnault cannot be lightly applied to the instant case, which
unlike Arnaultinvolves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
“A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixoncases Sirica and Senate Select Committee on
Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent
cases all recognize that there is a presumptive privilege in favor of Presidential communications.
The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of
Presidential communications.
214
ANNOTATED
The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees
to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to
the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized
assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific
reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined without
the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O.
Tinga in his Separate Concurring Opinion:
…If respondents are operating under the premise that the president and/or her executive officials
have committed wrongdoings that need to be corrected or prevented from recurring by remedial
legislation, the answer to those three questions will not necessarily bolster or inhibit respondents
from proceeding with such legislation. They could easily presume the worst of the president in
enacting such legislation.
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. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question
Number 1 whether the President followed up the NBN project. According to the other counsel this question has
already been asked, is that correct? 215
VOL. 564, SEPTEMBER 4, 2008 215

ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include
Executive Agreements had been used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel
for petitioner has observed, there are intimations of a bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the
Senate? Will it result to the failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because
the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million
bribe it is possible that other government officials who had something to do with the approval of the contract would
be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.216

ANNOTATED
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the project after being told about the
alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill
a remedial law without forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill
should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or
how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this
burden, the presumption in favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly
impair the President’s performance of her function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to “speculate” regarding the questions covered by
the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on
Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably a
part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative
actions and
_______________
42 TSN, Oral Argument, March 4, 2008, pp. 417-422.

43 Supra, note 41 at pp. 725, 731-32.
217
VOL. 564, SEPTEMBER 4, 2008 217
their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress
legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent
Committees’ self-defeating proposition that without the answers to the three (3) questions objected to as privileged,
the distinguished members of the respondent Committees cannot intelligently craft legislation.
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. 44And
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.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
‘The “allocation of constitutional boundaries” is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, “the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with
_______________
44 Senate Select Committee on Presidential Campaign Activities v. Nixon held that Congress’ “asserted power to investigate and
inform” was, standing alone, insufficient to overcome a claim of privilege and so refused to enforce the congressional
subpoena. Id.
45 G.R. No. 89914, November 20, 1991, 203 SCRA 767.
218

ANNOTATED
the applicability of the principle in appropriate cases.’ (Emphasis supplied)
46
There, the Court further ratiocinated that “the contemplated inquiry by respondent Committee is not really ‘in
aid of legislation’ because it is not related to a purpose within the jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated
Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the
province of the courts rather than of the Legislature.”47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48
_______________
46 Id., at p. 776.
47 Id., at p. 783.
48 The dialogue between petitioner and Senator Lacson is a good illustration, thus:
SEN. LACSON. Did you report the attempted bribe offer to the President?
MR. NERI. I mentioned it to the President, Your Honor.
SEN. LACSON. What did she tell you?
MR. NERI. She told me, ‘Don’t accept it.”
SEN. LACSON. And then, that’s it?
MR. NERI. Yeah, because we had other things to discuss during that time.
SEN. LACSON. And then after the President told you, “Do not accept it,” what did she do? How did
you report it to the President? In the same context that it was offered to you?
MR. NERI. I remember it was over the phone, Your Honor.
SEN. LACSON. Hindi nga. Papaano ninyo ni-report, ‘Inoperan (offer) ako ng bribe na P200 million ni
219
VOL. 564, SEPTEMBER 4, 2008 219
While it may be a worthy endeavor to investigate the potential culpability of high government officials, including
the
_______________
Chairman Abalos or what? How did you report it to her?
Well, I said, ‘Chairman Abalos offered me 200 million for this.’ MR. NERI.
Okay. That clear? SEN. LACSON.
I’m sorry. MR. NERI.
That clear? SEN. LACSON.
I think so, Your Honor. MR. NERI.
And after she told you. ‘Do not accept it,’ what did she do? SEN. LACSON.
I don’t know anymore, Your Honor, but I understand PAGC investigated it or—I was not privy to any
action of PAGC. MR. NERI.
You are not privy to any recommendation submitted by PAGC? SEN. LACSON.
No, Your Honor. MR. NERI.
How did she react, was she shocked also like you or was it just casually responded to as, “Don’t
accept.” SEN. LACSON.
It was over the phone, Your Honor, so I cannot see her facial expression. MR. NERI.
Did it have something to do with your change of heart so to speak—your attitude towards the NBN
project as proposed by ZTE? SEN. LACSON.
Can you clarify, Your Honor, I don’t understand the change of heart. MR. NERI.
SEN. LACSON. Because, on March 26 and even on November 21, as early as November 21, 2006 during the
NEDA Board Cabinet Meeting, you were in agreement with the President that it should be “pay as you use” and not
take or pay. There should be no government subsidy and it should be BOT or BOO or any similar scheme and you
were in agreement, you were not arguing. The President was not arguing with you, you were not arguing
with the President, so you were in agree-
220
ANNOTATED
President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the
Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature
adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a “search for truth,”
which in respondent Committees’ view appears to be equated with the search for persons responsible for
“anomalies” in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon
our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who should be haled to court for prosecution
and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of
criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it
bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the
Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and “punish” those
investigated are indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this regard,
the pronouncement in Barenblatt v. United States50 is instructive, thus:
_______________
ment and all of a sudden nauwi tayo doon sa lahat ng—and proposal all in violation of the President’s Guidelines
and in violation of what you thought of the project?
Well, we defer to the implementing agency’s choice as to how to implement the project. MR. NERI.
49 Watkins v. United States, 354 U.S. 178 (1957).
50 360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959).
221
VOL. 564, SEPTEMBER 4, 2008 221
“Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters
which are within the exclusive province of one of the other branches of the government. Lacking the
judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the
Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive.” (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is
the Ombudsman who has the duty “to investigate any act or omission of any public official, employee, office or
agency when such act or omission appears to be illegal, unjust, improper, or inefficient.” 51 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. The same holds true for our courts upon which
the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the
Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights
of all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot be
deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As
discussed above, the Legislature can still legis-
_______________
51 Article XI, Section 13, par.1 of the Constitution.

222
ANNOTATED
late on graft and corruption even without the information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v.
Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought, and the degree to which
the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does
not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at
present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however,
complaints relating to the NBN Project have already been filed against President Arroyo and other personalities
before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the
allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal
conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to
arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that “technical rules of evi-
_______________
52 487 F. 2d 700.
223
VOL. 564, SEPTEMBER 4, 2008 223
dence applicable to judicial proceedings which do not affect substantive rights need not be observed by the
Committee.” Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a
hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to
the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a
competent court or body.
IV
Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order
because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not
violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules;
and (5) their issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no
reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the “possible needed statute which prompted the need for the inquiry” along with
the “usual indication of the subject of inquiry and the questions relative to and in furtherance thereof” is not
provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements. 224
ANNOTATED
An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses.
Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have
been raised many times. 53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive
to function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly
limit Congress’ power. The legislative inquiry must be confined to permissible areas and thus, prevent the “roving
commissions” referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional
right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also
allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of inquiry. The
logic of these requirements is well articulated in the study conducted by William P. Marshall, 55 to wit:
“A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly
_______________
53 Professor Christopher Schroeder (then with the Clinton Justice Department), for example, labeled some of Congress’s
investigations as no more than “vendetta oversight” or “oversight that seems primarily interested in bringing someone down,
usually someone close to the President or perhaps the President himself.” Theodore Olson (the former Solicitor General in the
Bush Justice Department), in turn, has argued that oversight has been used improperly by Congress to influence decision making
of executive branch officials in a way that undercuts the President’s power to assure that laws are faithfully executed.
(Marshall, The Limits on Congress’ Authority to Investigate the President, Marshall-Illinois.Doc, November 24, 2004.)
54 103 U.S. 168 (1880).
55 Kenan Professor of Law, University of North Carolina.
225
VOL. 564, SEPTEMBER 4, 2008 225

stated purpose. At present, the charters of some congressional committees are so broad that virtually any
matter involving the Executive can be construed to fall within their province. Accordingly, investigations
can proceed without articulation of specific need or purpose. A requirement for a more precise charge in
order to begin an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the extent clear
statements of rules cause legislatures to pause and seriously consider the constitutional implications
of proposed courses of action in other areas, they would serve that goal in the context of
congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to simply
articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens.
Rather, the system must be designed in a manner that imposes actual burdens on the committee to
articulate its need for investigation and allows for meaningful debate about the merits of
proceeding with the investigation.” (Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that should
have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any
pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to “testify on what he knows relative to the subject matter under inquiry.”
Anent the third argument, 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 viola-226
ANNOTATED
tions of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is
enlightening, thus:
“Cases both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules,
in the absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each
House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable relation between the mode or method
of proceeding established by the rule and the result which is sought to be attained.”
In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be
a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that:
“The Committee, by a vote of majority of all its members, may punish for contempt any witness
before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members.” (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because
during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number
could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers
and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National
Defense and Security which has a membership of eighteen (18) Senators. With respect to
_______________
56 G.R. No. 127255, August 14, 1997, 277 SCRA 268.
227
VOL. 564, SEPTEMBER 4, 2008 227
respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3)
members were present.57 These facts prompted us to quote in the Decision the exchanges between Senators Alan
Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to
deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan
stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed
for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt
order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which
was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008
deliberation when the matter was taken up.
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)
All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is shattered.
_______________
57 Transcript of the January 30, 2008 proceedings pp. 5-7.

58 TSN, March 4, 2008, at pp. 529-530.
228
ANNOTATED
Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority?
Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in
which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the
concerns and objections of the members are fully articulated in such proceeding. 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.
Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in
1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish
the Rules, unless the same is repealed or amended.
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. The Rules of the Senate
itself confirms this when it states:
XLIV RULE
UNFINISHED BUSINESS
123. SEC. Unfinished business at the end of the session shall be taken up at the next session in the
same status.229
VOL. 564, SEPTEMBER 4, 2008 229

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress,
but may be taken by the succeeding Congress as if present for the first time.” (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not
in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have a different composition as that of
the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If
the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next
Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its
business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of procedure) states:
LI RULE
AMENDMENTS TO, OR REVISIONS OF, THE RULES
136. SEC. At the start of each session in which the Senators elected in the preceding elections
shall begin their term of office, the President may endorse the Rules to the appropriate committee
for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one day
before its consideration, and the vote of the majority of the Senators present in the session shall be
required for its approval. (emphasis supplied)230

ANNOTATED
RULE LII
DATE OF TAKING EFFECT
SEC. 137.These Rules shall take effect on the date of their adoption and shall remain in force
until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an
election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly
elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of
their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules.
The Rules simply state “(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation.”59 The latter does not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed
that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance
with the duly published rules of procedureis categorical. It is incumbent upon the Senate to publish the rules for
its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.
_______________
59 Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.
231
VOL. 564, SEPTEMBER 4, 2008 231
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted
pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be
considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.
Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or arbitrary.
Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he
be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He
did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent
Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive
official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he
was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the
September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on
Executive Secretary Ermita’s claim of executive privilege, they curtly 232
ANNOTATED
dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling
and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an
ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the
majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each
must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it
is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated
checks and balances among the different branches of government.
In the present case, it is respondent Committees’ contention that their determination on the validity of executive
privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and
deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between
co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court
to wonder: In respondent Committees’ paradigm of checks and balances, what are the checks to the Legislature’s
all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out corruption, even
in233
VOL. 564, SEPTEMBER 4, 2008 233
the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and public
accountability. The recent clamor for a “search for truth” by the general public, the religious community and the
academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the political branches of government. The customary
partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth
or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people
deserve a more exacting “search for truth” than the process here in question, if that is its objective.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED.
SO ORDERED.
G.R. No. 142840. May 7, 2001.*EN BANC.
ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.
Constitutional Law; Citizenship; There are two ways of acquiring citizenship: (1) by birth
and (2) by naturalization; A person who at the time of his birth is a citizen of a particular
country, is a natural-born citizen thereof.—There are two ways of acquiring citizenship: (1) by
birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds
of citizens: the natural-born citizen, and the naturalized citizen.
_____________
*
EN BANC.
546
Bengzon III vs. House of Representatives Electoral Tribunal
A person who at the time of his birth is a citizen of a particular country, is a natural-born
citizen thereof.
Same; Same; Naturalized citizens are those who have become Filipino citizens through
naturalization generally under Commonwealth Act (CA) No. 473.—On the other hand,
naturalized citizens are those who have become Filipino citizens through naturalization,
generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization
Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No.
530. To be naturalized, an applicant has to prove that he possesses all the qualifications and none
of the disqualifications provided by law to become a Filipino citizen.
Same; Same; Modes by Which Philippine Citizenship may be Reacquired by a Former
Citizen.—Filipino citizens who have lost their citizenship may however reacquire the same in the
manner provided by law. Commonwealth Act. No. 63 (CA No. 63), enumerates the three modes
by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2)
by repatriation, and (3) by direct act of Congress.
Same; Same; Same; Repatriation results in the recovery of the original nationality.—
Repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.
Same; Same; Same; A citizen who is not a naturalized Filipino, i.e., did not have to
undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-
born Filipino; As respondent Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino.—
Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent
from the enumeration of who are citizens under the present Constitution that there are only two
classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after
losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as
547
VOL. 357, MAY 7, 2001
Bengson III vs. House of Representatives Electoral Tribunal
to such persons, they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable law for the
reacquisition thereof. As respondent Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such,
he possessed all the necessary qualifications to be elected as member of the House of
Representatives.
Remedial Law; Certiorari; The Court’s jurisdiction over the House of Representatives
Electoral Tribunal (HRET) is merely to check “whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction” on the part of the latter; There is no
showing of grave abuse of discretion in this case.—The HRET has been empowered by the
Constitution to be the “sole judge” of all contests relating to the election, returns, and
qualifications of the members of the House. The Court’s jurisdiction over the HRET is merely to
check “whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction” on the part of the latter. In the absence thereof, there is no occasion for the Court to
exercise its corrective power and annul the decision of the HRET nor to substitute the Court’s
judgment for that of the latter for the simple reason that it is not the office of a petition for
certiorari to inquire into the correctness of the assailed decision. There is no such showing of
grave abuse of discretion in this case.
PANGANIBAN, J., Concurring Opinion:
Constitutional Law; Citizenship; Repatriation is simply the recovery of original
citizenship; It is not a grant of a new citizenship, but a recovery of one’s former or original
citizenship.—Repatriation is simply the recovery of original citizenship. Under Section 1, of RA
2630, a person “who ha[s] lost his citizenship” may “reacquire” it by “taking an oath of
allegiance to the Republic of the Philippines.” Former Senate President Jovito R. Salonga, a
noted authority on the subject, explains this method more precisely in his treatise, Private
International Law. He defines repatriation as “the recovery of the original nationality upon
fulfillment of certain conditions.” Webster buttresses this definition by describing the ordinary or
common usage of repatriate, as “to restore or return to one’s country of origin, allegiance, or
citizenship; x x x.” In relation to our subject matter, repatriation, then, means restoration of
citizenship. It is not a grant of a new citizenship, but a recovery of one’s former or original
citizenship.
548
SANDOVAL-GUTIERREZ, J., Dissenting Opinion:
Constitutional Law; Citizenship; Respondent did not reacquire his natural-born
citizenship; Provision on “natural-born citizen of the Philippines” is precise, clear and definite;
Neither HRET nor the Court can construe it other than what its plain meaning conveys.—
Clearly, he did not reacquire his natural-born citizenship. The cardinal rule in the interpretation
and construction of a constitution is to give effect to the intention of the framers and of the
people who adopted it. Words appearing in a Constitution are used according to their plain,
natural, and usual significance and import and must be understood in the sense most obvious to
the common understanding of the people at the time of its adoption. The provision on “natural-
born citizens of the Philippines” is precise, clear and definite. Indeed, neither HRET nor this
Court can construe it other than what its plain meaning conveys. It is not phrased in general
language which may call for construction of what the words imply.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
Brillantes, Nachura, Navarro, Jumamil, Arcilla, Escolin & Martinez Law
Offices for petitioner.
Romulo B. Macalintal for private respondent.
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the
constitutional requirement that “no person shall be a Member of the House of
Representatives unless he is a natural-born citizen.” 11987 Constitution, Article IV, Section 6.
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San
Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then
applicable was the 1935 Constitution.2Article IV, Section 1 of the 1935 Constitution states:The following are citizens of the Philippines:
___________
1
1987 Constitution, Article IV, Section 6.
2
Article IV, Section 1 of the 1935 Constitution states:
The following are citizens of the Philippines:
549
VOL. 357, MAY 7, 2001
On November 5, 1985, however, respondent Cruz enlisted in the United States Marine
Corps and, without the consent of the Republic of the Philippines, took an oath of
allegiance to the United States. As a consequence, he lost his Filipino citizenship for
under Commonwealth Act No. 63, Section 1(4), a Filipino citizen may lose his
citizenship by, among others, “rendering service to or accepting commission in the
armed forces of a foreign country.” Said provision of law reads:
SECTION 1. How citizenship may be lost.—A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
xxx
(4) By rendering services to, or accepting commission in, the armed forces of a
foreign country: Provided, That the rendering of service to, or the acceptance of such
commission in, the armed forces of a foreign country, and the taking of an oath of
allegiance incident hereto, with the consent of the Republic of the Philippines, shall
not divest a Filipino of his Philippine citizenship if either of the following
circumstances is present:
1. (a) The Republic of the Philippines has a defensive and/or offensive pact of

alliance with said foreign country; or
2. (b) The said foreign country maintains armed forces on Philippine territory
with the consent of the Republic of the Philippines: Provided, That the Filipino
citizen concerned, at the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident thereto, states that he
does so only in connection with his service to said foreign country; And
provided, finally, That any Filipino
______________
1. 1) Those who are citizens of the Philippine Islands at the time of the adoption
of the Constitution;
2. 2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution had been elected to public office in the Philippine
Islands;
3. 3) Those whose fathers are citizens of the Philippines;
4. 4) Those whose mothers are citizens of the Philippines and, upon reaching the
age of majority, elected Philippine citizenship; and
5. 5) Those who are naturalized in accordance with law.
550
1. citizen who is rendering service to, or is commissioned in, the armed forces of
a foreign country under any of the circumstances mentioned in paragraph (a)
or (b), shall not be permitted to participate nor vote in any election of the
Republic of the Philippines during the period of his service to, or commission
in, the armed forces of said country. Upon his discharge from the service of
the said foreign country, he shall be automatically entitled to the full
enjoyment of his civil and political rights as a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was erased
by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service
in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630. 3An Act Providing for Reacquisition of Philippine Citizenship by Persons Who Lost Such Citizenship by
Rendering Service To, or Accepting Commission In, the Armed Forces of the United States (1960).
He ran for and was elected as the
Representative of the Second District of Pangasinan in the May 11, 1998 elections. He
won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III,
who was then running for reelection.
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with
respondent House of Representatives Electoral Tribunal (HRET) claiming that
respondent Cruz was not qualified to become a member of the House of
Representatives since he is not a natural-born citizen as required under Article VI,
Section 6 of the Constitution.4Said provision reads:No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age, able to read and write, and except the party-list...
_______________
3
An Act Providing for Reacquisition of Philippine Citizenship by Persons Who
Lost Such Citizenship by Rendering Service To, or Accepting Commission In, the
Armed Forces of the United States (1960).
4
Said provision reads:
No person shall be a member of the House of Representatives unless he is a natural-
born citizen of the Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.
551
VOL. 357, MAY 7, 2001
On March 2, 2000, the HRET rendered its decision 5Rollo, p. 36. dismissing the petition
for quo warranto and declaring respondent Cruz the duly elected Representative of
the Second District of Pangasinan in the May 1998 elections. The HRET likewise
denied petitioner’s motion for reconsideration of the decision in its resolution dated
April 27, 2000.6Id., at 69.
Petitioner thus filed the present petition for certiorari assailing the HRETs decision
on the following grounds:
1. 1. The HRET committed serious errors and grave abuse of discretion,

amounting to excess of jurisdiction, when it ruled that private respondent is a
natural-born citizen of the Philippines despite the fact that he had ceased
being such in view of the loss and renunciation of such citizenship on his part.
2. 2. The HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it considered private respondent as
a citizen of the Philippines despite the fact that he did not validly acquire his
Philippine citizenship.
3. 3. Assuming that private respondent’s acquisition of Philippine citizenship was
invalid, the HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it dismissed the petition despite the
fact that such reacquisition could not legally and constitutionally restore his
natural-born status.7Id., at 13.
The issue now before us is whether respondent Cruz, a natural-born Filipino who
became an American citizen, can still be considered a natural-born Filipino upon his
reacquisition of Philippine citizenship.
Petitioner asserts that respondent Cruz may no longer be considered a natural-born
Filipino since he lost his Philippine citizenship when he swore allegiance to the
United States in 1995, and had to reacquire the same by repatriation. He insists that
Article IV, Section 2 of the Constitution expressly states that natural-born citizens are
those who are citizens from birth without having to perform any act to acquire or
perfect such citizenship.
_____________
5
Rollo, p. 36.
6
Id., at 69.
7
Id., at 13.
552
Respondent on the other hand contends that he reacquired his status as a natural-born
citizen when he was repatriated since the phrase “from birth” in Article IV, Section 2
refers to the innate, inherent and inborn characteristic of being a natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follows:
1. (1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
2. (2) Those whose fathers or mothers are citizens of the Philippines;
3. (3) Those born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority, and
4. (4) Those who are naturalized in accordance with law.8Article IV, Section 1.
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization.
These ways of acquiring citizenship correspond to the two kinds of citizens: the
natural-born citizen, and the naturalized citizen. A person who at the time of his birth
is a citizen of a particular country, is a natural-born citizen thereof. 9I TOLENTINO, COMMENTARIES AND
JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 188, 1990 Ed.
As defined in the same Constitution, natural-born citizens “are those citizens of the
Philippines from birth without having to perform any act to acquire or perfect his
Philippine citizenship.”101987 Constitution, Article IV, Section 2.
On the other hand, naturalized citizens are those who have become Filipino citizens
through naturalization, generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which repealed the former Naturalization
Law (Act No. 2927), and by Republic Act No. 530. 11During the period under Martial Law declared by President Ferdinand E. Marcos,
thousands of aliens were naturalized by Presidential Decree where the screening of the applicants was undertaken by special committee under Letter of Instructions No. 270, dated...
To be
naturalized, an
_______________
8
Article IV, Section 1.
9
I TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL
CODE OF THE PHILIPPINES 188, 1990 Ed.
10
1987 Constitution, Article IV, Section 2.
11
During the period under Martial Law declared by President Ferdinand E. Marcos,
thousands of aliens were naturalized by Presidential Decree where the screening of the
applicants was undertaken by special committee under Letter of Instructions No. 270,
dated April 11, 1975, as amended.
553
VOL. 357, MAY 7, 2001
applicant has to prove that he possesses all the qualifications 12Section 2, Act 473 provides the following qualifications:(a)
He must be not less than 21 years of age on the day of the hearing of the petition;(b) He must have resided in the Philippines for a continuous period of not less than ten years;(c) He must be of...
and
none of the disqualifications 13Section 4, Act 473, provides the following disqualifications:(a) He must not be opposed to organized government or affiliated with any
association or group of persons who uphold and teach doctrines opposing all organized governments;(b) He must not be defe...
provided by law to become a
Filipino
_______________
12
Section 2, Act 473 provides the following qualifications:
1. (a) He must be not less than 21 years of age on the day of the hearing of the
petition;
2. (b) He must have resided in the Philippines for a continuous period of not less
than ten years;
3. (c) He must be of good moral character and believes in the principle
underlying the Philippine Constitution, and must have conducted himself in a
proper and irreproachable manner during the entire period of his residence in
the Philippines in his relation with the constituted government and as well as
with the community in which he is living;
4. (d) He must own real estate in the Philippines worth not less than five
thousand pesos, Philippine currency, or must have some known lucrative
trade, profession, or lawful occupation;
5. (e) He must be able to speak and write English or Spanish and any of the
principal languages; and
6. (f) He must have enrolled his minor children of school age, in any of the public
schools or private schools recognized by the Bureau of Private Schools of the
Philippines where Philippine history, government and civic are taught or
prescribed as part of the school curriculum, during the entire period of the
residence in the Philippines required of him prior to the hearing of his petition
for naturalization as Philippine citizen.
13
Section 4, Act 473, provides the following disqualifications:
1. (a) He must not be opposed to organized government or affiliated with any

association or group of persons who uphold and teach doctrines opposing all
organized governments;
2. (b) He must not be defending or teaching the necessity or propriety of
violence, personal assault, or assassination for the success and predominance
of their ideas;
3. (c) He must not be a polygamist or believer in the practice of polygamy;
4. (d) He must not have been convicted of any crime involving moral turpitude;
5. (e) He must not be suffering from mental alienation or incurable contagious
diseases;
554
citizen. The decision granting Philippine citizenship becomes executory only after two
(2) years from its promulgation when the court is satisfied that during the intervening
period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a
lawful calling or profession; (3) has not been convicted of any offense or violation of
Government promulgated rules; or (4) committed any act prejudicial to the interest of
the nation or contrary to any Government announced policies. 14Section 1, R.A. 530.
Filipino citizens who have lost their citizenship may however reacquire the same in
the manner provided by law. Commonwealth Act. No. 63 (CA No. 63), enumerates
the three modes by which Philippine citizenship may be reacquired by a former
citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 15Section
2, CA. No. 63.
Naturalization is a mode for both acquisition and reacquisition of Philippine

citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63.16An Act Providing for the Ways in Which Philippine Citizenship May Be Lost or Reacquired (1936). Under this law,
a former Filipino citizen who wishes to reacquire Philippine citizenship must possess
certain
____________
1. (f) He must have, during the period of his residence in the Philippines (of not
less than six months before filing his application), mingled socially with the
Filipinos, or who have not evinced a sincere desire to learn and embrace the
customs, traditions and ideals of the Filipinos;
2. (g) He must not be a citizen or subject of a nation with whom the Philippines is
at war, during the period of such war;
3. (h) He must not be a citizen or subject of a foreign country whose laws do not
grant Filipinos the right to become naturalized citizens or subjects thereof.
14
Section 1, R.A. 530.
15
Section 2, CA. No. 63.
16
An Act Providing for the Ways in Which Philippine Citizenship May Be Lost or
Reacquired (1936).
555
VOL. 357, MAY 7, 2001
qualifications171. The applicant must have lost his original Philippine citizenship by naturalization in a foreign country or by express renunciation of his citizenship (Sec. 1[1] and [2], CA. No.
63);2. He must be at least twenty-one years of age and shall have resided i...
and none of the disqualifications mentioned in Section
4 of CA. 473. 18See Note 13.
Repatriation, on the other hand, may be had under various statutes by those who
lost their citizenship due to: (1) desertion of the armed forces; 19Sec. 4, CA. No. 63. (2) service in
the armed forces of the allied forces in World War II; 20Sec. 1, Republic Act No. 965 (1953). (3) service in
the Armed Forces of the United States at any other time; 21Sec. 1, Republic Act No. 2630 (1960). (4) marriage
of a Filipino woman to an alien; 22Sec. 1, Republic Act No. 8171 (1995). and (5) political and economic
necessity.23Ibid.
As distinguished from the lengthy process of naturalization, repatriation simply
consists of the taking of an oath of allegiance to the Republic of the Philippines and
registering said oath in the Local Civil Registry of the place where the person
concerned resides or last resided.
In Angat v. Republic,24314 SCRA 438 (1999). we held:
_________________
17
1. The applicant must have lost his original Philippine citizenship by
naturalization in a foreign country or by express renunciation of his citizenship (Sec.
1[1] and [2], CA. No. 63);
1. 2. He must be at least twenty-one years of age and shall have resided in the
Philippines at least six months before he applies for naturalization (Sec. 3[1],
CA. No. 63);
2. 3. He must have conducted himself in a proper and irreproachable manner
during the entire period of his residence (of at least six months prior to the
filing of the application) in the Philippines, in his relations with the constituted
government as well as with the community in which he is living (Sec. 3[2], CA.
No. 63);
3. 4. He subscribes to an oath declaring his intention to renounce absolutely and
perpetually all faith and allegiance to the foreign authority, state or
sovereignty of which he was a citizen or subject (Sec. [3], CA. No. 63).
18
See Note 13.
19
Sec. 4, CA. No. 63.
20
Sec. 1, Republic Act No. 965 (1953).
21
22
23
Ibid.
24
314 SCRA 438 (1999).
556
x x x. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine citizenship would not even be required to file a
petition in court, and all that he had to do was to take an oath of allegiance to the
Republic of the Philippines and to register that fact with the civil registry in the place
of his residence or where he had last resided in the Philippines. [Italics in the
original.]25Id., at 450.
Moreover, repatriation results in the recovery of the original nationality. 26JOVITO R. SALONGA,
PRIVATE INTERNATIONAL LAW, P. 165 (1995).
This means that a naturalized Filipino who lost his citizenship
will be restored to his prior status as a naturalized Filipino citizen. On the other hand,
if he was originally a naturalborn citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
In respondent Cruz’s case, he lost his Filipino citizenship when he rendered service
in the Armed Forces of the United States. However, he subsequently reacquired
Philippine citizenship under RA. No. 2630, which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service to,
or accepting commission in, the Armed Forces of the United States, or after separation
from the Armed Forces of the United States, acquired United States citizenship, may
reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the
Philippines and registering the same with Local Civil Registry in the place where he
resides or last resided in the Philippines. The said oath of allegiance shall contain a
renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in accordance
with the aforecited provision, respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status which he acquired at birth as the son
of a Filipino father.27See Art. IV, Sec 1, 1935 Constitution. It bears stressing that the act of repatriation
allows him to recover, or return to, his original status before he lost his Philippine
citizenship.
____________
25
Id., at 450.
26
JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW, P. 165 (1995).
27
See Art. IV, Sec 1, 1935 Constitution.
557
VOL. 357, MAY 7, 2001
Petitioner’s contention that respondent Cruz is no longer a natural-born citizen since
he had to perform an act to regain his citizenship is untenable. As correctly explained
by the HRET in its decision, the term “natural-born citizen” was first defined in
Article III, Section 4, of the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered as such: (1) a person must
be a Filipino citizen from birth and (2) he does not have to perform any act to obtain
or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino
citizens which were not considered natural-born: (1) those who were naturalized and
(2) those born before January 17, 1973,28The date of effectivity of the 1973 Constitution. of Filipino mothers who,
upon reaching the age of majority, elected Philippine citizenship. Those “naturalized
citizens” were not considered natural-born obviously because they were not Filipinos
at birth and had to perform an act to acquire Philippine citizenship. Those born of
Filipino mothers before the effectivity of the 1973 Constitution were likewise not
considered natural-born because they also had to perform an act to perfect their
The present Constitution, however, now considers those born of Filipino mothers
before the effectivity of the 1973 Constitution and who elected Philippine citizenship
upon reaching the majority age as natural-born. After defining who are natural-born
citizens, Section 2 of Article IV adds a sentence: “Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed
natural-born citizens.” Consequently, only naturalized Filipinos are considered not
natural-born citizens. It is apparent from the enumeration of who are citizens under
the present Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with
______________
28
The date of effectivity of the 1973 Constitution.
558
law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category for
persons who, after losing Philippine citizenship, subsequently reacquire it. The reason
therefor is clear: as to such persons, they would either be natural-born or naturalized
depending on the reasons for the loss of their citizenship and the mode prescribed by
the applicable law for the reacquisition thereof. As respondent Cruz was not required
by law to go through naturalization proceedings in order to reacquire his citizenship,
he is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.
A final point. The HRET has been empowered by the Constitution to be the “sole
judge” of all contests relating to the election, returns, and qualifications of the
members of the House.29Article VI, Section 17 of the 1987 Constitution provides thus:Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of ...
The Court’s jurisdiction over the HRET
is merely to check “whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction” on the part of the latter. 30Garcia vs. House of Representatives
Electoral Tribunal, 312 SCRA 353, 364 (1999).
In the absence thereof, there is no occasion for the Court to
exercise its corrective power and annul the decision of the HRET nor to substitute the
Court’s judgment for that of the latter for the simple reason that it is not the office of a
petition for certiorari to inquire into the cor-
______________
29
Article VI, Section 17 of the 1987 Constitution provides thus:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns,
and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to
be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
30
Garcia vs. House of Representatives Electoral Tribunal, 312 SCRA 353, 364
(1999).
559
VOL. 357, MAY 7, 2001
rectness of the assailed decision. 31Id. There is no such showing of grave abuse of
discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.
Davide, Jr. (C.J.), Bellosillo and Puno, JJ., concur.
Melo, J., No part. Chairman of the HRET which rendered the decision under
review.
Vitug, J., No part—A member of the HRET which rendered the appealed
judgment.
Mendoza, J., No part, being ponente of decision under review.
Panganiban, J., Please see Concurring Opinion.
Quisumbing, Buena and De Leon, Jr., JJ., On leave.
Pardo, J., Concur on this and the concurring opinion of J. Panganiban.
Gonzaga-Reyes, J., I also join concurring opinion of J. Panganiban.
Ynares-Santiago, J., I hereby certify that J. Santiago favors with the majority
opinion of J. Kapunan.
Sandoval-Gutierrez, J., I dissent. Please see my Dissenting Opinion.
CONCURRING OPINION
PANGANIBAN, J.:
I concur in the ponencia of Mr. Justice Santiago M. Kapunan, holding that the House
Electoral Tribunal did not gravely abuse its discretion in ruling that Private
Respondent Teodoro C. Cruz remains a natural-born Filipino citizen and is eligible to
continue being a member of Congress. Let me just add a few points.
______________
31
Id.
560
Bengson III vs. House of Representatives Electoral Tribuna
The Facts in Brief
It is undisputed that Congressman Cruz was born on April 27, 1960 in San Clemente,
Tarlac, to Filipino parents. He was, therefore, a Filipino citizen, pursuant to Section 1
(2),1“Section 1. The following are citizens of the Philippines:(2) Those whose fathers or mothers are citizens of the Philippines;x x x x x x x x x...Article IV of the
Constitution. Furthermore, not having done any act to acquire or perfect the
Philippine citizenship he obtained from birth, he was a natural-born Filipino citizen,
in accordance with Section 2 2”Sec 2. Natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect their Philippine
citizenship, x x x....
of the same Article IV.
It is not disputed either that private respondent rendered military service to the
United States Marine Corps from November 1985 to October 1993. On June 5, 1990,
he was naturalized as an American citizen, in connection with his US military service.
Consequently, under Section 1 (4)3”Section 1. How citizenship may be lost.—A Filipino citizen may lose his citizenship in any of the following ways and/or
events:x x x x x x x x x”(4) By rendering services to, or...
of CA No. 63, he lost his Philippine citizenship.
Upon his discharge from the US Marine Corps, private respondent returned to the
Philippines and decided to regain his Filipino citizenship. Thus, on March 17, 1994,
availing himself of the benefits of Republic Act (RA) No. 2630, entitled “An Act
Providing for Reacquisition of Philippine Citizenship by Persons Who Lost Such by
Rendering Service to, or Accepting Commission in, the Armed Forces of the United
States,”4Sec 1 thereof provides:“Sec 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Cruz took his
oath of allegiance to
_________________
1
“Section 1. The following are citizens of the Philippines:
(2) Those whose fathers or mothers are citizens of the Philippines;
x x x x x x x x x”
2
”Sec 2. Natural-born citizens are those who are citizens from birth without having
to perform any act to acquire or perfect their Philippine citizenship, x x x.”
3
”Section 1. How citizenship may be lost.—A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
x x x x x x x x x”
(4) By rendering services to, or accepting commission in, the armed forces of a
foreign country: x x x.”
4
Sec 1 thereof provides:
“Sec 1. Any person who had lost his Philippine citizenship by rendering service to, or
accepting commission in, the Armed
561
VOL. 357, MAY 7, 2001
the Republic and registered the same with the Local Civil Registry of Mangatarem,
Pangasinan. On the same day, he also executed an Affidavit of Reacquisition of
Philippine Citizenship.
Main Issue
The main question here is: Did the House of Representatives Electoral Tribunal
(HRET) commit grave abuse of discretion in holding that, by reason of his
repatriation, Congressman Teodoro C. Cruz had reverted to his original status as a
natural-born citizen? I respectfully submit that the answer is “No.” In fact, I believe
that the HRET was correct in its ruling.
1. Repatriation Is Recovery of Original Citizenship
First, repatriation is simply the recovery of original citizenship. Under Section 1, of
RA 2630, a person “who ha[s] lost his citizenship” may “reacquire” it by “taking an
oath of allegiance to the Republic of the Philippines.” Former Senate President Jovito
R. Salonga, a noted authority on the subject, explains this method more precisely in
his treatise, Private International Law.51995 ed. He defines repatriation as “the recovery of
the original nationality upon fulfillment of certain conditions.” 6Ibid., p. 165; cited in the assailed HRET Decision, p. 13.
(Italics ours.)
Webster buttresses this definition by describing the ordinary or common usage
of repatriate, as “to restore or return to one’s country of origin, allegiance, or
citizenship; x x x.”7Webster’s Third New International Dictionary: Unabridged, 1993 ed. In relation to our subject
matter, repatriation,
_______________
Forces of the United States, or after separation from the Armed Forces of the United
States, acquired U.S. citizenship, may reacquire Philippine citizenship by taking an
oath of allegiance to the Republic of the Philippines and registering the same with the
Local Civil Registry in the place where he resides or last resided in the Philippines.
The said oath of allegiance shall contain a renunciation of any other citizenship.”
5
1995 ed.
6
Ibid., p. 165; cited in the assailed HRET Decision, p. 13. (Italics ours.)
7
Webster’s Third New International Dictionary: Unabridged, 1993 ed.
562
then, means restoration of citizenship. It is not a grant of a new citizenship, but a
recovery of one’s former or original citizenship.
To “reacquire” simply means “to get back as one’s own again.” 8Webster’s, ibid., defines reacquire as “to
acquire again”; and acquire as “to get as one’s own....
Ergo,since Cruz, prior to his becoming a US citizen, was a
natural-born Filipino citizen, he “reacquired” the same status upon repatriation. To
rule, otherwise—that Cruz became a non-natural-born citizen—would not be
consistent with the legal and ordinary meaning of repatriation. It would be akin to
naturalization, which is the acquisition of a new citizenship. “New,” because it is not
the same as that with which he has previously been endowed.
In any case, “the leaning, in questions of citizenship, should always be in favor of
[its] claimant x x x.”9Roa v. Collector of Customs, 23 Phil. 315, 338 (1912), per Trent, J.; citing Boyd v. Thayer, 143 US 135. Accordingly, the
same should be construed in favor of private respondent, who claims to be a natural-
born citizen.
2. Not Being Naturalized, Respondent Is Natural-Born
Second, under the present Constitution, private respondent should be deemed natural-
born, because was not naturalized. Let me explain.
There a generally two classes of citizens: (1) natural-born citizens and (2)
naturalized citizens.10Ronaldo P. Ledesma, An Outline of Philippine Immigration and Citizenship Laws, 1999 ed., p. 354. See also 14 CJS §1, 1128; 3A Am Jur 2d Aliens and
Citizens, §1411.
While CA 63 provides that citizenship may also be acquired by direct act of
the Legislature, I believe that those who do become citizens through such procedure
would properly fall under the second category (naturalized).” 11See Ledesma, ibid., p. 355.
Naturalized citizens are former aliens or foreigners who had to undergo a rigid
procedure, in which they had to adduce sufficient evidence to prove that they
possessed all the qualifications and
_____________
8
Webster’s, ibid., defines reacquire as “to acquire again”; and acquire as “to get as
one’s own.”
9
Roa v. Collector of Customs, 23 Phil. 315, 338 (1912), per Trent, J.; citing Boyd
v. Thayer, 143 US 135.
10
Ronaldo P. Ledesma, An Outline of Philippine Immigration and Citizenship
Laws, 1999 ed., p. 354. See also 14 CJS §1, 1128; 3A Am Jur 2d Aliens and Citizens,
§1411.
11
See Ledesma, ibid., p. 355.
563
VOL. 357, MAY 7, 2001
none of the disqualifications provided by law in order to become Filipino citizens. In
contrast, as stated in the early case Roa v. Collector of Customs,12Supra. a natural-born
citizen is a citizen “who has become such at the moment of his birth.”
The assailed HRET Decision, penned by Mr. Justice Vicente V. Mendoza, explains
clearly who are considered natural-born Filipino citizens. He traces the concept as
first defined in Article III of the 1973 Constitution, which simply provided as follows:
“Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.”
Under the above definition, there are two requisites in order that a Filipino citizen
may be considered “natural-born”: (1) one must be a citizen of the Philippines from
birth, and (2) one does not have to do anything to acquire or perfect one’s Philippine
citizenship.13Assailed Decision, p. 8. Thus, under the 1973 Constitution, excluded from the class of
“natural-born citizens” were (1) those who were naturalized and (2) those born before
January 17, 1973, of Filipino mothers who, upon reaching the age of majority, elected
Philippine citizenship.14Ibid.
The present Constitution, however, has expanded the scope of natural-born citizens
to include “[t]hose who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof,” meaning those covered under class (2) above. Consequently, only
naturalized Filipino citizens are not considered natural-born citizens. Premising
therefrom, respondent—being clearly and concededly not naturalized—is, therefore, a
natural-born citizen of the Philippines.15Ibid., p. 9.
With respect to repatriates, since the Constitution does not classify them separately,
they naturally reacquire their original classification before the loss of their Philippine
citizenship. In the case of Congressman Teodoro C. Cruz, upon his repatriation in
1994, he
_____________
12
Supra.
13
Assailed Decision, p. 8.
14
Ibid.
15
Ibid., p. 9.
564
reacquired his lost citizenship. In other words, he regained his original status as a
natural-born Filipino citizen, nothing less.
3. No Grave Abuse of Discretion on the Part of HRET
Third, the HRET did not abuse, much less gravely abuse, its discretion in holding that
Respondent Cruz is a natural-born Filipino citizen who is qualified to be a member of
Congress. I stress that the Court, in this certiorari proceeding before us, is limited to
determining whether the HRET committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing its assailed Decision. The Court has no power
to reverse or modify HRET’s rulings, simply because it differs in its perception of
controversies. It cannot substitute its discretion for that of HRET, an independent,
constitutional body with its own specific mandate.
The Constitution explicitly states that the respective Electoral Tribunals of the two
chambers of Congress “shall be the sole judges of all contests relating to the election,
returns, and qualifications of their respective, members.”16Sec 17, Art. VI. (Emphasis ours.) In several
cases,17Lazatin v. HRET, 168 SCRA 391, December 8, 1988; Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, July 30, 1991; citing Angara v. Electoral Commission, 63 Phil.
139 (1936).
this Court has held that the power and the jurisdiction of the Electoral Tribunals
are original and exclusive, as if they remained in the legislature, a coequal branch of
government. Their judgments are beyond judicial interference, unless rendered
without or in excess of their jurisdiction or with grave abuse of discretion. 18Co v. HRET, ibid., citing
Robles v. HRET, 181 SCRA 780, February 5, 1990; and Morrero v. Bocar, 66 Phil. 429 (1938). See also Libanan v HRET, 283 SCRA 520, December 22, 1997.
In the elegant words
of Mr. Justice Hugo E. Gutierrez, Jr.: 19Co v. HRET, ibid.
“The Court does not venture into the perilous area of trying to correct perceived errors
of independent branches of the Government. It comes in only when it has to vindicate
a denial of due process or correct an abuse
_____________
16
Sec 17, Art. VI. (Emphasis ours.)
17
Lazatin v. HRET, 168 SCRA 391, December 8, 1988; Co v. Electoral Tribunal of
the House of Representatives, 199 SCRA 692, July 30, 1991; citing Angara v.
Electoral Commission, 63 Phil. 139 (1936).
18
Co v. HRET, ibid., citing Robles v. HRET, 181 SCRA 780, February 5, 1990;
and Morrero v. Bocar, 66 Phil. 429 (1938). See also Libanan v HRET, 283 SCRA
520, December 22, 1997.
19
Co v. HRET, ibid.
565
VOL. 357, MAY 7, 2001
of discretion so grave or glaring that no less than the Constitution calls for remedial
action.”
True, there is no settled judicial doctrine on the exact effect of repatriation. But, as
earlier explained, the legal and common definition of repatriation is the reacquisition
of the former citizenship. How then can the HRET be rebuked with grave abuse of
discretion? At best, I can concede that the legal definition is not judicially settled or is
even doubtful. But an interpretation made in good faith and grounded on reason one
way or the other cannot be the source of grave abuse amounting to lack or excess of
jurisdiction. The HRET did not violate the Constitution or the law or any settled
judicial doctrine. It was definitely acting within its exclusive domain.
Be it remembered that our Constitution vests upon the HRET the power to be
the sole judge of the qualifications of members of the House of Representatives, one
of which is citizenship. Absent any clear showing of a manifest violation of the
Constitution or the law or any judicial decision, this Court cannot impute grave abuse
of discretion to the HRET in the latter’s actions on matters over which full
discretionary authority is lodged upon it by our fundamental law. 20Santiago v. Guingona, Jr., 298 SCRA 756,
November 18, 1998.
Even assuming that we disagree with the conclusions of public respondent,
we cannot ipso facto attribute to it “grave abuse of discretion.” Verily, there is a line
between perceived error and grave abuse.21Ibid.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. “It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law.” 22Tañada v. Angara, 272 SCRA 18, May
2, 1997, per Panganiban, J.
____________
20
Santiago v. Guingona, Jr., 298 SCRA 756, November 18, 1998.
21
Ibid.
22
Tañada v. Angara, 272 SCRA 18, May 2, 1997, per Panganiban, J.
566
That the HRET, after careful deliberation and purposeful study, voted 7 to 2 to issue
its Decision upholding the qualifications of Congressman Cruz could not in any wise
be condemned as gravely abusive. Neither can I find any “patent or gross”
arbitrariness or despotism “by reason of passion or hostility” in such exercise.
4. In Case of Doubt, Popular Will Prevails
Fourth, the Court has a solemn duty to uphold the clear and unmistakable mandate of
the people. It cannot supplant the sovereign will of the Second District of Pangasinan
with fractured legalism. The people of the District have clearly spoken. They
overwhelmingly and unequivocally voted for private respondent to represent them in
the House of Representatives. The votes that Cruz garnered (80,119) in the last
elections were much more than those of all his opponents combined (66,182).23”The following
In such instances, all possible doubts should be resolved in favor of the
were the results of the election:
winning candidate’s eligibility; to rule otherwise would be to defeat the will of the
people.24Sinaca v. Mula, 315 SCRA 266, September 27, 1999.
Well-entrenched in our jurisprudence is the doctrine that in case of doubt, political
laws must be so construed as to give life and spirit to the popular mandate freely
expressed through the ballot.25Frivaldo v. Comelec, 257 SCRA 727, June 28, 1996; per Panganiban, J.
Public interest and the sovereign will should, at all times, be the paramount
considerations in election controversies. 26Olondriz v. Comelec, 313 SCRA 128, August 25, 1999. For it would
_____________
23
”The following were the results of the election:
Teodoro C. Cruz 8
Antonio E. Bengson III 5
Alberto B. Zamuco 1
Manuel R. Castro
Mariano A. Padlan
(HRET Decision, pp. 2-3; rollo, pp. 37-38.)
24
Sinaca v. Mula, 315 SCRA 266, September 27, 1999.
25
Frivaldo v. Comelec, 257 SCRA 727, June 28, 1996; per Panganiban, J.
26
Olondriz v. Comelec, 313 SCRA 128, August 25, 1999.
567
VOL. 357, MAY 7, 2001
be better to err in favor of the people’s choice than to be right in complex but little
understood legalisms.27Frivaldo v. Comelec, supra.
“Indeed, this Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular electoral choice, this Court must
exert utmost effort to resolve the issues in a manner that would give effect to the will
of the majority, for it is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority. To successfully challenge a
winning candidate’s qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so zealously protect and
promote.”28Ibid.
5. Current Trend Towards Globalization
Fifth, the current trend, economically as well as politically, is towards
globalization.29See Pacifico A. Agabin, “Globalization and the Judicial Function,” Odyssey and Legacy: The Chief Justice Andres R. Narvasa Centennial Lecture Series, complied and edited
by Atty. Antonio M. Elicano, published by the Supreme Court Printing Servi...
Protectionist barriers are being dismantled. Whereas,
in the past, governments frowned upon the opening of their doors to aliens who
wanted to enjoy the same privileges as their citizens, the current era is adopting a
more liberal perspective. No longer are applicants for citizenship eyed with the
suspicion that they merely want to exploit local resources for themselves. They are
now being considered potential sources of developmental skills, know-how and
capital.
_____________
27
Frivaldo v. Comelec, supra.
28
Ibid.
29
See Pacifico A. Agabin, “Globalization and the Judicial Function,” Odyssey and
Legacy: The Chief Justice Andres R. Narvasa Centennial Lecture Series, complied
and edited by Atty. Antonio M. Elicano, published by the Supreme Court Printing
Services, 1998 ed. See also Artemio V. Panganiban, Old Doctrines and New
Paradigms,” a lecture delivered during the Supreme Court Centenary Lecture Series
on February 13, 2001.
568
More so should our government open its doors to former Filipinos, like Congressman
Cruz, who want to rejoin the Filipino community as citizens again. They are not
“aliens” in the true sense of the law. They are actually Filipinos by blood, by origin
and by culture, who want to reacquire their former citizenship.
It cannot be denied that most Filipinos go abroad and apply for naturalization in
foreign countries, because of the great economic or social opportunities there. Hence,
we should welcome former Filipino citizen desirous of not simply returning to the
country or regaining Philippine citizenship, but of serving the Filipino people as well.
One of these admirable Filipinos is private respondent who, in only a year after being
absent from the Philippines for about eight (8) years, was already voted municipal
mayor of Mangatarem, Pangasinan. And after serving as such for just one term, he
was overwhelmingly chosen by the people to be their representative in Congress.
I reiterate, the people have spoken. Let not a restrictive and parochial interpretation
of the law bar the sovereign will. Let not grave abuse be imputed on the legitimate
exercise of HRET’s prerogatives.
WHEREFORE, I vote to DISMISS the petition.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
With due respect, I disagree with the ponencia of Justice Santiago M. Kapunan. I am
convinced that private respondent Teodoro C. Cruz is not a natural-born citizen and,
therefore, must be disqualified as a member of Congress.
Who are natural-born citizens?
The laws on citizenship—its acquisition or loss, and the rights, privileges, and
immunities of citizens—have given rise to some of the most disputatious and visceral
issues resolved by this Court. The problem is compounded in this petition because
citizenship is taken up in connection with the sovereign right of voters to choose their
representatives in Congress.
569
VOL. 357, MAY 7, 2001
In this petition for certiorari, petitioner Antonio Bengson III asks this Court to deny
respondent Teodoro Cruz the right to hold the Office of Representative of the Second
District of Pangasinan because he does not possess the constitutional requirement of
being a natural-born citizen of this country. Respondent, on the other hand, insists that
he is qualified to be elected to Congress considering that by repatriation, he reacquired
his status as a natural-born Filipino citizen.
Records show that Teodoro Cruz was born in the Philippines on April 27, 1960 to
Filipino parents, spouses Lamberto and Carmelita Cruz. On November 5, 1985, he
enlisted in the United States Armed Forces and served the United States Marine
Corps. While in the service for almost five years, he applied for naturalization with
the US District Court of Northern District of California and was issued his Certificate
of Naturalization No. 14556793 as an American citizen. On October 27, 1993, he was
honorably discharged from the US Marine Corps. He then decided to return to the
Philippines.
Cruz availed of repatriation under R.A. No. 2630, an act providing for reacquisition
of Philippine citizenship by persons who lost such citizenship by rendering service to
or accepting commission in the Armed Forces of the United States. On March 17,
1994, he took his oath of allegiance to the Republic of the Philippines. The oath was
registered with the Local Civil Registry of Mangatarem, Pangasinan. On the same
date, he executed an Affidavit of Reacquisition of Philippine Citizenship. Thus, on
April 11, 1994, the Bureau of Immigration and Deportation ordered the cancellation
of his Alien Certificate of Registration (ACR No. B-04628111) and Immigration
Certificate of Residence (ICR No. 286582) and issued him an Identification
Certificate.
The cancellation of his ACR and ICR was affirmed by the Justice Department. On
January 18, 1995, the United States Embassy Manila issued to him a Certificate of
Loss of Nationality of the United States.
In the local elections of 1995, Cruz filed his certificate of candidacy for mayor of
Mangatarem, Pangasinan, declaring himself to be a naturalized Filipino citizen. He
won and served as mayor for one term.
570
Thereafter, Cruz filed his certificate of candidacy for a seat in Congress, this time
declaring himself as a natural-born Filipino. Again, he won with a lead of 26,671
votes over candidate Antonio Bengson, III.
On September 3, 1998, Cruz was proclaimed winner in the congressional race in
the Second District of Pangasinan.
Bengson then filed a petition for Quo Warranto Ad Cautelam with the House of
Representatives Electoral Tribunal (HRET) on September 14, 1998, claiming that
Cruz, not being a natural-born Filipino citizen when he filed his Certificate of
Candidacy on March 15, 1998, is not qualified to run as a member of the House of
Representatives. That he should be a natural-born citizen is a qualification mandated
by Section 6, Article VI of the Constitution which provides: “No person shall be a
member of the House of Representatives unless he is a natural-born citizen of the
Philippines.”
After oral arguments and the submission by the parties of their respective
memoranda and supplemental memoranda, the HRET rendered a decision holding that
Cruz reacquired his natural-born citizenship upon his repatriation in 1994 and
declaring him duly elected representative of the Second District of Pangasinan in the
May 11, 1998 elections, thus:
‘WHEREFORE, the petition for quo warranto is DISMISSED and Respondent
Teodoro C. Cruz is hereby DECLARED duly elected Representative of the Second
District of Pangasinan in the May 11, 1998 elections.
“As soon as this Decision becomes final and executory, let notices and copies
thereof be sent to the President of the Philippines; the House of Representatives,
through the Speaker, and the Commission on Audit, through its Chairman, pursuant to
Rule 76 of the 1998 Rules of the House of Representatives Electoral Tribunal.
Costs de oficio.”
On March 13, 2000, Bengson filed a motion for reconsideration of the said Decision
but the same was denied by the HRET in Resolution No. 00-48.
Bengson now comes to us via a petition for certiorari assailing the HRET Decision
on grounds that:
571
VOL. 357, MAY 7, 2001
1. “1. The HRET committed serious errors and grave abuse of discretion,

amounting to excess of jurisdiction, when it ruled that private respondent is a
natural-born citizen of the Philippines despite the fact that he had ceased
being such in view of the loss and renunciation of such citizenship on his part.
2. “2. The HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it considered private respondent as
a citizen of the Philippines despite the fact that he did not validly acquire his;
3. “3. Assuming that private respondent’s acquisition of Philippine citizenship
was invalid, the HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it dismissed that, petition despite
the fact that such reacquisition could not legally and constitutionally restore
his natural-born status.”
The sole issue raised in this petition is whether or not respondent Cruz was a natural-
born citizen of the Philippines at the time of the filing of his Certificate of Candidacy
for a seat in the House of Representatives.
Section 2, Article IV of the Constitution 11987 Constitution of the Republic of the Philippines. provides:
“Sec 2. Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship, x
x x.”
Petitioner and respondent present opposing interpretations of the phrase “from birth”
contained in the above provisions.
Petitioner contends that the phrase “from birth” indicates that citizenship must start
at a definite point and must be continuous, constant and without interruption. The
Constitution does not extend the privilege of reacquiring a natural-born citizen status
to respondent, who at one time, became an alien. His loss of citizenship carried with it
the concomitant loss of all the benefits, privileges and attributes of “natural-born”
citizenship. When he reacquired his citizenship in 1994, he had to comply with the
requirements for repatriation, thus effectively taking him out of the constitutional
definition of a natural-born Filipino.
_____________
1
1987 Constitution of the Republic of the Philippines.
572
For his part, respondent maintains that the phrase “from birth” refers to the innate,
inherent and inborn characteristic of being a “natural-born.” Since he was born to
Filipino parents, he has been a natural-born Filipino from birth. His reacquisition of
Philippine citizenship under Republic Act No. 2630 results in his reacquisition of his
inherent characteristic of being a natural-born citizen.
The state of being a natural-born citizen has been regarded, not so much in its
literal sense, but more in its legal connotation.
The very first natural-born Filipinos did not acquire that status at birth. They were
born as Spanish subjects. In Roa vs. Collector of Customs,223 Phil. 315 (1912). the Supreme Court
traced the grant of natural-born status from the Treaty of Paris, and the Acts of
Congress of July 1, 1902 and March 23, 1912, which is a reenactment of Section 4 of
the former with a proviso which reads:
“Provided, That the Philippine Legislature is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives of the Philippine Islands who
do not come within the foregoing provisions, the natives of other Insular possessions
of the United States, and such other persons residing in the Philippine Islands who
could become citizens of the United States under the laws of the United States, if
residing therein.”
It was further held therein that under the said provision, “every person born after the
11th of April, 1899, of parents who were Spanish subjects on that date and who
continued to reside in this country are at the moment of their birth ipso facto citizen of
the Philippine Islands.”
Under the April 7, 1900 Instructions of President William McKinley to line Second
Philippine Commission, considered as our first colonial charter or fundamental law,
we were referred to as “people of the Islands,” or “inhabitants of the Philippine
Islands,” or “natives of the Islands” and not as citizens, much less natural-born
citizens. The first definition of “citizens of the Philippine Is-
_____________
2
23 Phil. 315 (1912).
573
VOL. 357, MAY 7, 2001
lands” in our law is found in Section 4 of the Philippine Bill of 1902. 3SECTION 4. That all inhabitants of the
Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine and then resided in said Islands, and their children born subsequent
thereto, sh...
Philippine citizenship, including the status of natural-born, was initially a loose or

even non-existent qualification. As a requirement for the exercise of certain rights and
privileges, it became a more strict and difficult status to achieve with the passing of
the years.
Early decisions of the Supreme Court held that Philippine citizenship could be
acquired under either the jus sanguinis or jus solidoctrine.4Roa vs. Collector of Customs, supra; Lim Teco vs. Collector, 24
Phil. 84 (1913); United States vs. Lim Bin, 36 Phil. 924 (1917).
This liberal policy was applied even as the Philippine Bill of 1902 and the Jones
Law or the Philippine Autonomy Act of 1916 appear to have limited “citizens of the
Philippine Islands” to resident inhabitants who were Spanish subjects on April 11,
1899, their children born subsequent thereto, and later, those naturalized according to
law by the Philippine legislature. Only later was jus sanguinis firmly applied and jus
soli abandoned.
Hence, the status of being a natural-born citizen at its incipient is a privilege
conferred by law directly to those who intended, and actually continued, to belong to
the Philippine Islands. Even at the time of its conception in the Philippines, such
persons upon whom citizenship was conferred did not have to do anything to acquire
full citizenship.5Roa vs. Collector of Customs, ibid.
Respondent wants us to believe that since he was natural-born Filipino at birth,
having been born in the Philippines to Filipino
_____________
3
SECTION 4. That all inhabitants of the Philippine Islands continuing to reside
therein who were Spanish subjects on the eleventh day of April, eighteen hundred and
ninety-nine and then resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine Islands and as such
entitled to the protection of the United States, except such as shall have elected to
preserve their allegiance to the crown of Spain in accordance with the provisions of
the treaty of peace between the United States and Spain signed at Paris, December
tenth, eighteen hundred and ninety-eight.
4
Roa vs. Collector of Customs, supra; Lim Teco vs. Collector, 24 Phil.
84 (1913); United States vs. Lim Bin, 36 Phil. 924 (1917).
5
Roa vs. Collector of Customs, ibid.
574
parents, he was automatically restored to that status when he subsequently reacquired
his citizenship after losing it.
Public respondent HRET affirmed respondent’s position when it pronounced that
the definition of a natural-born citizen in Section 2, Article IV of the Constitution
refers to the classes of citizens enumerated in Section 1 of the same Article, to wit:
“Section 1. The following are citizens of the Philippines:
1. (1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
2. (2) Those whose fathers or mothers are citizens of the Philippines;
3. (3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
4. (4) Those who are naturalized in accordance with law.”
Thus, respondent HRET held that under the above enumeration-there are only two
classes of citizens, i.e., natural-born and naturalized. Since respondent Cruz is not a
naturalized citizen, then he is a natural-born Filipino citizen.
I do not agree. I reiterate that Section 2, Article IV of the Constitution defines
natural-born citizens as “those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship.”
Pursuant to R.A. No. 2630, quoted as follows:
“Republic Act No. 2630. AN ACT PROVIDING FOR REACQUISITION OF
PHILIPPINE CITIZENSHIP BY PERSONS WHO LOST SUCH CITIZENSHIP BY
RENDERING SERVICE TO, OR ACCEPTING COMMISSION IN, THE ARMED
FORCES OF THE UNITED STATES, provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service
to, or accepting commission in the Armed Forces of the United States, or after
separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the
Republic of the Philippines and registering the same with the Local Civil Registry in
the place where he resides or last resided in the Philippines. The said oath of
allegiance shall contain a renunciation of any other citizenship.”
575
VOL. 357, MAY 7, 2001
respondent Cruz had to perform certain acts before he could again become a Filipino
citizen. He had to take an oath of allegiance to the Republic of the Philippines and
register his oath with the Local Civil Registry of Mangatarem, Pangasinan. He had to
renounce his American citizenship and had to execute an affidavit of reacquisition of
Clearly, he did not reacquire his natural-born citizenship. The cardinal rule in the
interpretation and construction of a constitution is to give effect to the intention of the
framers and of the people who adopted it. Words appearing in a Constitution are used
according to their plain, natural, and usual significance and import and must be
understood in the sense most obvious to the common understanding of the people at
the time of its adoption.
The provision on “natural-born citizens of the Philippines” is precise, clear and
definite. Indeed, neither HRET nor this Court can construe it other than what its plain
meaning conveys. It is not phrased in general language which may call for
construction of what the words imply.
In J.M. Tuason & Co., Inc. vs. Land Tenure Administration,631 SCRA 413 (1970). this Court
held:
“Ascertainment of meaning of provisions of Constitution begins with the language of
the document itself. The words used in the Constitution are to be given their ordinary
meaning, except where technical terms are employed, in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer’s
document, it being essential for the rule of law to obtain that it should ever be present
in the people’s consciousness, its language as much as possible, should be understood
in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say.”
The definition of a natural-born citizen in the Constitution must be applied to this
petition according to its natural sense.
Respondent HRET likewise ruled that the “reacquisition of Philippine citizenship
through any of these modes: (naturalization,
____________
6
31 SCRA 413 (1970).
576
repatriation and legislation under Section 3, CA. No. 63) results in the restoration of
previous status, either as a natural-born or a naturalized citizen” is a simplistic
approach and tends to be misleading.
If citizenship is gained through naturalization, repatriation or legislation, the citizen
concerned can not be considered natural-born. Obviously, he has to perform certain
acts to become a citizen.
As expressed in the Dissent of Justice Jose C. Vitug 7Member of the HRET. in the instant case,
concurred in by Justice Jose A.R. Melo:8Chairman, ibid.
“Repatriation is the resumption or recovery of original nationality upon the fulfillment
of certain conditions. While an applicant need not have to undergo the tedious and
time consuming process required by the Revised Naturalization Law (CA 473, as
amended), he, nevertheless, would still have to make an express and unequivocal act
of formally rejecting his adopted state and reaffirming his total and exclusive
allegiance and loyalty to the Republic of the Philippines. It bears emphasis that, to be
considered a natural-born citizen under the first part of section 2, Article IV, of the
1987 Constitution, one should not have to perform any act at all or go through any
process, judicial or administrative, to enable him to reacquire his citizenship.
Willoughby opines that a natural-born citizen is one who is able to claim citizenship
without any prior declaration on his part of a desire to obtain such status. Under this
view, the term ‘natural born’ citizens could also cover those who have been
collectively deemed citizens by reason of the Treaty of Paris and the Philippine Bill of
1902 and those who have been accorded by the 1935 Constitution to be Filipino
citizens (those born in the Philippines of alien parents who, before the adoption of the
1935 Constitution had been elected to public office.)”
The two dissenting Justices correctly stated that the “stringent requirement of the
Constitution is so placed as to insure that only Filipino citizens with an absolute and
permanent degree of allegiance and loyalty shall be eligible for membership in
Congress, the branch of the government directly involved and given the delicate task
of legislation.”
____________
7
Member of the HRET.
8
Chairman, ibid.
577
VOL. 357, MAY 7, 2001
The dissenting opinion further states:
“The term ‘natural-born’ Filipino citizen, first constitutionally defined in the 1973
Charter, later adopted by the 1987 Constitution, particularly in Section 2, Article IV
thereof, is meant to refer to those ‘who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their citizenship,’ and to those
‘who elect Philippine citizenship.’ Time and again, the Supreme Court has declared
that where the law speaks in clear and categorical language, there is no room for
interpretation, vacillation or equivocation—there is only room for application. The
phrase ‘from birth’ indicates that there is a starting point of his citizenship and this
citizenship should be continuous, constant and without interruption.”
Thus, respondent is not eligible for election to Congress as the Constitution requires
that a member of the House of Representatives must be a “natural-born citizen of the
Philippines.”
For sure, the framers of our Constitution intended to provide a more stringent
citizenship requirement for higher elective offices, including that of the office of a
Congressman. Otherwise, the Constitution should have simply provided that a
candidate for such position can be merely a citizen of the Philippines, as required of
local elective officers.
The spirit of nationalism pervading the 1935 Constitution, the first charter framed
and ratified by the Filipinos (even as the draft had to be approved by President
Franklin Delano Roosevelt of the United States) guides and governs the interpretation
of Philippine citizenship and the more narrow and bounded concept of being a
natural-born citizen.
Under the 1935 Constitution,9This refers to the 1935 Constitution as adopted by the Philippine Constitutional Convention on February 8, 1935, signed by
President Franklin D. Roosevelt on March 23, 1935 and ratified by Filipino voters in a plebiscite held on May 14, 1935.
the requirement of natural-born
citizenship was applicable only to the President and Vice President. 10Section 3, Article VII, 1935
Constitution.
A person who had been a citizen for only five (5) years could
_______________
9
This refers to the 1935 Constitution as adopted by the Philippine Constitutional
Convention on February 8, 1935, signed by President Franklin D. Roosevelt on March
23, 1935 and ratified by Filipino voters in a plebiscite held on May 14, 1935.
10
Section 3, Article VII, 1935 Constitution.
578
be elected to the National Assembly. 11 Only in 1940,12 when the first Constitution was
amended did natural-born citizenship become a requirement for Senators and
Members of the House of Representatives. 13Sections 4 and 7, Article VI, 1935 Constitution, as amended. A Filipino
naturalized for at least five (5) years could still be appointed Justice of the Supreme
Court or a Judge of a lower court.14Sections 6 and 8, Article VIII, ibid.
The history of the Constitution shows that the meaning and application of the
requirement of being natural-born have become more narrow and qualified over the
years.
Under the 1973 Constitution,15 the President, members of the National Assembly,
Prime Minister, Justices of the Supreme Court, Judges of inferior courts, the chairmen
and members of the Constitutional Commissions and the majority of members of the
cabinet, must be natural-born citizens. 16Section 2, Article VII; Section 4, Article VIII; Sections 3 and 4, Article IX; Section 3(1) and (2), Article X; Section
1(1) Article XII-B, Section 1(1), Article XII-C; Section 1 (1) Article XII-D, 1973 Constitution.
The 1987 Constitution added the Ombudsman
and his deputies and the members of the Commission on Human Rights to those who
must be natural-born citizens.17Section 8, Article XI; and Section 1.7(2), Article XIII, 1987 Constitution.
The questioned Decision of respondent HRET reverses the historical trend and
clear intendment of the Constitution. It shows a more liberal, if not a cavalier
approach to the meaning and import of natural-born citizen and citizenship in general.
It bears stressing that we are tracing and enforcing a doctrine embodied in no less
than the Constitution. Indeed, a deviation from the clear and constitutional definition
of a “natural-born Filipino
_____________
11
Section 2, Article VI, ibid.
12
The 1935 Constitution was amended by Resolution Numbered Seventy-three,
adopted by the Second National Assembly on the 11th day of April 1940, and
approved by the President of the United States on December 2, 1940.
13
Sections 4 and 7, Article VI, 1935 Constitution, as amended.
14
Sections 6 and 8, Article VIII, ibid.
15
This refers to the 1973 Constitution as approved by the Filipino people in a
referendum held between January 10, 1973 and January 15, 1973 and which became
effective on January 17, 1973.
16
Section 2, Article VII; Section 4, Article VIII; Sections 3 and 4, Article IX;
Section 3(1) and (2), Article X; Section 1(1) Article XII-B, Section 1(1), Article XII-
C; Section 1 (1) Article XII-D, 1973 Constitution.
17
Section 8, Article XI; and Section 1.7(2), Article XIII, 1987 Constitution.
579
VOL. 357, MAY 7, 2001
citizen” is a matter which can only be accomplished through a constitutional
amendment. Clearly, respondent HRET gravely abused its discretion.
Respondent Cruz has availed himself of the procedure whereby his citizenship has
been restored. He can run for public office where natural-born citizenship is not
mandated. But he cannot be elected to high offices which the Constitution has
reserved only for natural-born Filipino citizens.
WHEREFORE, I vote to GRANT the petition.
Petition dismissed.
Note.—Republic Acts Nos. 965 and 2630 only apply to persons who had lost their
citizenship by rendering service to or accepting commission in the armed forces of an
allied foreign country or the armed forces of the United States of America. (Angat vs.
Republic, 314 SCRA 438 [1999])
——o0o——
April 7, 2010. G.R. No. 189793.*
SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, petitioners, vs. COMMISSION
ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its Commissioners, RENE V. SARMIENTO,
NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND
GREGORIO LARRAZABAL, respondents.
Civil Procedure; Courts; Hierarchy of Courts; Supreme Court sanctioned momentary deviation
from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of
paramount public importance.—In Del Mar v. Philippine Amusement and Gaming Corporation
(PAGCOR), 346 SCRA 485 (2000) and Jaworski v. Philippine Amusement and Gaming Corporation
(PAGCOR), 419 SCRA 317 (2004), this Court sanctioned momentary deviation from the principle of the
hierarchy of courts, and took original cognizance of cases raising issues of paramount public importance.
Constitutional Law; Statutes; Before a law may be declared unconstitutional by the Supreme Court,
there must be a clear showing that a specific provision of the fundamental law has been violated or
transgressed.—Any law duly enacted by Congress carries with it the presumption of constitutionality.
Before a law may be declared unconstitutional by this Court, there must be a clear showing that a specific
provision of the fundamental law has been violated or transgressed. When there is neither a violation of a
specific provision of the Constitution nor any proof showing that there is such a violation,
_______________
* EN BANC.
624

24 ANNOTATED
Aquino III vs. Commission on Election
the presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.
Same; Election Law; Legislative Districts; There is no specific provision in the Constitution that
fixes a 250,000 minimum population that must compose a legislative district.—There is no specific
provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative
district. As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of
the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution
to adopt a minimum population of 250,000 for each legislative district. The second sentence of Section
5(3), Article VI of the Constitution, succinctly provides: “Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one representative.” The provision draws a
plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement
of a province to a district on the other.
Same; Same; Same; While Section 5(3), Article VI of the Constitution requires a city to have a
minimum population of 250,000 to be entitled to a representative, it does not have to increase its
population by another 250,000 to be entitled to an additional district.—The Mariano case limited the
application of the 250,000 minimum population requirement for cities only to its initial legislative
district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a
minimum population of 250,000 to be entitled to a representative, it does not have to increase its
population by another 250,000 to be entitled to an additional district. There is no reason why
the Mariano case, which involves the creation of an additional district within a city, should not be
applied to additional districts in provinces. Indeed, if an additional legislative district created within a
city is not required to represent a population of at least 250,000 in order to be valid, neither should such
be needed for an additional district in a province, considering moreover that a province is entitled to
an initial seat by the mere fact of its creation and regardless of its population. 625
VOL. 617, APRIL 7, 2010 6

25
CARPIO,J., Dissenting Opinion:
Constitutional Law; Election Law; Legislative Districts; View that the assailed Republic Act No.
9716 is unconstitutional for being utterly repugnant to the clear and precise “standards” prescribed in
Section 5, Article VI of the 1987 Constitution for the creation of legislative districts.—The assailed
Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly repugnant to the clear and precise
“standards” prescribed in Section 5, Article VI of the 1987 Constitution for the creation of legislative
districts. Section 5(4) of Article VI mandates that “Congress shall make a reapportionment of
legislative districts based on thestandards” fixed in Section 5. These constitutional standards, as far as
population is concerned, are: (1) proportional representation; (2) minimum population of 250,000 per
legislative district; (3) progressive ratio in the increase of legislative districts as the population base
increases; and (4) uniformity in apportionment of legislative districts “in provinces, cities, and the
Metropolitan Manila area.” The assailed RA 9716 grossly violates these constitutional standards.
Same; Same; Same; View that to now declare that apportionment in provinces can disregard the
minimum population requirement because the Constitution speaks of a minimum population only in cities
is logically flawed, constitutionally repulsive, and fatally corrosive of the bedrock notion that this country
is a “democratic and republican State.”—To now declare, as the majority opinion holds, that
apportionment in provinces can disregard the minimum population requirement because the Constitution
speaks of a minimum population only in cities is logically flawed, constitutionally repulsive, and fatally
corrosive of the bedrock notion that this country is a “democratic and republican State.” This ruling of the
majority strikes a debilitating blow at the heart of our democratic and republican system of government.
Same; Same; Same; View that on population, the standards of the 1987 Constitution have four
elements.—On population, the standards of the 1987 Constitution have four elements. First is the rule on
proportional representation, which is the universal standard in direct representation in legislatures. Second
is the rule on a minimum population of 250,000 per legislative district, which was not
626

26 ANNOTATED
present in our previous Constitutions. Third is the rule on progressive ratio, which means that the
number of legislative districts shall increase as the number of the population increases in accordance with
the rule on proportional representation. Fourth is the rule on uniformity, which requires that the first
three rules shall apply uniformly in all apportionments in provinces, cities and the Metropolitan
Manila area.
Same; Same; Same; View that the Constitution provides for four (4) standards in the apportionment
of legislative districts as far a population is concerned.—The constitutional “standards” in the
apportionment of legislative districts under Section 5 of Article VI, as far as population is concerned, are:
(1) proportional representation; (2) a minimum “population of at least two hundred fifty thousand” per
legislative district; (3) progressive ratio in the increase of legislative districts as the population base
increases; and (4) uniformity in the apportionment of legislative districts in “provinces, cities, and the
Metropolitan Manila area.”
Same; Same; Same; View that Senator Aquino’s attempt to redraw districting lines to make all five
proposed districts compliant with the minimum population requirement was thwarted chiefly for political
expediency.—Significantly, petitioner Senator Aquino’s attempt to redraw districting lines to make all
five proposed districts compliant with the minimum population requirement (and thus lessen the wide
variances in population among the districts) was thwarted chiefly for political expediency: his colleagues
in the Senate deemed the existing districts in Camarines Sur “untouchable” because “[a Congressman] is
king [in his district].” This shows a stark absence of a good faith effort to achieve a more precise
proportional representation in the redistricting under the assailed RA 9716. Clearly, RA 9716 tinkers with
vote valuation, and consequently with the constitutional standard of proportional representation, based
solely on the whims of incumbent Congressmen, an invalid standard for redistricting under Section 5 of
Article VI.
Same; Same; Same; View that the Constitution mandates that the creation of legislative districts in
provinces, cities and the Metropolitan Manila area must comply with proportional representation, on the
basis of a uniform and progressive ratio.—The directive in Section 5(3) of Article VI that “each
province, shall have at least one
627
VOL. 617, APRIL 7, 2010 6

27
representative” means only that when a province is created, a legislative district must also be created
with it. Can this district have a population below 250,000? To answer in the affirmative is to ignore the
constitutional mandate that districts in provinces be apportioned “in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio.” That the Constitution never
meant to exclude provinces from the requirement of proportional representation is evident in the opening
provision of Section 5(1), which states: The House of Representatives shall be composed of x x x
members, x x x, who shall be elected from legislative districts apportioned among theprovinces, cities,
and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio x x x.” In short, the Constitution clearly mandates that the
creation of legislative districts in provinces, cities and the Metropolitan Manila area must comply with
proportional representation, on the basis of a uniform and progressive ratio.
Same; Same; Same; View that such a grant of privileged political status is the modern day
equivalent of a royalty or nobility title, which is banned under the 1987 Constitution.—To create a special
class of legislative districts represented by a new political elite exercising more legislative power than
their votes command? Such a grant of privileged political status is the modern day equivalent of a royalty
or nobility title, which is banned under the 1987 Constitution. History will not be kind to those who
embark on a grotesquely anomalous constitutional revision that is repulsive to our ideals of a “democratic
and republican State.”
Same; Same; Same; View that the ruling of the majority today could sound the death knell for the
principle of “one person, one vote” that insures equality in voting power.—The ruling of the majority
today could sound the death knell for the principle of “one person, one vote” that insures equality in
voting power. All votes are equal, and there is no vote more equal than others. This equality in voting
power is the essence of our democracy. This Court is supposed to be the last bulwark of our democracy.
Sadly, here the Court, in ruling that there are some votes more equal than others, has failed in its
primordial constitutional duty to protect the essence of our democracy. 628

28 ANNOTATED
CARPIO-MORALES,Concurring and Dissenting Opinion: J.,
Taxpayer’s Suit; Civil Procedure; Parties; View that at the initiative of a taxpayer, a statute may be
nullified, on the supposition that expenditure of public funds for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds.—“Transcendental importance” doctrine
aside, petitioners have the requisite locus standi. Petitioners are suing not only as lawmakers but
as taxpayers and citizens as well. At the initiative of a taxpayer, a statute may be nullified, on the
supposition that expenditure of public funds for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds. Republic Act No. 9716 (R.A. 9716) mandates the creation of
another legislative district and indubitably involves the expenditure of public funds.
Civil Procedure; Legislative Districts; Parties; View that nothing in Mariano vs. Comelec, 242
SCRA 211 (1995) reflects that the Court disregarded the 250,000 population requirement as it merely
stated that Makati’s legislative district may still be increased as long as the minimum population
requirement is met.—Nothing in Mariano reflects that the Court disregarded the 250,000 population
requirement as it merely stated that Makati’s legislative district may still be increased as long as the
minimum population requirement is met. The permissive declaration at that time presupposes that Makati
must still meet the constitutional requirements before it can have another congressional district.
Same; Same; Same; View that there is no point in asserting that population is merely an alternative
addition to the income requirement.—The Local Government Code likewise is not in point since Section
461 thereof tackles the creation of a province and not the reapportioning of a legislative district based on
increasing population. There is thus no point in asserting that population is merely an alternative addition
to the income requirement.
Same; Same; Same; View that using anything less than 250,000 is illogical, for it would operate to
allow more than 360 representatives of legislative districts alone on some capricious basis other than the
variable of population.—Following the constitutional mandate, the population requirement cannot fall
below 250,000. This is the average “uniform and progressive ratio” that should prevail. Thus, using the
present population figure, the benchmark should be any-
629
VOL. 617, APRIL 7, 2010 6

29
where between 250,000-450,000 persons per district. Using anything less than 250,000 is illogical,
for it would operate to allow more than 360 representatives of legislative districts alone on some
capricious basis other than the variable of population.
Same; Same; Same; View that the ponencia sweepingly declares that “population was explicitly
removed as a factor,” far from it—population remains the controlling factor.—The ponenciasweepingly
declares that “population was explicitly removed as a factor.” Far from it. Population remains the
controlling factor. From the discussions in the initial apportionment and districting of Puerto Princesa,
Baguio, Cavite, Laguna, Maguindanao and Cebu in 1986, it is clear that population and contiguity were
the primary considerations, and the extraneous factors considered were circumspectly subsumed thereto.
Same; Same; Same; View that Republic Act (R.A.) No. 9716 created one legislative district by
reconfiguring the first and second districts; it did not, however, touch the third and fourth districts
which, when properly reapportioned, can easily form another district.—R.A. 9716 created one legislative
district by reconfiguring the first and second districts. It did not, however, touch the third and fourth
districts which, when properly reapportioned, can easily form another district. No reasons were offered
except Senator Joker Arroyo’s during the Senate Plenary Debates on H.B. No. 4264, viz.: “When it comes
to their district, congressmen are kings. We cannot touch them. He [referring to Rep. Villafuerte] does not
also want it [referring to the district of Rep. Villafuerte] touched... even if they have a pregnant populace
or inhabitants, he does not want it touched.”
Same; Same; Same; View that linguistic difference is a weak basis to segregate the municipalities in
the redistricting.—The extraneous factors cited by the ponencia do not suffice to justify the redistricting,
particularly the inclusion of the municipality of Libmanan in the second district. Linguistic difference is a
weak basis to segregate the municipalities in the redistricting. To sanction that as basis would see a
wholesale redistricting of the entire country, given the hundreds of dialects being spoken. Imagine
Binondo being segregated from the Tagalog-speaking district of Tondo or Sta. Cruz in Manila on the
ground that Fookien is largely spoken in Binondo.630

30 ANNOTATED
Same; Same; Same; View that the ponencia effectively opens the floodgates to opportunistic
lawmakers to reconfigure their own principalia and bantam districts.—By pronouncing that “other
factors,” aside from population, should be considered in the composition of additional districts, thereby
adding other requisites despite the Constitution’s clear limitation to population and contiguity,
the ponencia effectively opens the floodgates to opportunistic lawmakers to reconfigure their own
principalia and bantam districts. Leaving open Section 5 of Article VI to arbitrary factors, such as
economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-for-all.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
Peter M. Manzano and Jose Amor M. Amorado for petitioner.
PEREZ,J.:
This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules
of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as
public officers, taxpayers and citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled
“An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment.” Petitioners
consequently pray that the respondent Commission on Elections be restrained from making any issuances and from
taking any steps relative to the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria
Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days following its
publication in the Manila Stan-
631
VOL. 617, APRIL 7, 2010 631
dard, a newspaper of general circulation. 1 In substance, the said law created an additional legislative district for the
Province of Camarines Sur by reconfiguring the existing first and second legislative districts of the province.Prior to
Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821, 2 distributed
among four (4) legislative districts in this wise:
District Municipalities/Cities Population
Del Gallego Libmanan
1st Ragay Minalabac 417,304
District LupiSi Pamplona
pocot Pasacao
Cabusao San
Fernando
2nd Gainza Canaman 474,899
District Milaor Camaligan
Naga Magarao
Pili Bombon
Ocampo Calabanga
Caramoan Sangay
3rd Garchitorena San Jose 372,548
District GoaLagonoy Tigaon
Presentacion Tinamba
Siruma
4th Iriga Buhi 429,070
District Baao Bula
BalatanBato Nabua
_______________
1 Republic Act No. 9716 was published in the 15 October 2009 issue of the Manila Standard.
2 Figures based on the 2007 Census of Population conducted by the National Statistics Office.
632
2 ANNOTATED
Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were
reconfigured in order to create an additional legislative district for the province. Hence, the first district
municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second
district municipalities of Milaor and Gainza to form a new second legislative district. The following table 3 illustrates
the reapportionment made by Republic Act No. 9716:
District Municipalities/Cities Population
Del Gallego 176,383
1st District Ragay
Lupi
Sipocot
Cabusao
2nd District Libmanan San 276,777
Minalabac Fernando
Pamplona Gainza
Pasacao Milaor
3rd District Naga Camaligan 439,043
(formerly Pili Magarao
2ndDistrict) Ocampo Bombon
Canaman Calabanga
4th District Caramoan SangaySan 372,548
(formerly Garchitoren JoseTigaon
3rdDistrict) a Tinamba
Goa Siruma
Lagonoy
Presentacion
5th District Iriga Buhi 429,070
(formerly Baao Bula
4thDistrict) Balatan Nabua
Bato
_______________
3 Figures based on the 2007 Census of Population conducted by the National Statistics Office.
633
VOL. 617, APRIL 7, 2010 633
Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill
that became the law show that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of
thirteen (13) in favor and two (2) against, the process progressed step by step, marked by public hearings on the
sentiments and position of the local officials of Camarines Sur on the creation of a new congressional district, as
well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that
a population of at least 250,000 is required by the Constitution for such new district.4
Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-
petitioner, Robredo, is the Mayor of Naga City, which was a part of the former second district from which the
municipalities of Gainza and Milaor were taken for inclusion in the new second district. No other local executive
joined the two; neither did the representatives of the former third and fourth districts of the province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of
the explicitconstitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for
the creation of a legislative district.5 The petitioners claim that the reconfiguration by Republic Act No. 9716 of the
first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a
population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum
population standard.6 The provision reads:
_______________
4 Rollo, p. 40.
5 Id., at p. 12.
6 Id., at pp. 14-15.
634
4 ANNOTATED
Article VI
(1) x x x x 5. “Section
x x x x (2)
Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent
territory. (3) Each city with a population of at least two hundred fifty thousand, or each province,
shall have at least one representative.
x x x x” (Emphasis supplied). (4)

The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population
requirement for the creation of a legislative district. 7 The petitioners theorize that, save in the case of a newly created
province, each legislative district created by Congress must be supported by a minimum population of at least
250,000 in order to be valid.8 Under this view, existing legislative districts may be reapportioned and severed to
form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand,
if the reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000
inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the minimum population
requirement.
In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987
Constitution to adopt a population minimum of 250,000 in the creation of additional legislative seats. 9 The
petitioners argue that when the Constitutional Commission fixed the original number of district seats in the House of
Representatives to two hundred (200), they took into account the projected national population of fifty five million
(55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented by
_______________
7 Id.
8 Id.
9 Id., at p. 16.
10 Id.
635
VOL. 617, APRIL 7, 2010 635
200 district representatives translates to roughly 250,000 people for every one (1) representative. 11 Thus, the 250,000
population requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based on the
population constant used by the Constitutional Commission in distributing the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a
province, Congress is bound to observe a 250,000 population threshold, in the same manner that the Constitutional
Commission did in the original apportionment.
Verbatim, the submission is that:
Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur
failed to meet the population requirement for the creation of the legislative district as explicitly provided
in Article VI, Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the Ordinance
appended thereto; and 1.
Republic Act 9716 violates the principle of proportional representation as provided in Article VI,
Section 5 paragraphs (1), (3) and (4) of the Constitution. 2. 12
The provision subject of this case states:

VI Article
The House of Representatives shall be composed of not more than two hundred and fifty members,
provinces, cities and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional and sectoral parties or
organizations. “Section 5. (1)
x x x x (2)
_______________
11 Id.
12 Id., at pp. 12-13.
636

6 ANNOTATED
Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent
territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have
at least one representative. (3)
Within three years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section.” (4)
On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present
petition based on procedural and substantive grounds.
On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects:
first, petitioners committed an error in choosing to assail the constitutionality of Republic Act No. 9716 via the
remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have no locus
standi to question the constitutionality of Republic Act No. 9716.
On substantive matters, the respondents call attention to an apparent distinction between cities and provinces
drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000
population condition, but argue that a plain and simple reading of the questioned provision will show that the same
has no application with respect to the creation of legislative districts in provinces. 13 Rather, the 250,000 minimum
population is only a requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts
in provinces. Therefore, Republic Act No. 9716, which only creates an additional legislative district within the
province of Camarines Sur, should be sustained as a perfectly valid reapportionment law.
We first pass upon the threshold issues.
_______________
13 Id., at p. 96.
637
VOL. 617, APRIL 7, 2010 637
The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the
petitioners have committed a fatal procedural lapse. The respondents cite the following reasons:
The instant petition is bereft of any allegation that the respondents had acted without or in excess of
jurisdiction, or with grave abuse of discretion. 1.
The remedy of 2. Certiorari and Prohibition must be directed against a tribunal, board, officer or person,
whether exercising judicial, quasi-judicial, or ministerial functions. Respondents maintain that in
implementing Republic Act No. 9716, they were not acting as a judicial or quasi-judicial body, nor were they
engaging in the performance of a ministerial act.
The petitioners could have availed themselves of another plain, speedy and adequate remedy in the
ordinary course of law. Considering that the main thrust of the instant petition is the declaration of
unconstitutionality of Republic Act No. 9716, the same could have been ventilated through a 3. petition for
declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction.
The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of
sustaining any substantial injury as a result of the implementation of Republic Act No. 9716. The respondents,
therefore, conclude that the petitioners lack the required legal standing to question the constitutionality of Republic
Act No. 9716.
This Court has paved the way away from procedural debates when confronted with issues that, by reason of
constitutional importance, need a direct focus of the arguments on their content and substance. 638
8 ANNOTATED
The Supreme Court has, on more than one occasion, tempered the application of procedural rules, 14 as well as
relaxed the requirement of locus standi whenever confronted with an important issue of overreaching significance to
society.15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR) 16 and Jaworski v.
PAGCOR,17 this Court sanctioned momentary deviation from the principle of the hierarchy of courts, and took
original cognizance of cases raising issues of paramount public importance. The Jaworski case ratiocinates:
“Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this nation,
specially the youth; hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict
and rigid application, which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed.” (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,18Tatad v.
_______________
14 Del Mar v. Philippine Amusement and Gaming Corporation, 400 Phil. 307; 346 SCRA 485 (2000); Fortich v.
Corona, 352 Phil. 461; 289 SCRA 624 (1998).
15 Chavez v. Public Estates Authority, 433 Phil. 506, 528; 384 SCRA 152 (2002); Bagong Alyansang Makabayan v.
Zamora, 396 Phil. 623, 646; 342 SCRA 449 (2000); Lim v. Executive Secretary, 430 Phil. 555, 580; 380 SCRA 739
(2002).
16 Id.
17 464 Phil. 375, 385; 419 SCRA 317 (2004).
18 G.R. No. 113375, 5 May 1994, 232 SCRA 110.
639
VOL. 617, APRIL 7, 2010 639
Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong Alyansang Makabayan v. Zamora,21 just to
name a few, that absence of direct injury on the part of the party seeking judicial review may be excused when the
latter is able to craft an issue of transcendental importance. In Lim v. Executive Secretary,22 this Court held that in
cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing
requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v.
Gonzales.23
Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path
must be taken. We go directly to the determination of whether or not a population of 250,000 is an indispensable
constitutional requirement for the creation of a new legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it the presumption of
constitutionality.24 Before a law may be declared unconstitutional by this Court, there must be a clear showing that
a specific provision of the fundamental law has been violated or transgressed. When there is neither a violation of a
specific provision of the Constitution nor any proof showing that there is such a violation, the presumption of
constitutionality will prevail and the law must be upheld. To doubt is to sustain.25

_______________
19 346 Phil. 321 (1997).

20 Supra note 15.
21 Id.
22 Supra note 15 at 580.
23 G.R. No. 168338, 15 February 2008, 545 SCRA 441.
24 Alvarez v. Guingona, 322 Phil. 774, 789; 252 SCRA 695 (1996).
25 The Philippine Judges Association v. Prado, G.R. No. 105371, 11 November 1993, 227 SCRA 703, 705-706.
640
0 ANNOTATED
There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a
legislative district.
As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987
Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum
population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: “Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one representative.”
The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and
the entitlement of a province to a district on the other. For while a province is entitled to at least a representative,
with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be
similarly entitled.
The use by the subject provision of a comma to separate the phrase “each city with a population of at least two
hundred fifty thousand” from the phrase “or each province” point to no other conclusion than that the 250,000
minimum population is only required for a city, but not for a province.26
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be
entitled to a representative, but not so for a province.
The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of
interpretation by this Court in Mariano, Jr. v. COMELEC.27
_______________
26 Records of the Constitutional Commission, Vol. II, pp. 136-138.
27 312 Phil. 259; 242 SCRA 211 (1995).
641
VOL. 617, APRIL 7, 2010 641
In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that
converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created
an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued
that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the
resulting districts would be supported by a population of less than 250,000, considering that Makati had a total
population of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity of the
newly created district, explaining the operation of the Constitutional phrase “each city with a population of at least
two hundred fifty thousand,” to wit:
“Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city
with a population of at least two hundred fifty thousand(250,000) shall have at least one
representative. Even granting that the population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still be increased since it has met the
minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased to
more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional
representative.” (Emphasis supplied)
28
The Mariano case limited the application of the 250,000 minimum population requirement for cities only to
its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have
a minimum population of 250,000 to be entitled to a representative, it
_______________
28 Id., at pp. 272-273; pp. 222-223.

642
2 ANNOTATED
does not have to increase its population by another 250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of an additional district within a city,
should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a
city is not required to represent a population of at least 250,000 in order to be valid, neither should such be needed
for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere
fact of its creation and regardless of its population.
Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by
virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government
Code states:
“Requisites for Creation.—(a) A province may be created if it has an average annual income,
as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:
a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the
Lands Management Bureau; or (i)
a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by
the National Statistics Office.” (ii)
Notably, the requirement of population is not an indispensable requirement, but is merely an alternativeaddition
to the indispensable income requirement.
Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the
words and meaning of Section 5 of Article VI.
The whats, whys, and wherefores of the population requirement of “at least two hundred fifty thousand” may be
gleaned from the records of the Constitutional Commission which, upon framing the provisions of Section 5 of
Article VI,
643
VOL. 617, APRIL 7, 2010 643
proceeded to form an ordinance that would be appended to the final document. The Ordinance is captioned
“APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE
METROPOLITAN MANILA AREA.” Such records would show that the 250,000 population benchmark was used
for the 1986 nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila.
Simply put, the population figure was used to determine how many districts a province, city, or Metropolitan Manila
should have. Simply discernible too is the fact that, for the purpose, population had to be the determinant. Even then,
the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative district. And,
closer to the point herein at issue, in the determination of the precise district within the province to which, through
the use of the population benchmark, so many districts have been apportioned, population as a factor was not the
sole, though it was among, several determinants.
From its journal,29 we can see that the Constitutional Commission originally divided the entire country into two
hundred (200) districts, which corresponded to the original number of district representatives. The 200 seats were
distributed by the Constitutional Commission in this manner: first, one (1) seat each was given to the seventy-three
(73) provinces and the ten (10) cities with a population of at least 250,000; 30 second, the remaining seats were then
redistributed among the provinces, cities and the Metropolitan Area “in accordance with the number of their
inhabitants on the basis of a uniform and progressive ratio.”31 Commissioner Davide, who later became a Member
and then Chief Justice of the
_______________
29 Journal of the Constitutional Commission, Vol. III, pp. 1859-1881.

30 Record of the Constitutional Commission, Vol. V, p. 949.
31 Id.
644
4 ANNOTATED
Court, explained this in his sponsorship remark 32 for the Ordinance to be appended to the 1987 Constitution:
“Commissioner Davide:The ordinance fixes at 200 the number of legislative seats which are, in turn,
apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan Area
in accordance with the number of their respective inhabitants on the basis of a uniform and progressive
ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of
reckoning. This projection indicates that our population is more or less 56 million. Taking into
account the mandate that each city with at least 250, 000 inhabitants and each province shall have
at least one representative, we first allotted one seat for each of the 73 provinces, and each one for
all cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay,
Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then
proceed[ed] to increase whenever appropriate the number of seats for the provinces and cities in
accordance with the number of their inhabitants on the basis of a uniform and progressive ratio.”
(Emphasis supplied).
Thus was the number of seats computed for each province and city. Differentiated from this, the determination
of the districts within the province had to consider “all protests and complaints formally received” which, the
records show, dealt with determinants other than population as already mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:
INTERPELLATION OF MR. NOLLEDO:
Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was
more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra, Quezon and Marcos.
He stated that the First District has a greater area than the
_______________
32 Id.
645
VOL. 617, APRIL 7, 2010 645

Second District. He then queried whether population was the only factor considered by the Committee in
redistricting.
Replying thereto, Mr. Davide explained that the Committee took into account the standards set in
Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be
apportioned among the provinces and cities and the Metropolitan Manila area in accordance with their
inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must be compact,
adjacent and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the
northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the
apportionment, its inclusion with the northern towns would result in a combined population of 265,000 as
against only 186,000 for the south. He added that Cuyo and Coron are very important towns in the
northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its transfer to Puerto
Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto
Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the
south, most of whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be
included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the period of amendments. He
requested that the COMELEC staff study said proposal. 33
“PROPOSED AMENDMENT OF MR. NOLLEDO

On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that
District I has a total population of 265,358 including the City of Puerto Princesa, while the Second
District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in the
Second District in order to satisfy the contiguity requirement in the Constitution considering
_______________
33 Journal of the Constitutional Commission, Vol. III, p. 1861.
646

6 ANNOTATED
that said City is nearer the southern towns comprising the Second District.
In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of Puerto
Princesa City to the Second District, the First District would only have a total population of 190,000
while the Second District would have 262,213, and there would be no substantial changes.
Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the Municipality of
Aborlan.
There being no objection on the part of the Members the same was approved by the Body.
APPROVAL OF THE APPORTIONMENT AND
DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being no objection, the
apportionment and districting for the province of Palawan was approved by the Body.” 34
The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the
towns and the city that eventually composed the districts.
Benguet and Baguio are another reference point. The Journal further narrates:
“At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the
Committee for the possible reopening of the approval of Region I with respect to Benguet and Baguio
City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one
district. He stated that he was toying with the idea that, perhaps as a special consideration for Baguio
because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City so that it
could, by itself, have its own constituency and Tuba could be transferred to the Second Dis-
_______________
34 Id., at p. 1867.
647
VOL. 617, APRIL 7, 2010 647

trict together with Itogon. Mr. Davide, however, pointed out that the population of Baguio City is only
141,149.
Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the
year, but the transient population would increase the population substantially and, therefore, for purposes
of business and professional transactions, it is beyond question that population-wise, Baguio would more
than qualify, not to speak of the official business matters, transactions and offices that are also there.
Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are united,
Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through
Baguio City. He stated that the Committee would submit the matter to the Body.
Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the
Body should have a say on the matter and that the considerations he had given are not on the demographic
aspects but on the fact that Baguio City is the summer capital, the venue and situs of many government
offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the
earlier approval of the apportionment and districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was
put to a vote. With 14 Members voting in favor and none against, the amendment was approved by the
Body.
Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will
have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun,
Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second
District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and districting of Region I.” 35
_______________
35 Id., at p. 1872.
648
8 ANNOTATED
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution
of its three cities, with each district having a city: one district “supposed to be a fishing area; another a vegetable and
fruit area; and the third, a rice growing area,” because such consideration “fosters common interests in line with the
standard of compactness.”36 In the districting of Maguindanao, among the matters discussed were “political stability
and common interest among the people in the area” and the possibility of “chaos and disunity” considering the
“accepted regional, political, traditional and sectoral leaders.” 37 For Laguna, it was mentioned that municipalities in
the highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed
that they should “balance the area and population.”38
Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v.
COMELEC39 that:
“x x x Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x. To ensure quality representation through commonality of
interests and ease of access by the representative to the constituents, all that the Constitution requires is
that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent
territory.” (Emphasis supplied).
This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional
pro-
_______________
36 Id., at pp. 1867-1868.

37 Id., at p. 1861.
38 Id., at p. 1874.
39 G.R. No. 176970, 8 December 2008, 573 SCRA 290, 309-310.
649
VOL. 617, APRIL 7, 2010 649
vincial legislative district, which does not have at least a 250,000 population is not allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.
Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support.
And the formulation of the Ordinance in the implementation of the provision, nay, even the Ordinance itself, refutes
the contention that a population of 250,000 is a constitutional sine qua non for the formation of an additional
legislative district in a province, whose population growth has increased beyond the 1986 numbers.
Translated in the terms of the present case:
The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is—based on the
formula and constant number of 250,000 used by the Constitutional Commission in nationally apportioning
legislative districts among provinces and cities—entitled to two (2) districts in addition to the four (4) that it
was given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point. 1.40In other
words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the
Province of Camarines Sur, such as that provided for in Republic Act No. 9786;
Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against
strict conformity with the population standard, and more importantly based on the final districting in the
Ordinance on considerations 2. other than population, the reapportionment or the recomposition of the first
and second legislative districts in the Province of Camarines Sur that resulted in the creation of a new
legislative district is valid even if the population of the new district is
_______________
40 Rollo, p. 4.
650
0 ANNOTATED
176,383 and not 250,000 as insisted upon by the petitioners.
The factors mentioned during the deliberations on House Bill No. 4264, were: 3.
the dialects spoken in the grouped municipalities; (a)
the size of the original groupings compared to that of the regrouped municipalities; (b)
the natural division separating the municipality subject of the discussion from the reconfigured
District One; and (c)
the balancing of the areas of the three districts resulting from the redistricting of Districts One and
Two. (d)41
_______________
41 Sen. Aquino, Mr. President, we have to respond to the last statement. The others that have been recommended
together with the Camarines Sur bill were all tested based on one standard, not separate standards for everybody. It is our
opinion and that is the source of this discussion and of this debate; that we hold that there is a 250,000-rule embodied in so
many provisions of the Constitution. Our distinguished collegue from the Bicol and Makati areas does not agree. I think
we have established that we do not agree on our interpretation of the Constitution.
With his permission, Mr. President, since I am against of his time, may we move on to the next point so as not to be
accused of delaying the passage of the bill any further?
May we ask: Why was Libmanan not considered to be a portion of the proposed first district? Because having done the
same, instead of having the 170,000-figure, we would have a 269,222 population figure.
Sen. Arroyo. All right. Look at that map.
Sen. Aquino. May we just move to another rostrum, Mr. President. We cannot view the details from this particular
rostrum, with the indulgence of our distinguished colleague.
Sen. Arroyo. x x x.
x x x x.
651
VOL. 617, APRIL 7, 2010 651
Each of such factors and in relation to the others considered together, with the increased population of the
erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less grave abuse of
discretion,42 that would warrant the invalidation of Republic Act No. 9716.
To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative
districts of Camarines Sur, the number of inhabitants in the resulting additional district should not be considered.
Our ruling is that population is not the only factor but is just one of several other factors in the composition of the
additional district.
_______________
Now, the first district of Camarines Sur is so big that it consists of 40% of the province, area-wise. Libmanan is the
biggest municipality in the entire or present first district. It stuck in the middle. We cannot move that no matter what—
because that is the biggest. Anyway, we move it left, we move it right, it would change the configuration. Those are the
practical difficulties in trying to figure out how. That is the situation. As we see, there is a water extension of the gulf. We
cannot connect them because they are separated by water. So it is no longer contiguous because it is separated by water
and there is nothing we can do about it. That is what I was saying about mathematical formula. We cannot have
mathematical formula when a natural boundary like water cannot make the municipalities contiguous. That is the picture.
It is all there.
The violet is the tagalog-speaking province. The green is the Bicol-speaking province so that is the only way to divide
it. So much has been done in the Lower House in trying to figure it out. But as long as the three Congressman do not
agree, then there is nothing we can do about it. That Representative, what the Congressman say in his district is “king”. He
is the king there, there is nothing we can do about it. We respect that.
Libmanan is the biggest one. We cannot move that anyway. (TSN, Senate Plenary Debates on H.B. No. 4264, 22
September 2009).
42 Grave abuse of discretion contemplates a situation where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility—so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined by, or to act at all in contemplation of law. (Cabrera v. COMELEC, G.R. No. 182084,
6 October 2008, 567 SCRA 686, 691).
652
2 ANNOTATED
Such settlement is in accord with both the text of the Constitution and the spirit of the letter, so very clearly given
form in the Constitutional debates on the exact issue presented by this petition.
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled “An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby
Creating a New Legislative District From Such Reapportionment” is a VALID LAW.
SO ORDERED.
Corona, Velasco, Jr., Nachura, Leonardo-De Castro, Peralta, Bersamin, Del Castillo and Mendoza,
JJ., concur.
Puno (C.J.), I join the Dissenting Opinion of J. Carpio.
Carpio, J., See Dissenting Opinion.
Carpio-Morales, J., Please see Concurring & Dissenting Opinion.
Brion, J., I join opinion of J. C.C. Morales.
Abad, J., On Official Leave.
Villarama, Jr., J., I join Justice Morales’ Concurring and Dissenting Opinion.
DISSENTING OPINION
CARPIO,J.:
I dissent. The majority opinion wreaks havoc on the bedrock principle of our “democratic and republican
State”1that
_______________
1 Section 1, Article II of the 1987 Constitution provides: “The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them.” (Emphasis supplied)
653
VOL. 617, APRIL 7, 2010 653
all votes are equal. Instead, the majority opinion introduces the Orwellian concept that some votes are more
equal than others. The majority opinion allows, for the first time under the 1987 Constitution, voters in a legislative
district created by Congress to send one representative to Congress even if the district has a population of only
176,383. In sharp contrast, all other legislative districts created by Congress send one representative each because
they all meet the minimum population requirement of 250,000.
The assailed Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly repugnant to the clear and
precise “standards” prescribed in Section 5, Article VI of the 1987 Constitution for the creation of legislative
districts. Section 5(4)2 of Article VI mandates that “Congress shall make a reapportionment of legislative
districts based on the standards” fixed in Section 5. These constitutional standards, as far as population is
concerned, are: (1) proportional representation; (2) minimum population of 250,000 per legislative district; (3)
progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in
apportionment of legislative districts “in provinces, cities, and the Metropolitan Manila area.” The assailed RA
9716 grossly violates these constitutional standards.
Legislators Represent People, Not Provinces or Cities
There was never any debate3 in the design of our government that the members of the House of Representatives,
just
_______________
2 Section 5(4), Article VI of the Constitution provides: “Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”
(Emphasis supplied)
3 The creation of the union of the United States of America was nearly aborted because of the bitter controversy in the
drafting of the US Constitution on the manner of representation to the US Con-
654
4 ANNOTATED
like the members of the Senate, represent people—not provinces, cities, or any other political unit.4 The only
difference is that the members of the Senate represent the people at large while the members of the House represent
the people in legislative districts. Thus, population—or the number of inhabitants in a district—is the essential
measure of representation in the House of Representatives. 5 Section 5(1), Article VI of the 1987 Constitution,
just like in the previous Constitutions,6 could not be any clearer:
“The House of Representatives shall be composed of x x x members, x x x, who shall be elected from
legislative districtsapportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of theirrespective inhabitants,
_______________
gress. The debate pitted, on the one hand, small States which wanted representation by State and, on the other hand, delegates
who insisted on direct representation, consistent with democratic ideals. The impasse was broken by what is popularly known as
the Great Compromise, allowing States to send two representatives to the US Senate (regardless of population) and reserving
membership in the US House of Representatives to Congressmen directly elected by the people in legislative districts based on
proportional representation. (See Wesberry v. Sanders, 376 U.S. 1 [1964].)
4 Or as a parallel ruling in another jurisdiction puts it:

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic
interests. As long as ours is a representative form of government, and our legislatures are those instruments of government
elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion
is a bedrock of our political system. (Reynolds v. Sims, 377 U.S. 533, 562 [1964].)
5 Save for those elected under the part-list system who represent sectors.
6 Substantially identical provisions are found in Section 2, Article VIII (1973 Constitution) and Section 5, Article VI (1935
Constitution).
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VOL. 617, APRIL 7, 2010 655

and on the basis of a uniform and progressive ratio x x x.” (Emphasis supplied)
Evidently, the idea of the people, as individuals, electing their representatives under the principle of “ one
person, one vote,”7 is the cardinal feature of any polity, like ours, claiming to be a “democratic and republican
State.”8 A democracy in its pure state is one where the majority of the people, under the principle of “one person,
one vote,” directly run the government.9 A republic is one which has no monarch, royalty or nobility,10 ruled by a
representative government elected by the majority of the people under the principle of “one person, one vote,” where
all citizens are equally subject to the laws.11 A republic is also known as a representative democracy. The
_______________
7 Section 1, Article V of the Constitution provides: “Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.”
8 Section 1, Article II, 1987 Constitution.
9 The 1935 and 1973 Constitutions described the Philippines as a “republican State.” During the deliberations of the
Constitutional Commission, Commissioner Adolfo Azcuna explained that the word “democratic” was added “to
emphasize that in this new Constitution there are instances where the people would act directly, and not through their
representatives.” IV Record of the Constitutional Commission, p. 735, 17 September 1986.
10 Section 31, Article VI of the 1987 Constitution provides: “No law granting a title of royalty or nobility shall be
enacted.”
11 John Adams wrote in 1787 that the “only true definition of a republic” is “a government, in which all men, rich and
poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject
to the laws.” The Founders’ Constitution, Republican Government, Chapter 4, Document 10, http://press-
pubs.uchicago.edu/founders/documents/v1ch4s10.html, accessed 3 April 2010.
656
6 ANNOTATED
democratic and republican ideals are intertwined, and converge on the common principle of equality—equality in
voting power, and equality under the law.
The constitutional standard of proportional representation is rooted in equality in voting power—that each vote
is worth the same as any other vote, not more or less. Regardless of race, ethnicity, religion, sex, occupation,
poverty, wealth or literacy, voters have an equal vote. Translated in terms of legislative redistricting, this
means equal representation for equal numbers of people 12 or equal voting weight per legislative district. In
constitutional parlance, this means representation for every legislative district “in accordance with the number of
their respective inhabitants, and on the basis of a uniform and progressive ratio” 13 or proportional
representation. Thus, the principle of “one person, one vote” or equality in voting power is inherent in proportional
representation.
It was in obedience to the rule on proportional representation that this Court unanimously struck down an
apportionment law which:
x x x gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) x x x
gave Manila four members, while Cotabato with a bigger population got three only; (c) [gave] Pangasinan
with less inhabitants than both Manila and Cotabato x x x more than both, five members having been
assigned to it; (d) [gave] Samar (with 871,857) four members while Davao with 903,224 got three only;
(e) [gave] Bulacan with 557,691 x x x two only, while Albay with less inhabitants (515,691) got three,
and (f) [gave] Misamis Oriental with 387,839 x x x one member only, while Cavite with less inhabitants
(379,904) got two.” “(a) x x x x
14
_______________
12 Wesberry v. Sanders, 376 U.S. 1, 11 [1964].

13 Section 5(1), Article VI, 1987 Constitution.
14 Macias v. Commission on Elections, No. L-18684, 14 September 1961, 3 SCRA 1, 5-6. The Court took note of the
following addition malapportionments: “These were not the only instances of unequal apportionment. We see that
Mountain Province has 3 whereas
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VOL. 617, APRIL 7, 2010 657
for being repugnant to the constitutional edict under the 1935 Constitution that the Members of the House of
Representatives “shall be apportioned among the several provinces as nearly as may be according to the number of
their respective inhabitants.”15
Section 5(1), Article VI of the 1987 Constitution is even more precise by providing that the Members of the
House “shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio
x x x.” The phrase “as nearly as may be according to the number of their respective inhabitants” in the 1935
Constitution has been changed in the 1987 Constitution to the more precise “in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio x x x.” The addition of the phrase “on
the basis of a uniform and progressive ratio” was meant to stress that the rule on proportional representation shall
apply uniformly in the apportionment of every legislative district.
The phrase “in accordance with the number of their respective inhabitants,” which precedes the phrase
“provinces, cities and the Metropolitan Manila area,” means that legislative districts in provinces, cities and the
Metropolitan Manila area shall be apportioned according to proportional representation or equal representation
for equal numbers of people. Thus, there shall be one legislative district for every given number of people, whether
inhabiting in provinces, citiesor the Metropolitan Manila area.
_______________
Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each,
whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less
inhabitants (966,145) was given 5.” (Id. at 6.)
15 Section 5, Article VI, 1935 Constitution.

658
8 ANNOTATED
The phrase “on the basis of a uniform x x x ratio” means that the ratio of one legislative district for every
given number of people shall be applied uniformly in all apportionments, whether in provinces, cities or the
Metropolitan Manila area. Section 5(3) of Article VI mandates that “[e]ach city with a population of at least two
hundred fifty thousand x x x shall have at least one representative.” Consequently, a population of 250,000
serves as the default minimum population applicable to every legislative district following the rule on uniformity in
the apportionment of legislative districts, whether in provinces, cities or in the Metropolitan Manila area.
The phrase “progressive ratio” means that the number of legislative districts shall increase as the number of the
population increases, whether in provinces, cities or the Metropolitan Manila area. Thus, a province shall have one
legislative district if it has a population of 250,000, and two legislative districts if it has 500,000. This insures that
proportional representation is maintained if there are increases in the population of a province, city, or the
Metropolitan Manila area. This is what is meant by a “progressive ratio” in the apportionment of legislative
districts, a ratio that must also be uniformly applied.
Obviously, the 1987 Constitution has laid down clear and precise standards in the apportionment of legislative
districts compared to the 1935 Constitution. What is inescapable is that the 1987 Constitution has strengthened
and tightened the requirement of uniformity in the apportionment of legislative districts, whether in provinces,
cities or the Metropolitan Manila area.
To now declare, as the majority opinion holds, that apportionment in provinces can disregard the minimum
population requirement because the Constitution speaks of a minimum population only in cities is logically flawed,
constitu-
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VOL. 617, APRIL 7, 2010 659
tionally repulsive, and fatally corrosive of the bedrock notion that this country is a “democratic and republican
State.”16 This ruling of the majority strikes a debilitating blow at the heart of our democratic and republican system
of government.
Under the majority’s ruling, Congress can create legislative districts in provinces without regard to any
minimum population. Such legislative districts can have a population of 150,000, 100,000, 50,000 or even 100, thus
throwing out of the window the constitutional standards of proportional representation and uniformity in the creation
of legislative districts. To disregard the minimum population requirement of 250,000 in provincial legislative
districts while maintaining it in city legislative districts is to disregard, as a necessary consequence, the
constitutional standards of proportional representation and uniformity in the creation of legislative districts in
“provinces, cities, and the Metropolitan Manila area.” This means that legislative districts in provinces can have a
minimum population of anywhere from 100 (or even less) to 250,000, while legislative districts in cities will always
have a minimum population of 250,000. This will spell the end of our democratic and republican system of
government as we know it and as envisioned in the 1987 Constitution.
Constitutional Standards for Reapportionment:

Population and Territory
The Constitution itself provides the “standards” against which reapportionment laws like RA 9716 will be
tested, following its command that “Congress shall make a reapportionment of legislative districts based on
the standards provided in this section,”17 referring to Section 5, Article VI. These standards relate to first,
population, and second, territory. Section 5 admits of no other standards.
_______________

17 Section 5(4), Article VI, 1987 Constitution.
660
0 ANNOTATED
On population, the standards of the 1987 Constitution have four elements. First is the rule on proportional
representation, which is the universal standard in direct representation in legislatures. Second is the rule on a
minimum population of 250,000 per legislative district, which was not present in our previous Constitutions. Thirdis
the rule on progressive ratio, which means that the number of legislative districts shall increase as the number of the
population increases in accordance with the rule on proportional representation. Fourth is the rule on uniformity,
which requires that the first three rules shall apply uniformly in all apportionments in provinces, cities and
the Metropolitan Manila area.
The Constitution18 and the Ordinance19 appended to the 1987 Constitution fixes the minimum population of a
legislative district at 250,000. Although textually relating to cities, this minimum population requirement applies
equally to legislative districts apportioned in provinces and the Metropolitan Manila area because of
the constitutional command
_______________
18 Section 5(3), Article VI provides: “Each legislative district shall comprise, as far as practicable, contiguous,
compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province,
shall have at least one representative.” (Emphasis supplied)
19 Section 3, which provides:
Any province that may hereafter be created, or any city whose population may hereafter increase to more than
two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such
number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members
apportioned to the province out of which such new province was created or where the city, whose population has so
increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred and twenty days before the election.
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VOL. 617, APRIL 7, 2010 661
that “legislative districts [shall be] apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive
ratio.” To reiterate, the Constitution commands that this rule on uniformity shall apply to legislative districts
in “provinces, cities, and the Metropolitan Manila area.”Otherwise, districts apportioned in provinces, if freed
from the minimum population requirement, will have constituencies two, four, ten times lower than in districts
apportioned in cities, violating the constitutional command that apportionment shall be based on a uniform ratio in
“provinces, cities, and the Metropolitan Manila area.”
In short, the constitutional “standards” in the apportionment of legislative districts under Section 5 of
Article VI, as far as population is concerned, are: (1) proportional representation; (2) a minimum “population
of at least two hundred fifty thousand” per legislative district; (3) progressive ratio in the increase of legislative
districts as the population base increases; and (4) uniformity in the apportionment of legislative districts in
“provinces, cities, and the Metropolitan Manila area.”
For territory, the Constitution prescribes the “standards” that a legislative district must be, “as far as practicable,
contiguous, compact, and adjacent.”
To repeat, other than population and territory, there are no other standards prescribed in Section 5 of Article
VI. This Court cannot add other standards not found in Section 5.
The Malapportionment of RA 9716 Flouts
the Constitutional Standards on Population

RA 9716 grossly malapportions Camarines Sur’s proposed five legislative districts by flouting the standards of
proportional representation among legislative districts and the minimum population per legislative district. 662
2 ANNOTATED
Based on the 2007 census, the proposed First District under RA 9716 will have a population of only
176,383, which is 29% below the constitutional minimum population of 250,000 per legislative district. In
contrast, the remaining four proposed districts have populations way above the minimum with the highest at 439,043
(proposed Third District), lowest at 276,777 (proposed Second District) and an average of 379,359. Indeed, the
disparity is so high that three of the proposed districts (Third, Fourth, and Fifth Districts) have populations more
than double that of the proposed First District. 20 This results in wide variances among the districts’ populations. Still
using the 2007 census, the ideal per district population for Camarines Sur is 338,764. 21 The populations of the
proposed districts swing from this ideal by a high of positive 29.6% (Third District) to a low of negative
47.9% (First District).22 This means that the smallest proposed district (First District) is underpopulated by
nearly 50% of the ideal and the biggest proposed district (Third District) is overpopulated by nearly 30% of
the ideal.
The resulting vote undervaluation (for voters in the disfavored districts) and vote overvaluation (for voters in the
First District) fails even the most liberal application of the constitutional standards. Votes in the proposed First
District are overvalued by more than 200% compared to votes from the Third, Fourth, and Fifth Districts and by
more than 60%
_______________
20 See note 22.

21 Based on Camarines Sur’s total population of 1,693,821.
22 The range of deviations is shown below (based on the 2007 census):
% Variation
District No. Population From Ideal
1 176,383 - 47.9
2 276,777 - 18.3
3 439,043 + 29.6
4 372,548 + 9.9
5 429,070 + 26.6

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VOL. 617, APRIL 7, 2010 663
compared to votes in the Second District. Conversely, votes from the Third, Fourth, and Fifth Districts
are undervalued by more than 200% compared to votes in the First District while those in the Second District suffer
more than 60% undervaluation.
Proportional representation in redistricting does not mean exact numbers of population, to the last digit, for
every legislative district. However, under the assailed RA 9716, the variances swing from negative 47.9% to
positive 29.6%. Under any redistricting yardstick, such variances are grossly anomalous and destructive of the
concept of proportional representation. In the United States, the Supreme Court there ruled that a variance of even
less than 1% is unconstitutional in the absence of proof of a good faith effort to achieve a mathematically exact
apportionment.23
_______________
23 Karcher v. Daggett, 462 U.S. 725 (1983). The U.S. Supreme Court declared:
Article I, § 2 establishes a “high standard of justice and common sense” for the apportionment of congressional
districts: “equal representation for equal numbers of people.” x x x. Precise mathematical equality, however, may be
impossible to achieve in an imperfect world; therefore the “equal representation” standard is enforced only t o the extent of
requiring that districts be apportioned to achieve population equality “as nearly as is practicable.” x x x As we explained
further in Kirkpatrick v. Preisler, supra:
“[T]he ‘as nearly as practicable’ standard requires that the State make a good-faith effort to achieve
precise mathematical equality. x x x. Unless population variances among congressional districts are shown to
have resulted despite such effort, the State must justify each variance, no matter how small.”
Article I, § 2, therefore, “permits only the limited population variances which are unavoidable despite a good-faith
effort to achieve absolute equality, or for which justification is shown.”
xxx
x x x Adopting any standard other than population equality, using the best census data available, x x x would
subtly erode the
664
4 ANNOTATED
Significantly, petitioner Senator Aquino’s attempt to redraw districting lines to make all five proposed
districts compliant with the minimum population requirement (and thus lessen the wide variances in population
among the districts) was thwarted chiefly for political expediency: his colleagues in the Senate deemed the existing
districts in Camarines Sur “untouchable” because “[a Congressman] is king [in his district].” 24 This shows a stark
absence of a good faith effort to
_______________
Constitution's ideal of equal representation. If state legislators knew that a certain de minimis level of population
differences were acceptable, they would doubtless strive to achieve that level rather than equality. x x x Furthermore,
choosing a different standard would import a high degree of arbitrariness into the process of reviewing apportionment
plans. x x x. In this case, appellants argue that a maximum deviation of approximately 0.7% should be
considered de minimis. If we accept that argument, how are we to regard deviations of 0.8%, 0.95%, 1%, or 1.1%?
(Citations omitted; emphasis supplied)
24 As evident in the following exchange between petitioner and Senator Joker Arroyo (Petition, pp. 23-24):
Sen. Aquino. Mr. President, we have to respond to the last statement. The others that have been recommended
together with the Camarines Sur bill were all tested based on one standard, not separate standards for everybody. It
is our opinion and that is the source of this discussion and of this debate, that we hold that there is a 250,000-rule
embodied in so many provisions of the Constitution. Our distinguished colleague from the Bicol and Makati areas
does not agree. I think we have established that we do not agree on our interpretation of the Constitution.
With his permission, Mr. President, since I am against of his time, may we move on to the next point so as not
be accused of delaying the passage of the bill any further?
May we ask: Why was Libmanan not considered to be a portion of the proposed first district? Because having
done the same, instead of having the 170,000-figure, we would have a 269,222 population figure. O achieve
Sen. Arroyo. All right. Look at that map.
Sen. Aquino. May we just move to another rostrum, Mr. President. We cannot view the details from this
particular rostrum, with the indulgence of our distinguished colleague.
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VOL. 617, APRIL 7, 2010 665
achieve a more precise proportional representation in the redistricting under the assailed RA 9716. Clearly, RA 9716
_______________
Sen. Arroyo. As I have said, the brown portion in that map of Camarines Sur—I do not know what district it is but it is
—represented by Congressman Fuentebella. He does not want this district touched. There is nothing we can do about it
since he does not want it to be touched.
The red portion is represented by Congressman Alfelor. He does not want his district to be touched. The green portion
is represented by Congressman Villafuerte. He does not also want it touched. Even if they have a pregnant populace or
inhabitants, he does not want it touched.
Now, the first district of Camarines Sur is so big that it consists of 40% of the province, area-wise. Libmanan is the
biggest municipality in the entire or present first district. It stuck in the middle. We cannot move that no matter what—
because that is the biggest. Anyway, we move it left, we move it right, it would change the configuration. Those are the
practical difficulties in trying to figure out how. That is the situation. As we see, there is a water extension of the gulf. We
cannot connect them because they are separated by water. So it is no longer contiguous because it is separated by water
and there is nothing we can do about it. That is what I was saying about mathematical formula. We cannot have
mathematical formula when a natural boundary like water cannot make the municipalities contiguous. That is the picture.
It is all there.
The violet is the Tagalog-speaking province. The green is the Bicol-speaking province so that is the only way to divide
it. So much has been done in the Lower House in trying to figure it out. But as long as the three Congressmen do not
agree, then there is nothing we can do about it. That is the power. For those of us who have served in the House of
Representative, what the Congressman says in his district is “king”. He is the king there, there is nothing we can do about
it. We respect that.
Libmanan is the biggest one. We cannot move that anyway.
Sen. Aquino. Mr. President, the question is, why not include Libmanan in the proposed first district? The proposed
first district has the towns of Del Gallego which is, I am not sure, in the northernmost tip of Camarines Sur, Ragay, Lupi,
Sipocot, they are all adjacent to each other on the map previously shown and that can
666
6 ANNOTATED
tinkers with vote valuation, and consequently with the constitutional standard of proportional representation, based
solely on the whims of incumbent Congressmen, an invalid standard for redistricting under Section 5 of Article VI.
Equally important, RA 9716 violates the minimum population requirement of 250,000 in creating the proposed
First District, which will have a population of only 176,383. The minimum population of 250,000 per legislative
district
_______________
be done. That can be reconfigured if we were just using geography and the test of territoriality.
Now, in sequel to that, the proposed second district of Magarao, Panaman (sic) and Camaligan can be placed in the
proposed second district and it will have a population of 258,000. The body of water alluded to by our distinguished
colleague, it seems in our map that the municipalities mentioned are all on the same side of the waterway. We do not see
where the issue of contiguousness comes in to play. The proposed third district, with these changes, would still be having
a population of 364,187.
The only point we are trying to raise is that if it just a question of territory and population, there seems to be other
ways of having configured these districts to enable Camarines Sur to have its entire complement of six districts. If the
answer is, that the congressmen there who are now representing Camarines Sur cannot agree on the other modes of
configuring their district, then that is another. But will our distinguished colleague agree that there is no constitutional
prohibition for us to reconfigure these districts on a different formula.
Sen. Arroyo. Mr. President, this is where the Senate must differ to the House of Representatives. Redistricting is a
local bill and it cannot emanate from the Senate. It will emanate only from the House of Representatives. This has been
debated in the House of Representatives over and over and no one could agree. So, in its wisdom, the House of
Representatives agreed to what has been presented here. If we agree now it to reconfigure it, the Senate now will be
intruding into what is purely a House of Representatives business. This is redistricting. Quite frankly, what business does
the Senate have in trying to reconfigure out the provinces when we do not represent any particular district? Only
congressmen who are familiar with their own districts can discuss this. (Emphasis supplied)
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VOL. 617, APRIL 7, 2010 667
admits of no variance and must be complied with to the last digit. The Constitution mandates a population of “at
leasttwo hundred fifty thousand” for a legislative district in a city, and under the principle of “uniform and
progressive ratio,” for every legislative district in provinces and in the Metropolitan Manila area.
Entitlement of “Each Province” to “at Least One
Representative” No Basis to Ignore Standard

of Uniform Population Ratio
The directive in Section 5(3) of Article VI that “each province, shall have at least one representative” means
only that when a province is created, a legislative district must also be created with it. 25 Can this district have a
population below 250,000? To answer in the affirmative is to ignore the constitutional mandate that districts in
provinces be apportioned “in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio.” That the Constitution never meant to exclude provinces from the requirement of
proportional representation is evident in the opening provision of Section 5(1), which states:
“The House of Representatives shall be composed of x x x members, x x x, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio x x x.” (Boldfacing and underscoring supplied)
In short, the Constitution clearly mandates that the creation of legislative districts in provinces, cities and the
Metro-
_______________
25 Thus, in Sema v. COMELEC (G.R. No. 177597, 16 July 2008, 558 SCRA 700) we struck down a statutory
provision authorizing a regional legislative assembly to create provinces because the creation of provinces entails the
creation of legislative districts which is the sole prerogative of Congress.
668
8 ANNOTATED
politan Manila area must comply with proportional representation, on the basis of a uniform and progressive
ratio.26
Apportionment in the Ordinance Appended to the
1987 Constitution Distinct from Legislative

Reapportionments
It will not do to hoist the apportionment under the Ordinance appended to the Constitution or Mariano v.
COMELEC27 and Bagabuyo v. COMELEC28 as normative props to shore up the hollow proposition that
reapportionment in provinces can dispense with the minimum population of 250,000 as prescribed in Section 5 of
Article VI. In the first place, the Constitutional Commission, exercising constituent powers, enjoyed absolute
discretion to relax the standards it textualized in Section 5, Article VI, in the interest of creating legislative
districts en masse cognizant of legitimate concerns. 29 Only the people, through the instrument of ratification,
possessed the greater sovereign power to overrule the Constitutional Commission. By overwhelmingly ratifying the
1987 Constitution, the people in the exercise of their sovereign power sanctioned the Constitutional Commission’s
discretionary judgments.
In contrast, Congress enacted RA 9716 in the exercise of its legislative powers under the 1987 Constitution
and subject
_______________
26 Although extant legislation allows creation of provinces with population of less than 250,000 (Section 461(a) of
Republic Act No. 7160), this is no reason to validate RA 9716 because Section 5(1) of Article VI trumps any statute. At
any rate, the constitutionality of Section 461(a) is not before the Court.
27 312 Phil. 259; 242 SCRA 211 (1995).
28 G.R. No. 176970, 8 December 2008, 573 SCRA 290.
29 Thus, the Constitutional Commission’s decision to relax the population threshold in Palawan, Benguet, and Baguio
and consider other standards in apportioning legislative districts in Cavite (urbanization and livelihood), Maguindanao
(political stability), and Laguna (topography), as noted in the Decision.
669
VOL. 617, APRIL 7, 2010 669
to the reapportionment standards in Section 5, Article VI of the Constitution. Congress is strictly bound by the
reapportionment standards in Section 5, unlike the Constitutional Commission which could create one-time
exceptions subject to ratification by the sovereign people. Until it enacted RA 9716, Congress never deviated from
the minimum population requirement of 250,000 in creating a legislative district. Thus, in Republic Act No. 7854
(RA 7854) which doubled the legislative districts in Makati City, the Court in Mariano v. COMELEC took note of
the certification by the National Statistics Office that at the time of the enactment of RA 7854, the population of
Makati City was 508,174, entitling it to two representatives. 30
Footnote 13 in Mariano v. COMELEC states: “As per the certificate issued by Administrator Tomas Africa
of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4,
1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city) x x x.”
Similarly, in Republic Act No. 9371 (RA 9371) which also doubled the legislative districts in Cagayan de Oro
City, the two districts created complied with the minimum population of 250,000 (254,644 and 299,322,
respectively), as the Court noted in Bagabuyo v. COMELEC.31 Contrary to the assertion of the majority opinion,
neither Mariano v. COMELEC nor Bagabuyo v. COMELEC supports the claim that Congress can create a legislative
district with a population of less than 250,000. On the contrary, these cases confirm that every legislative district
must have a minimum population of 250,000. Only very recently, this Court in Aldaba v. COMELEC32 struck down a
law creating a legisla-
_______________
30 312 Phil. 259; 242 SCRA 211 (1995).

31 G.R. No. 176970, 8 December 2008, 573 SCRA 290, 309.
32 G.R. No. 188078, 15 March 2010, 615 SCRA 564.
670
0 ANNOTATED
tive district in the City of Malolos, which has a population just short of the 250,000 minimum requirement.
RA 9716 Harbinger for Wave of Malapportionments
More than 20 years after the 1987 Constitution took effect, Congress has yet to comply with the Constitution’s
mandate that “[w]ithin three years following the return of every census, the Congress shall make a reapportionment
of legislative districts based on the standards provided in this section.” 33 Instead, Congress has contented itself with
enacting piecemeal reapportionment laws for individual areas, either for this sole purpose 34 or ancillary to the
conversion35 or creation36 of a local government unit, at the behest of legislators representing the area. As movements
of district lines spell doom or salvation for entrenched political interests, this process subjects Congress to intense
pressure to keep off certain districts.
Until RA 9716 came along, Congress was able to balance political exigency with constitutional imperatives. RA
9716 marks a tectonic shift by tilting the balance in favor of entrenched interests, sacrificing the Constitution and
ultimately, the ideals of representative democracy, at the altar of political expediency. If left unchecked, laws like
RA 9716 will fill the House of Representatives with two breeds of legislators, one, representing districts two, four,
ten times more populous than other favored districts, elected by voters holding “mickey mouse votes” and another,
representing small, favored districts, elected by voters holding “premium votes” two, four, ten times more valuable
than the votes in disfavored districts.
_______________
33 Section 5(4), Article VI.

34 E.g., RA 9371.
35 E.g., RA 7854.
36 E.g., Republic Act No. 4695 creating the provinces of Benguet, Mountain Province, Ifugao and Kalinga-Apayao
and providing for their legislative districts.
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Our oath of office as Justices of this Court forbids us from legitimizing this constitutionally abhorrent scheme, a
scheme that for the first time under the 1987 Constitution creates a new politically privileged class of legislators
in what is supposed to be a “democratic and republican State.” 37 To uphold RA 9716 is to uphold the blatant
violation of the constitutional standards requiring proportional representation and a minimum population in the
creation of legislative districts. This will derail our one person, one vote representative democracy from the tracks
clearly and precisely laid down in the 1987 Constitution.
And for what end—to create a special class of legislative districts represented by a new political elite exercising
more legislative power than their votes command? Such a grant of privileged political status is the modern day
equivalent of a royalty or nobility title, which is banned under the 1987 Constitution. History will not be kind to
those who embark on a grotesquely anomalous constitutional revision that is repulsive to our ideals of a “democratic
and republican State.”
The ruling of the majority today could sound the death knell for the principle of “one person, one vote” that
insures equality in voting power. All votes are equal, and there is no vote more equal than others. This equality in
voting power is the essence of our democracy. This Court is supposed to be the last bulwark of our democracy.
Sadly, here the Court, in ruling that there are some votes more equal than others, has failed in its primordial
constitutional duty to protect the essence of our democracy.
Accordingly, I vote to GRANT the petition and to DECLARE UNCONSTITUTIONAL Republic Act No. 9716
for grossly violating the standards of proportional representation and minimum population in the creation of
legislative districts as prescribed in Section 5, Article VI of the 1987 Constitution.
_______________

672
2 ANNOTATED
CARPIO-MORALES,J.:
I concur with the ponencia’s discussion on the procedural issue.
“Transcendental importance” doctrine aside, petitioners have the requisite locus standi. Petitioners are suing not
only as lawmakers but as taxpayers and citizens as well. At the initiative of a taxpayer, a statute may be nullified, on
the supposition that expenditure of public funds for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds.1 Republic Act No. 9716 (R.A. 9716) mandates the creation of another legislative
district and indubitably involves the expenditure of public funds.
I DISSENT, however, on the ponencia’s conclusion, on the substantive issue, that a population of 250,000 is not
an indispensable constitutional requirement for the creation of a new legislative district in a province.
Contrary to the ponencia’s assertion, petitioners do not merely rely on Article VI, Section 5 (3) but also on
Section 5 (1) of the same Article.2 Both provisions must be read together
_______________
1 Pascual v. Secretary of Public Works, 110 Phil. 331, 342-343 (1960).

2 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area Section in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations.
x x x x (2)
Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each (3)
673
VOL. 617, APRIL 7, 2010 673
in light of the constitutional requirements of population and contiguity.
Section 5 (3) of Article VI disregards the 250,000 population requirement only with respect to existing
provinces whose population does not exceed 250,000 or to newly created provinces under the Local Government
Code (as long as the income and territory requirements are met).
The ponencia misinterprets Mariano v. Comelec.3 The actual population of the City of Makati during the Senate
deliberations in 1994 on House Bill (H.B.) No. 4264 that was to be enacted into R.A. No. 7854 was 508,174.4 That is
why the Court in Mariano declared:
“Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
Section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city
with a population of at least two hundred fifty thousand(250,000) shall have at least one
representative. Even granting that the population of Makati as of the 1990 census stood at four hundred
fifty thousand (450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance
appended to the Constitution provides that a city whose population has increased to more than two
hundred fifty thousand (250,000) shall be entitled to at least one congressional
representative.” (emphasis in the original)
5
_______________
city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.
3 312 Phil. 259 (1995).
4 Id., at p. 272 at footnote 13 which reads: As per the certificate issued by Administrator Tomas Africa of the National
Census and Statistics Office, the population of Makati as of 1994 stood at 508, 174 x x x.
5 Id., at pp. 272-273.
674
4 ANNOTATED
Nothing in Mariano reflects that the Court disregarded the 250,000 population requirement as it merely stated
that Makati’s legislative district may still be increased as long as the minimum population requirement is met. The
permissive declaration at that time presupposes that Makati must still meet the constitutional requirements before it
can have another congressional district.
The Local Government Code likewise is not in point since Section 461 thereof tackles the creation of a province
and not the reapportioning of a legislative district based on increasing population. There is thus no point in asserting
that population is merely an alternative addition to the income requirement.
The ponencia likewise misinterprets Bagabuyo v. Comelec.6 Notably, the ponencia spliced that portion of the
decision in Bagabuyo which it cited to suit its argument. Thus the ponencia quotes:
“x x x Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x To ensure quality representation through commonality of
interests and ease of access by the representative to the constituents, all that the Constitution requires is
that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent
territory.” (emphasis and underscoring in the original by the ponente)
It omitted that portion which specified the respective total population of the two districts as above 250,000. Thus
the full text of the pertinent portion of the decision reads:
“The petitioner, unfortunately, did not provide information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office
which shows that barangays comprising Cagayan de
_______________
6 573 SCRA 290 (2008).
676

6 ANNOTATED
Oro’s first district have a total population of 254,644 while the second district
has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts.
The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x” (emphasis and underscoring supplied)
The two legislative districts of Cagayan de Oro subject of Bagabuyo met the minimum population requirement
at the time of reappportionment. The ponencia’s construal of the disparity in population sizes of the districts
involved in Bagabuyo clearly differs from the disparity of population in the present case.
The Record of the Constitutional Commission itself declares that the 250,000 benchmark was used in
apportioning the legislative districts in the country. The sponsorship speech of Commissioner Hilario Davide,
Jr.7reflects so.
“x x x x. Each legislative district shall comprise, as far as practicable, contiguous, compact and
adjacent territory. EACH CITY OR EACH PROVINCE WITH A POPULATION OF AT LEAST
250,000 SHALL HAVE AT LEAST ONE REPRESENTATIVE. This is Section 5 of the Article on the
Legislative. x x x x The ordinance fixes at 200 the number of legislative seats which are, in turn,
apportioned among the provinces and cities with a population of at least 250,000and the Metropolitan
Manila area in accordance with the number of their respective inhabitants on the basis of a uniform and
progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration
as the point of reckoning. This projection indicates that our population is more or less 56
million. Taking into account the mandate that each city with at least 250,000 inhabitants and each
province shall have at least one representative, we at first allotted one seat for each of the 73 provinces;
and one each for all cities with a population of at least 250,000, which are the Cities of Manila, Quezon,
Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then
proceeded to increase when-
_______________
7 RECORD OF THE CONSTITUTIONAL COMMISSION, Vol. V, p. 949.
676

6 ANNOTATED
ever appropriate the number of seats for the provinces and cities in accordance with number of
their inhabitants on the basis of a uniform and progressive ratio. x x x x. (capitalization, emphasis,
italics and underscoring supplied)
The framers of the Constitution intended to apply the minimum population requirement of 250,000 to both cities
and provinces in the initial apportionment, in proportion to the country’s total population at that time (56 million).
Yet the ponencia asserts that the 250,000 benchmark was used only for the purpose of the 1986 initial
apportionment of the legislative districts, and now disregards the benchmark’s application in the present petition. It
is eerily silent, however, on what the present population yardstick is. If the present estimated population of 90
million is to be the dividend,8 then there would roughly be one legislative district representative for every 450,000.
Following the constitutional mandate, the population requirement cannot fall below 250,000. This is the average
“uniform and progressive ratio” that should prevail. Thus, using the present population figure, the benchmark
should be anywhere between 250,000-450,000 persons per district. Using anything less than 250,000 is illogical, for
it would operate to allow more than 360 representatives of legislative districts alone on some capricious basis other
than the variable of population.
A case in point is the congressional reapportionment done in the provinces of Sultan Kudarat and Zamboanga
Sibugay effected through Republic Act No. 93579 and Republic Act No.
_______________
8 As of August 2007, the official population was 88,574,614 Filipinos. The population count was made official with
the signing by President Gloria Macapagal-Arroyo of Proclamation No. 1498 on April 16, 2008.
9 Entitled “AN ACT REAPPORTIONING THE PROVINCE OF SULTAN KUDARAT INTO TWO LEGISLATIVE DISTRICTs”
and passed on October 10, 2006.
677
VOL. 617, APRIL 7, 2010 677
9360,10 respectively. At the time of the congressional deliberations and effectivity of these laws, the population count
in these provinces more than met the basic standard. Sultan Kudarat already had a population of 522,187 during the
1995 census year,11 while Zamboanga Sibugay met the population threshold in 2001 with an estimated 503,700
headcount.12
The ponencia sweepingly declares that “population was explicitly removed as a factor.” 13 Far from
it. Population remains the controlling factor. From the discussions in the initial apportionment and districting of
Puerto Princesa, Baguio, Cavite, Laguna, Maguindanao and Cebu in 1986, it is clear that population and contiguity
were the primary considerations, and the extraneous factors considered were circumspectly subsumed thereto.
The ponencia harps on petitioners’ admission that Camarines Sur is actually entitled to SIX legislative districts,
given its population of 1,693,821, to justify its conclusion that there is nothing wrong in the creation of another
legislative district in the province. This is a wrong premise. It bears noting that petitioners raised the legislative
entitlement to underscore the GRAVE ABUSE OF DISCRETION committed in the enactment of R.A. 9716.
R.A. 9716 created one legislative district by reconfiguring the first and second districts. It did not, however,
touch the
_______________
10 Entitled “AN ACT CREATING ANOTHER CONGRESSIONAL DISTRICT IN THE PROVINCE OF ZAMBOANGA SIBUGAY,
AMENDING FOR THE PURPOSE [Ra No. 8973], OTHERWISE KNOWN AS THE CHARTER OF THE PROVINCE OF ZAMBOANGA
SIBUGAY” and passed on July 24, 2006.
11 http://www.census.gov.ph/data/census2007/index.html. Last visited March 30, 2010.
12 http://www.census.gov.ph/data/census2007/index.html. Last visited March 30, 2010. Zamboanga Sibugay’s
population during the 2000 Census was at 497,239 with an annual growth rate of 1.30%. Thus, the following year (2001),
the province met the 500,000 minimum requirement.
13 Decision, p. 20.
678
8 ANNOTATED
third and fourth districts which, when properly reapportioned, can easily form another district. No reasons were
offered except Senator Joker Arroyo’s during the Senate Plenary Debates on H.B. No. 4264, viz: “When it comes to
their district, congressmen are kings. We cannot touch them. He [referring to Rep. Villafuerte] does not also want it
[referring to the district of Rep. Villafuerte] touched... even if they have a pregnant populace or inhabitants, he does
not want it touched.”14
The resulting population distribution in the present case violates the uniform and progressive
ratio prescribed in the Constitution.
Prior to the enactment of R.A. No. 9716, the tally of population percentage per district in Camarines Sur based
on its population of 1,693,821 was as follows:
District 1: 24.6%
District 2: 28.03%
District 3: 21.99%
District 4: 25.33%
Compare now the population percentage per district afterthe passage of R.A. 9716:
District 1: 10.4%
District 2: 16.34%
District 3: 25.9%
District 4: 21.99% (former District 3)
District 5: 25.33% (former District 4)
Remarkably, before R.A. No. 9716, the first district met the 250,000 minimum. After R.A. No. 9716, it suffered
a very significant drop in its population from 416,680 to 176,157.
_______________
14 TSN, Senate Plenary Debates, H.B. 4264, September 22, 2009.

679
VOL. 617, APRIL 7, 2010 679
The extraneous factors15 cited by the ponencia do not suffice to justify the redistricting, particularly the inclusion
of the municipality of Libmanan in the second district. Linguistic difference is a weak basis to segregate the
municipalities in the redistricting. To sanction that as basis would see a wholesale redistricting of the entire country,
given the hundreds of dialects being spoken. Imagine Binondo being segregated from the Tagalog-speaking district
of Tondo or Sta. Cruz in Manila on the ground that Fookien is largely spoken in Binondo.
The former first district supposedly occupied 40% of the total land area of Camarines Sur. But the former fourth
district (which is now the fifth) comprises the same percentage of land area, if not bigger. If land area was a factor,
then the former fourth district should have been re-districted also since it is endowed with a big area like the former
first district.
The municipality of Libmanan is supposedly isolated by a body of water from the first district. But so is the
municipality of Cabusao which is situated northeast of Libmanan and which is bordered by the same body of water.
Yet Cabusao is part of the new first district. Considering the similar geographical location of the two municipalities,
there is no compelling reason to segregate Libmanan from the first district and tack it to the newly created second
district.
The seminal case of Reynolds v. Sims16 had already ruled that these factors cannot be permissively considered in
legislative reapportionment.
“x x x Population is, of necessity, the starting point for consideration and the controlling criterion for
judgment in legislative apportionment controversies. x x x [We] hold that, as a basic consti-
_______________
15 Decision, p. 23. These are dialects spoken, size of the original groupings, natural division of the Municipality of
Libmanan from the reconfigured first district and the balancing of the areas of the first three districts.
16 377 U.S. 533 (1964).
680

0 ANNOTATED
tutional standard, [equal protection] requires that the seats in both houses of a bicameral state legislature
must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators
is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with
votes of citizens living in other parts of the [State].
xxxx
[Equal protection] requires that a State make an honest and good faith effort to construct districts, in
both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a
practical impossibility to arrange legislative districts so that each one has an identical number of
residents, citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional
requirement. So long as the divergences from a strict population principle are constitutionally
permissible, but neither history alone, nor economic or other sorts of group interests, are
permissible factors in attempting to justify disparities from population-based
representation. Citizens, not history or economic interests, cast votes. Considerations of area alone
provide an insufficient justification for deviations from the equal-population principle. Again,
people, not land or trees or pastures, vote. x x x” (emphasis and underscoring supplied)
Undoubtedly, Camarines Sur’s malapportionment largely partakes of gerrymandering.17
A final word. By pronouncing that “other factors,” aside from population, should be considered in the
composition of additional districts, thereby adding other requisites despite the Constitution’s clear limitation to
population and contiguity, the ponencia effectively opens the floodgates to opportun-
_______________
17 A name given to the process of dividing a state or other territory into the authorized civil or political divisions, but
with such a geographical arrangement as to accomplish an ulterior or unlawful purpose, as, for instance, to secure a
majority for a given political party in districts where the result would be otherwise if they were divided according to
obvious natural lines. (Black’s Law Dictionary, 5th Ed., p. 618).
681
VOL. 617, APRIL 7, 2010 681
istic lawmakers to reconfigure their own principalia and bantam districts. Leaving open Section 5 of Article VI to
arbitrary factors, such as economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-
for-all.
In light of the foregoing, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL Republic
Act No. 9716.
Petition dismissed.
Notes.—In St. Martin Funeral Homes vs. National Labor Relations Commission, 356 Phil. 811; 295 SCRA 494
(1998), it was held that the special civil action of certiorari is the mode of judicial review of the decisions of the
NLRC either by the Supreme Court or the Court of Appeals, although the latter court is the appropriate forum for
seeking the relief desired in strict observance of the doctrine on the hierarchy of courts and that, in the exercise of its
power, the Court of Appeals can review the factual findings or the legal conclusions of the NLRC. (Oriental
Petroleum and Minerals Corporation vs. Fuentes, 473 SCRA 106 [2005])
Legislative apportionment is defined by Black’s Law Dictionary as the determination of the number of
representatives which a State, county or other subdivision may send to a legislative body. It is the allocation of seats
in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population
and voting power among the districts. Reapportionment, on the other hand, is the realignment or change in
legislative districts brought about by changes in population and mandated by the constitutional requirement of
equality of representation. (Bagabuyo vs. Commission on Elections, 573 SCRA 290 [2008])
The general rule is that a party is mandated to follow the hierarchy of courts, but, in exceptional cases, the Court,
for compelling reasons or if warranted by the nature of the issues raised, may take cognizance of petitions filed
directly before it, such as one involving the application of the rules promul-
682

2 ANNOTATED
gated by this Court in the exercise of its rule-making power under the Constitution. (Marimla vs. People, 604 SCRA
57 [2009])
——o0o——
EN BANC
[G.R. No. 108251. January 31, 1996]
CEFERINO S. PAREDES, JR. and MANSUETO J.

HONRADA, petitioners, vs. THE HONORABLE
SANDIGANBAYAN, Second Division; HONORABLE ANIANO
DESIERTO, in his official capacity as Special Prosecutor;
HONORABLE CONRADO M. VASQUEZ, in his official capacity as
Ombudsman; and TEOFILO GELACIO, respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION; MAY BE INITIATED AND CONCLUDED BY
DIFFERENT INVESTIGATORS. - Petitioners contend that the filing of
charges against them was not recommended by the prosecutor who
conducted the preliminary investigation, but by another one who, it is
alleged, had no part at all in the investigation. There is no basis for
petitioners claim that the resolution was prepared by one who did not take
any part in the investigation. What happened here is similar to the trial of a
case by one judge who, without being able to finish the hearing, ceases
from office for one reason or another and by necessity the decision is
rendered by another judge who has taken over the conduct of the case.
Such an arrangement has never been thought to raise any question of due
process. For what is important is that the judge who decides does so on
the basis of the evidence in record. It does not matter that he did not
conduct the hearing of that case from the beginning.
2. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; CERTIFICATE; VALUE
NOT DIMINISHED BY FAILURE TO ANTICIPATE THAT HIS
CERTIFICATE WOULD BE USED IN EVIDENCE. - That Violan gave
credence to the Certification of Judge Ario in concluding that no
arraignment had been held in Criminal Case No. 1393 is not proof that
Violan was biased against petitioners. Although Judge Ario subsequently
gave an Affidavit, he never in that Affidavit repudiated what he had earlier
stated. Judge Ario never denied his earlier Certification that Criminal Case
No. 1393 never reached the arraignment stave, because having learned
that Paredes, Jr. had petitioned the Ministry of Justice for a review of the
fiscals resolution, Judge Ario suspended action until March 17, 1986 and
in fact the fiscal later moved for the dismissal of the case. The fact that
Judge Ario did not anticipate that his certificate might be used in evidence,
much less in the criminal cases now pending in the Sandiganbayan, is not
a reason to disregard it. The fact is that Judge Ario did not retract his
previous Certification that there was no arraignment held in Criminal Case
No. 1393. If that is the truth, then the fact that he now says he did not
anticipate that his certificate would be used in evidence in any case would
not diminish a whit the value of the certificate.
3. ID.; EVIDENCE; ADMISSIBILITY; RETRACTION OF AFFIDAVIT MADE
IN VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, INADMISSIBLE.
- There is nothing in the resolution of Violan which shows that she based
her conclusion (that petitioners were probably guilty of falsification of
public documents) on Atty. Sansaets retraction. In her resolution, all that
she stated is that the confession of Atty. Sansaet has important bearing in
this case. Otherwise she did not cite the confession as proof of the
falsification of public documents. To the contrary, Violan thought that the
retraction was made in violation of attorney-client privilege and therefore,
would be inadmissible in evidence. Violan could not, therefore, have relied
on the affidavit of retraction.
4. ID.; DISQUALIFICATION OF JUDGES; DIVERGENCE OF OPINIONS
BETWEEN A JUDGE AND A PARTYS COUNSEL, NOT A GROUND.
- Mere divergence of opinions between a judge and a partys counsel as to
applicable laws and jurisprudence is not sufficient ground for disqualifying
the judge from hearing the case on the ground of bias and partiality.
5. ID.; ACTIONS; MERE FILING OF SEVERAL CASES BASED ON THE
SAME INCIDENT, NOT FORUM-SHOPPING; TEST. - The mere filing of
several cases based on the same incident does not necessarily constitute
forum-shopping. The test is whether the several actions filed involve the
same transactions, essential facts, and circumstances.
6. ID.; ID.; ID.; CASES INVOLVING SUBSTANTIALLY DIFFERENT
TRANSACTIONS, FACTS AND CIRCUMSTANCES, NOT FORUM
SHOPPING; CASE AT BAR. - Here, although several cases were filed by
the same complainant against the same defendant and the subject matter
of the actions of two of the cases was the same incident (i.e., the
application for free patent of petitioner Ceferino Paredes, Jr.), the fact is
that the several cases involve essentially different facts, circumstances
and causes of action. Thus, Criminal Case No. 1393, which was filed in
the MCTC of San Francisco,. Agusan del Sur, was for perjury, based on
false statements allegedly made in 1975 by petitioner Paredes, Jr. in
connection with his free patent application. Criminal Case No. 13800,
which was filed in the Sandiganbayan, although based on the filing of the
same application for free patent, was for violation of the Anti-graft and
Corrupt Practices Act, on the allegation that petitioner, as Provincial
Attorney, had unduly influenced the Public Land Inspector to secure the
approval of his free patent application. On the other hand, as already
stated, the present cases (Criminal Case Nos. 17791, 17792 and 17793)
are for falsification of court records pertaining to Criminal Case No. 1393.
A.P. Case No. P-90-396 is an administrative case against petitioner
Honrada based on the same incident and facts that are subject of the
preceding criminal cases. The rest are incidents of these cases, being the
petition for review and motions for reconsideration ifl Criminal Case No.
13800 and A.P. Case No. P-90-396. Thus the present cases involve
substantially different transactions, facts and circumstances from those
involved in the other, though related, cases. Although they arose from the
same incident, i.e., petitioners public land application, they involve
different issues. It is well settled that a single act may offend against two
or more distinct and related provisions of law or that the same act may
give rise to criminal as well as administrative liability. As such, they may be
prosecuted simultaneously or one after another, so long as they do not
place the accused in double jeopardy of being punished for the same
offense.
7. ID.; CRIMINAL PROCEDURE; DISMISSAL OF ADMINISTRATIVE
COMPLAINT DOES NOT NECESSARILY BAR FILING OF CRIMINAL
PROSECUTION. - Petitioners call attention to the fact that the
administrative complaint against petitioner Honrada was dismissed. They
invoke our ruling in Maceda v. Vasquez that only this Court has the power
to oversee court personnels compliance with laws and take the
appropriate administrative action against them for their failure to do so and
that no other branch of the government may exercise this power without
running afoul of the principle of separation of powers. But one thing is
administrative liability. Quite another thing is the criminal liability for the
same act. Our determination of the administrative liability for falsification of
public documents is in no way conclusive of his lack of criminal liability. As
we have held in Tan v. Comelec, the dismissal of an administrative case
does not necessarily bar the filing of a criminal prosecution for the same or
similar acts which were the subject of the administrative complaint.
8. ID.; ID.; POLITICALLY MOTIVATED FILING OF CRIMINAL CHARGE
CANNOT JUSTIFY PROHIBITION OF CRIMINAL PROSECUTION IF
THERE IS EVIDENCE TO SUPPORT IT. - That the filing of the charges is
politically motivated cannot justify the prohibition of a criminal prosecution
if there is otherwise evidence to support them. Here a preliminary
investigation of the complaint against petitioners was held during which
petitioners were heard. Their evidence, as well as that of private
respondent Gelacio, was considered in great detail in the resolution of GIO
II Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo
Querubin who made his own detailed resolution concurring in the finding
of Violan. We cannot say that, in approving the resolutions of two
investigators, the respondent Ombudsman and Special Prosecutor
committed an abuse of their discretion.
9. ID.; ID.; PRELIMINARY INVESTIGATION; PURPOSE. - A preliminary
investigation is not a trial. The function of the government prosecutor
during the preliminary investigation is merely to determine the existence of
probable cause.
10. ID.; ID.; POLITICAL HARASSMENT; REQUISITES; CASE AT BAR. - To
warrant a finding of political harassment so as to justify the grant of the
extraordinary writs of certiorari and prohibition, it must be shown that the
complainant possesses the power and the influence to control the
prosecution of cases. Here, the prosecution is handled by the Office of the
Ombudsman. Although it is intimated that petitioner Ceferino S. Paredes,
Jr. is the subject of persecution by his political enemies in Agusan del Sur,
it has not been alleged, much less shown, that his enemies have influence
and power over the national prosecution service. To show political
harassment petitioners must prove that public prosecutor, and not just the
private complainant, is acting in bad faith in prosecuting the case or has
lent himself to a scheme that could have no other purpose than to place
the accused in contempt and disrepute. For it is only if he does so may the
prosecutor, in conducting the preliminary investigation, be said to have
deserted the performance of his office to determine objectively and
impartially the existence of probable cause and thus justify judicial
intervention in what is essentially his province.
APPEARANCES OF COUNSEL
Rolando A. Suarez & Associates for petitioners.
Esmeraldo I. Guloy for private respondent.
DECISION
MENDOZA, J.:
This is a petition for certiorari, prohibition and injunction, seeking to set

aside the resolution dated December 9, 1992 of the Office of the
Ombudsman, denying petitioners motion for the reinvestigation of three cases
of falsification of public documents which had been filed against petitioners
and to restrain the Second Division of the Sandiganbayan from hearing the
cases.
The cases originated in a complaint filed on January 23, 1990 by Teofilo
Gelacio, then vice mayor of San Francisco, Agusan del Sur. Charged with
petitioner Paredes, Jr., who was then the provincial governor, were petitioner
Mansueto J. Honrada, clerk of court of the Municipal Circuit Trial Court of San
Francisco, Agusan del Sur, and Atty. Generoso Sansaet, counsel of petitioner
Paredes, Jr. in Criminal Case No. 1393 of the MCTC.
In his complaint Gelacio alleged that MCTC clerk of court Honrada, in
conspiracy with petitioner Paredes, Jr. and the latters counsel Atty. Sansaet,
certified as true a copy of a Notice of Arraignment dated July 1, 1985 and of
the Transcript of Stenographic Notes on July 9, 1985, showing that an
arraignment had been held in Criminal Case No. 1393 and issued a
certification dated March 24, 1986 to that effect when in truth no arraignment
had been held in that case. In support of his allegation, Gelacio submitted a
Certification issued by Judge Ciriaco C. Ario of the MCTC to the effect that
Criminal Case No. 1393 had never reached the arraignment stage before it
was dismissed on motion of the prosecution. 1
A preliminary investigation of the complaint was conducted by Public

Prosecutor Albert Axalan who had been deputized to assist the Deputy
Ombudsman for Mindanao. Petitioners and Atty. Sansaet, as respondents in
the case, filed their respective counter-affidavits. Paredes, Jr. denied the
charges. He alleged that their filing was politically motivated and that the
complainant, Teofilo Gelacio, was being used by his political enemies to
harass him. For his part, Honrada maintained that an arraignment had indeed
been held in Criminal Case No. 1393 as certified by him. His claim was
corroborated by Atty. Generoso Sansaet, who stated in an affidavit that he
was present during the arraignment, being the counsel of Paredes, Jr.
Sansaet called Judge Arios Certification, denying that there was an
arraignment, the product of a faltering mind.2
Prosecutor Axalan submitted his resolution to the Deputy Ombudsman
for Mindanao, but before it could be acted upon, Atty. Sansaet, one of the
respondents, retracted his earlier statement to the effect that Paredes, Jr. had
been arraigned before the case against him was dismissed. In an Affidavit of
Explanations and Rectifications dated July 29, 1991, Sansaet claimed that
there was really no arraignment held in Criminal Case No. 1393 and that
Honrada made false certifications which were used to support the dismissal
(on the ground of double jeopardy) of Criminal Case No. 13800 which was
then pending against Paredes, Jr. in the Sandiganbayan. 3
As a result of this development, Paredes, Jr. and Honrada, were required

to comment. Paredes, Jr. claimed that the Sansaets aboutface was the result
of their political estrangement. For his part Honrada insisted that an
4
arraignment in Criminal Case No. 1393 had indeed been held and that in
making the certifications in question he stated the truth.
On the basis of the evidence of the parties, Gay Maggie Balajadia-Violan,
Graft Investigation Officer of the Office of the Deputy Ombudsman,
recommended on February 24, 1992 that petitioners and Atty. Sansaet be
charged with Falsification of Public Documents. Her recommendation was
indorsed by Deputy Ombudsman Cesar Nitorreda to Ombudsman Conrado
Vasquez, Who, upon the recommendation of Erdulfo Querubin of the Office of
the Special Prosecutor, approved the filing of three informations for
falsification of public documents against Paredes, Jr., Honrada and Sansaet
with the Sandiganbayan. The cases were docketed as Criminal Case Nos.
5
17791, 17792 and 17793.

On July 9, 1992, petitioners moved to quash the informations. Their
motion was denied by the Sandiganbayan in its resolution of August 25, 1992,
as was the motion for reconsideration they subsequently filed.
Petitioners next moved for a reinvestigation of the cases. They complained
(1) that the resolution, recommending the filing of the cases, was not prepared
by Public Prosecutor Axalan, who had conducted the preliminary
investigation, but by GIO II Gay Maggie Balajadia-Violan, who allegedly had
no hand in the investigation; (2) that Violan relied solely on the retraction of
Atty. Generoso Sansaet and the Certification of Judge Ciriaco C. Ario and
disregarded evidence in favor of petitioners; and (3) that Prosecutor Erdulfo
Q. Querubin, who reviewed Violans recommendation, could not be expected
to act fairly because he was the prosecutor in Criminal Case No. 13800 in
connection with which the allegedly falsified records were used and in fact
appealed the dismissal of the case to this Court.6
Although these grounds were the same ones invoked by petitioners in
their motion to quash, which the Sandiganbayan had denied, the
Sandiganbayan nonetheless directed the prosecution to conduct a
reinvestigation of the cases. Accordingly, the Office of the Ombudsman
required complainant, the herein respondent Teofilo Gelacio, to comment on
petitioners Motion for Reinvestigation.
In a resolution dated December 9, 1992, Special Prosecution Officer
Carlos D. Montemayor recommended denial of petitioners motion. He noted
that the matters raised in the motion were the same ones contained in
petitioners motion to quash which had already been denied and that in fact a
cursory examination of the resolution of GIO II Gay Maggie Balajadia-Violan
shows that the existence of a prima facie case has been duly established and
the same was reviewed by SPO III Erdulfo Querubin and also the approval of
Honorable Conrado M. Vasquez. He held that as no newly-discovered
evidence or denial of due process had been shown, there was no basis for
petitioners request for a reinvestigation.
Montemayors recommendation was approved by Special Prosecutor
Aniano Desierto and Ombudsman Conrado Vasquez. Accordingly the
Sandiganbayan set the cases for trial.
The present petition for certiorari, prohibition and injunction was then filed
to enjoin the trial of the criminal cases. Petitioners pray that:
(1) Upon the filing of this petition and before its final resolution, to issue a temporary
restraining order immediately ordering the Sandiganbayan, Second Division, to cease
and desist from proceeding with the scheduled hearing of this case;
(2) After due hearing, to adjudge that respondents Honorable Special Prosecutor
Aniano A. Desierto and Honorable Ombudsman Conrado M. Vasquez have
committed grave abuse of discretion, amounting to lack of jurisdiction, in issuing and
approving the questioned resolution dated December 9, 1992 and ordering said
resolution denying petitioners motion for reinvestigation be annulled and set aside;
(3) To adjudge that the Sandiganbayan, Second Division, is without jurisdiction to try
Criminal Case Nos. 17791, 17792, and 17793 all of which are apparently intended as
political harassments against the herein petitioners, particularly as against Ceferino S.
Paredes, Jr., and prohibiting the said court from proceeding (with) the hearing of the
said cases on January 15, 1993, and likewise ordering the said court to dismiss the
said cases, with costs against respondents and Teofilo Gelacio; and
(4) To issue a writ of injunction, thereby making the restraining order permanent, and
prohibiting the respondents and complainant Teofilo Gelacio from committing any act
or acts tending to harass and to inflict further damage and injury to petitioners, such as
but not limited to the continuation and further prosecution of said Criminal Cases Nos.
17791, 17792, and 17793.
Petitioners contend (1) that their constitutional right to due process was
violated at various stages of the preliminary investigation; (2) that the
prosecutors closed their eyes to the fact that in filing the cases private
respondent Teofilo Gelacio engaged in forum-shopping; and (3) that the cases
were filed for political harassment and there is in fact no prima facie evidence
to hold them answerable for falsification of public documents. 7
I.
Anent the first ground, petitioners contend that the filing of charges against
them was not recommended by the prosecutor who conducted the preliminary
investigation, but by another one who, it is alleged, had no part at all in the
investigation.
Petitioners contention has no basis in fact. It appears that the preliminary
investigation of the complaint filed by Teofilo Gelacio was initially conducted
by Public Prosecutor Albert Axalan who had been deputized to assist the
Deputy Ombudsman for Mindanao in the investigation of graft cases. Axalan
prepared a resolution. The records do not show what his recommendation
was. What is clear, however, is that no action had been taken on his
recommendation in view of the fact that Atty. Generoso Sansaet, one of the
respondents in the cases, retracted an earlier statement he had given to the
effect that petitioner Ceferino S. Paredes, Jr. had been arraigned in Criminal
Case No. 1393 before the case was dismissed. Atty. Sansaet now claimed
that no arraignment had been held after all. This new development required
the reopening of the investigation (in fact Paredes, Jr. and Honrada were
required to comment on the retraction), the reevaluation of the evidence, and
the preparation of a new resolution. Gay Maggie Balajadia-Violan, Graft
Investigation Officer II of the Office of the Deputy Ombudsman for Mindanao,
was designated to conduct the investigation and prepare a report, which she
did.
Violans recommendation was indorsed by Deputy Ombudsman Cesar
Nitorreda to Ombudsman Conrado Vasquez, who then referred the matter to
Special Prosecution Officer Ill Erdulfo Querubin for review. Querubin
concurred in the recommendation of Violan but suggested that, instead of
one, three separate informations for falsification of public documents be filed
against respondents (Paredes, Jr., Honrada and Sansaet), considering that
three documents were involved.
On June 26, 1992, Ombudsman Conrado Vasquez approved the
recommendations of Violan and Querubin. Accordingly three cases were filed
against petitioners with the Sandiganbayan, where they were docketed as
Criminal Case Nos. 17791, 17792 and 17793.
There is thus no basis for petitioners claim that the resolution was
prepared by one who did not take any part in the investigation. What
happened here is similar to the trial of a case by one judge who, without being
able to finish the hearing, ceases from office for one reason or another and by
necessity the decision is rendered by another judge who has taken over the
conduct of the case. Such an arrangement has never been thought to raise
any question of due process. For what is important is that the judge who
decides does so on the basis of the evidence in record. It does not matter that
he did not conduct the hearing of that case from the beginning.
Petitioners nonetheless charge that GIO II Violan and Prosecutor
Querubin did not have such cold neutrality of an impartial judge to be trusted
to conduct a fair investigation. According to petitioners, Violan gave credence
to the Certification issued by Judge Ciriaco C. Ario when the fact is that Judge
Ario subsequently executed an affidavit, dated November 5, 1990, in which he
explained that he issued the said certificate without expectation that the same
would be used as evidence in any case and that the use of said certificate . . .
is against [his] conscience. Worse, it is contended, Violan considered the
Affidavit of Explanations and Rectifications executed by Atty. Sansaet, which
she should have disregarded because it was made in violation of the
confidentiality of attorney-client communication under Rule 130, 24 (b) of the
Rules of Court. As for Prosecutor Querubin, they claim that he is the same
prosecutor who had handled the prosecution of Criminal Case No. 13800
against petitioner Paredes, Jr. in the Sandiganbayan and after its dismissal,
sought review in this Court and, therefore, he was biased against petitioners.
That Violan gave credence to the Certification of Judge Ario in concluding
that no arraignment had been held in Criminal Case No. 1393 is not proof that
Violan was biased against petitioners. Although Judge Ario subsequently gave
an Affidavit, he never in that Affidavit repudiated what he had earlier stated. In
his Affidavit he merely stated:
1. That I am the incumbent Municipal Circuit Trial Court Judge in the First Municipal
Circuit Trial Court of San Francisco-Rosario-Bunawan, Agusan del Sur;
2. That I am the same Ciriaco C. Ario who issued a certificate in Criminal Case No.
1393 entitled Pp. vs. Ceferino S. Paredes, Jr. which certificate was used as
evidence in administrative complaint against Mansueto J. Honrada, in the
Administrative Complaint No. A.M. P-90-396 and Criminal Complaint against
Mansueto J. Honrada, incumbent Governor Ceferino S. Paredes, Jr. and Atty.
Generoso S. Sansaet before the Ombudsman under Criminal Case No. OBM-MIN-
90-0053 (sic) entitled Teofilo Gelacio vs. Mansueto J. Honrada, et. al.;
3. That honestly, the said certificate was issued without my expectation that the same
be used as evidence in any case and I be a witness;
4. That the use of said certificate as evidence in the above-mentioned cases is against
my conscience, more so upon discovery that the cases aforesaid are known to me
to be politically motivated and involves [sic] big time politicians in Agusan del Sur
about whom I am not at liberty to name names for security reason;
5. That in view of all the foregoing, I am not interested to testify in any investigation to
be conducted in connection thereof, either in the administrative or criminal
proceedings.
Thus, Judge Ario never denied his earlier Certification that Criminal Case
No. 1393 never reached the arraignment stage, because having learned that
Paredes, Jr. had petitioned the Ministry of Justice for a review of the fiscals
resolution, Judge Ario suspended action until March 17, 1986 and in fact the
fiscal later moved for the dismissal of the case.
The fact that Judge Ario did not anticipate that his certificate might be
used in evidence, much less in the criminal cases now pending in the
Sandiganbayan, is not a reason to disregard it. The fact is that Judge Ario did
not retract his previous Certification that there was no arraignment held in
Criminal Case No. 1393. If that is the truth, then the fact that he now says he
did not anticipate that his certificate would be used in evidence in any case
would not diminish a whit the value of the certificate.
Nor was consideration of the retraction of Atty. Sansaet proof that GIO II
Violan was biased against petitioners. Petitioners contend that Sansaets
confession was privileged and that Violan herself acknowledged that the
affidavit of retraction might be inadmissible in court.
In the first place, there is nothing in the resolution of Violan which shows
that she based her conclusion (that petitioners were probably guilty of
falsification of public documents) on Atty. Sansaets retraction. In her
resolution, all that she stated is that the confession of Atty. Sansaet has
important bearing in this case. Otherwise she did not cite the confession as
proof of the falsification of public documents. To the contrary, Violan thought
that the retraction was made in violation of attorney-client privilege and
therefore, would be inadmissible in evidence. Violan could not, therefore, have
relied on the affidavit of retraction.
Moreover, the admissibility of this piece of evidence is a question for the
Sandiganbayan to determine in the event it is used by the prosecution. It is
untenable to ascribe bias and partiality to the investigator because she
considered this retraction in her resolution of the case. Even if she relied on it
mere divergence of opinions between a judge and a partys counsel as to
applicable laws and jurisprudence is not sufficient ground for disqualifying the
judge from hearing the case on the ground of bias and partiality. 8
As for Prosecutor Querubin, simply because he was the one who handled
the prosecution of Criminal Case No. 13800, in connection with which the
documents allegedly falsified were used by petitioners, is not a reason for
supposing he could not act fairly. As any other counsel in a case, it was his
duty to act with full devotion to [his clients] genuine interests, warm zeal in the
maintenance and defense of his rights, and the exertion of his utmost learning
and ability. It cannot be casually assumed that because of his engagement in
9
that case he had lost his objectivity to such an extent that he forsook his duty
to see to it that justice was done and not to act out of vindictiveness.
Indeed, Querubin is a public prosecutor, not a private attorney. In the
familiar terminology, he is the representative not of an ordinary party to a
controversy but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all and whose interest, therefore, in a
criminal prosecution is not that it shall win a case but that justice shall be
done. It may therefore be assumed that he was merely performing an official
10
duty and that nothing personal was involved in his recommendation to

prosecute the cases.
Above all, it should be stressed that the decision to charge petitioners in
the Sandiganbayan was the decision not only of one person but of all those
who in one way or another were called upon to act in the cases, namely: Graft
Investigation Officer Gay Maggie Balajadia-Violan, Deputy Ombudsman
Cesar Nitorreda, Ombudsman Conrado Vasquez, and Special Prosecutor
Aniano Desierto. Indeed, Querubins only contribution to the process was to
suggest the filing of three separate informations of falsification of public
documents against petitioners.
II.
The second ground for the petition is that the Office of the Ombudsman
closed its eyes to the fact that in filing these cases, complainant Teofilo
Gelacio is guilty of forum-shopping and that his purpose for the filing of the
cases is simply political harassment. To buttress their contention, petitioners
call attention to the factual background of the cases.
11
According to petitioners, way back in 1984 private respondent Teofilo

Gelacio charged petitioner Paredes, Jr. with perjury on the ground that in
1975 Paredes, Jr. made false statements in an affidavit which he used in
support of his application for a free patent. As already noted, the case which
was filed with the Municipal Trial Court of San Francisco, Agusan del Sur, and
docketed there as Criminal Case No. 1393, was dismissed on March 24,
1986 upon motion of the prosecution.
On October 28, 1986, Teofilo Gelacio filed another complaint against
petitioner Paredes, Jr., then the acting governor of the province. The
complaint was for violation of 3 (a) of Republic Act 3019, otherwise known as
Anti-Graft and Corrupt Practices Act. Allegedly, in 1976 petitioner Paredes,
Jr., then the Provincial Attorney of Agusan del Sur, unduly persuaded,
induced and influenced the Public Land Inspector to approve his (Paredes,
Jrs) application for a free patent. According to petitioners, this case involved
the same application for a free patent of petitioner Paredes, Jr., which was the
subject of Criminal Case No. 1393.
The information was filed by Special Prosecutor Erdulfo Querubin in the
Sandiganbayan where it was docketed as Criminal Case No. 13800.
Petitioner Paredes, Jr. moved to quash the information, but the court denied
his motion. He then filed a motion for reconsideration. It was in connection
with this motion that the procurement of allegedly falsified documents, now the
subject of prosecution, was made by petitioner Paredes, Jr. The documents
were used to support his motion for reconsideration.
On August 1, 1991, the Sandiganbayan reconsidered its previous
resolution and dismissed Criminal Case No. 13800, although on the ground of
prescription. The Office of the Ombudsman sought a review of the action of
the Sandiganbayan, but its petition was dismissed by this Court on July 3,
1992 in G.R. No. 101724. The motion for reconsideration filed by the
prosecution was likewise denied.
As an offshoot of the execution of these documents, two cases were filed
by Teofilo Gelacio: (1) an administrative complaint (A.P. Case No. P-90-3 96)
for falsification of public documents which was filed with this Court against
Mansueto Honrada, the clerk of the MCTC who made certifications and (2) a
complaint for falsification of public documents, initially filed as OMB-MIN-90-
0053 with the Office of the Ombudsman and eventually as Criminal Case Nos.
17791, 17792, and 17793 in the Sandiganbayan, against the petitioners and
Atty. Generoso Sansaet.
The first case was dismissed for insufficiency of the evidence. But with
respect to the second complaint, Graft Investigation Officer Violan found
probable cause to proceed against petitioners and against Atty. Sansaet and
so recommended the filing of a case against them. Her recommendation was
approved by the Ombudsman on June 26, 1992, although upon the
recommendation of Special Prosecutor Querubin three separate informations
were filed with the Sandiganbayan. Earlier on July 29, 1991, Atty. Sansaet,
one of the respondents, executed an Affidavit of Explanations and
Rectifications in which he stated that, contrary to his previous affidavit, there
was no arraignment held in Criminal Case No. 1393.
A. Petitioners contend that these cases should be dismissed, being merely
the latest in a series of cases which arose out of the same alleged incident -
i.e. that of allegedly having induced the land inspector to approve his
(Paredes, Jr.s) land application, for having been filed in violation of the rules
12
on forum-shopping. Petitioners cite the following statement in Crisostomo v.

Securities and Exchange Commission: 13
There is forum-shopping whenever as a result of an adverse opinion in one forum, a

party seeks a favorable opinion (other than by appeal or certiorari) in another. The
principle applies not only with respect to suits filed in the courts while an
administrative proceeding is pending as in this case, in order to defeat administrative
processes and in anticipation of an unfavorable administrative ruling and a favorable
court ruling. . . A violation of this rule shall constitute contempt of court and shall be a
cause for summary dismissal of both petitions, without prejudice to the taking of
appropriate action against the counsel or the party concerned.
The mere filing of several cases based on the same incident does not
necessarily constitute forum-shopping. The test is whether the several actions
filed involve the same transactions, essential facts, and circumstances. Here, 14
although several cases were filed by the same complainant against the same
defendant and the subject matter of the actions of two of the cases was the
same incident (i.e., the application for free patent of petitioner Ceferino
Paredes, Jr.), the fact is that the several cases involve essentially different
facts, circumstances and causes of action.
Thus, Criminal Case No. 1393, which was filed in the MCTC of San
Francisco, Agusan del Sur, was for perjury, based on false statements
allegedly made in 1975 by petitioner Paredes, Jr. in connection with his free
patent application. Criminal Case No. 13800, which was filed in the
Sandiganbayan, although based on the filing of the same application for free
patent, was for violation of the Anti-graft and Corrupt Practices Act, on the
allegation that petitioner, as Provincial Attorney, had unduly influenced the
Public Land Inspector to secure the approval of his free patent application. On
the other hand, as already stated, the present cases (Criminal Case Nos.
17791, 17792 and 17793) are for falsification of court records pertaining to
Criminal Case No. 1393. A.P. Case No. P-90-396 is an administrative case
against petitioner Honrada based on the same incident and facts that are
subject of the preceding criminal cases. The rest are incidents of these cases,
being the petition for review and motions for reconsideration in Criminal Case
No. 13800 and A.P. Case No. P-90-396.
Thus the present cases involve substantially different transactions, facts
and circumstances from those involved in the other, though related, cases.
Although they arose from the same incident, i.e., petitioners public land
application, they involve different issues. It is well settled that a single act may
offend against two or more distinct and related provisions of law or that the
15
same act may give rise to criminal as well as administrative liability. As such,
16
they may be prosecuted simultaneously or one after another, so long as they

do not place the accused in double jeopardy of being punished for the same
offense.
Petitioners call attention to the fact that the administrative complaint
against petitioner Honrada was dismissed. They invoke our ruling in Maceda
v. Vasquez that only this Court has the power to oversee court personnels
17
compliance with laws and take the appropriate administrative action against
them for their failure to do so and that no other branch of the government may
exercise this power without running afoul of the principle of separation of
powers.
But one thing is administrative liability. Quite another thing is the criminal
liability for the same act. Our determination of the administrative liability for
falsification of public documents is in no way conclusive of his lack of criminal
liability. As we have held in Tan v. Comelec, the dismissal of an
18
administrative case does not necessarily bar the filing of a criminal

prosecution for the same or similar acts which were the subject of the
administrative complaint.
Petitioners assertion that private respondent Alterado has resorted to
forum-shopping is unacceptable. The investigation then being conducted by
the Ombudsman on the criminal case for falsification and violation of the Anti-
Graft and Corrupt Practices Act, on the one hand, and the inquiry into the
administrative charges by the COMELEC, on the other hand, are entirely
independent proceedings. Neither would the results in one conclude the
other. Thus an absolution from a criminal charge is not a bar to an
administrative prosecution (Office of the Court administrator v. Enriquez, 218
SCRA 1) or vice versa. 19
B. As final argument, petitioners allege that the complaint in Criminal Case

Nos. 17791, 17792 and 17793 was filed by political enemies of petitioner
Paredes, Jr. merely to harass him and that there is in fact no probable cause
to support the prosecution of these cases. Petitioners cite the following which
allegedly indicate that the charges below have merely been trumped up:
(1) The affidavit of Agusan del Sur District Citizens Attorney Lou Nueva,
stating that then Congressman Democrito O. Plaza instructed Atty. Leonardo
Cadiz to secure a certification from Judge Ciriaco C. Ario that no arraignment
had been held in Criminal Case No. 1393, threatening that if the judge refused
to give the certification, he (Congressman Plaza) would do everything against
Judge Ciriaco C. Ario, including reviving certain cases against Judge
Ario; and (2) The affidavit, dated November 5, 1990, of Judge Ario in which
20
he stated that he did not expect that the certificate which he had previously
issued would be used in evidence and that the use of the certificate in the
cases below was against his conscience, because the cases were politically
motivated and he was not going to testify in any investigation concerning such
certificate. At the same time petitioners seek to minimize the retraction of
21
Atty. Sansaet by ascribing political motivation for its execution. Petitioner

Ceferino Paredes, Jr. claims that Sansaets obsession has been to win in an
election and that his loss to petitioner Paredes, Jr. in the May 11,
1992 congressional elections was Sansaets sixth defeat. As for private
respondent Teofilo Gelacio, petitioners say he is a political leader
of Democrito Plaza. They claim that in 1991 Atty. Sansaet changed political
affiliation and allied himself with Democrito Plaza and Teofilo Gelacio.
Petitioners argue that the certifications made by the clerk of court with
respect to an arraignment allegedly held on July 9, 1985 in Criminal Case No.
1393 is conclusive and cannot be altered by Atty. Sansaets claim to the
contrary. They cite what is now Rule 132, 23 of the Revised Rules on
Evidence, which provides that public instruments are evidence, even against a
third person, of the fact which gave rise to their execution and of the date of
the latter.
We find the foregoing averments to be unpersuasive. First of all, that the
filing of the charges is politically motivated cannot justify the prohibition of a
criminal prosecution if there is otherwise evidence to support them. Here a
preliminary investigation of the complaint against petitioners was held during
which petitioners were heard. Their evidence, as well as that of private
respondent Gelacio, was considered in great detail in the resolution of GIO II
Violan. Violans resolution was reviewed by Special Prosecutor Erdulfo
Querubin who made his own detailed resolution concurring in the finding of
Violn. We cannot say that, in approving the resolutions of two investigators,
the respondent Ombudsman and Special Prosecutor committed an abuse of
their discretion.
Indeed, this Court is loath to interfere with the discretion of the
Ombudsman unless such discretion is clearly shown to have been abused. As
explained in Young v. Office of the Ombudsman: 22
The rule is based not only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as
well. Otherwise, the functions of the courts will be grievously hampered by
innumerable petitions assailing the dismissal of investigatory proceedings conducted
by the Office of the Ombudsman with regard to complaints filed before it, in much the
same way that the courts would be extremely swamped if they could be compelled to
review the exercise of discretion on the part of the fiscals or prosecuting attorneys
each time they decide to file an information in court or dismiss a complaint by a
private complainant.
There are instances, constituting exceptions to the general rule, when this
Court will intervene in the prosecution of cases. Some of these instances were
enumerated in Brocka v. Enrile, as follows:
23
a. Where injunction is justified by the necessity to afford protection to the constitutional

rights of the accused; (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19
SCRA 95)
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions; (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al. L-38383, May 27 1981, 104 SCRA 607)
c. When there is a prejudicial question which is sub judice;. (De Leon vs. Mabanag, 70
Phil. 202)
d. When the acts of the officer are without or in excess of authority; (Planas vs. Gil, 67
Phil 62)
e. Where the prosecution is under an invalid law, ordinance or regulation; (Young vs.
Rafferty, 33 Phil 556; Yu Co Eng vs. Trinidad, 47 Phil. 385, 389)
f. When double jeopardy is clearly apparent; (Sangalang vs. People and Avendia, 109
Phil. 1140)
g. Where the court has no jurisdiction over the offense; (Lopez vs. City Judge, L-
25795, October 29, 1966, 18 SCRA 616).
h. Where it is a case of persecution rather than prosecution; (Rustia vs. Ocampo, CA-
G.R. No. 4760, March 25, 1960)
i. Where the charges are manifestly false and motivated by the lust for vengeance;
(Recto vs. Castelo, 18 L.J. (1953), cited in Ranoa vs. Alvendia, CA G.R. No. 30720-
R, October 8, 1962; cf Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577).
j. When there is clearly no prima facie case against the accused and motion to quash
on that ground has been denied; (Salonga vs. Pano, et al., L-59524, February 18,
1985, 134 SCRA 438); and
k. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners. (Rodriguez vs. Castelo, L-6374, August 1,
1953) (cited in Regalado, REMEDIAL LAW COMPENDIUM, p. 188 1988 Ed).
But none of these instances is present here.

What petitioners raise are questions which go to the weight to be given to
the affidavits by Atty. Nueva and Judge Ario. These are matters for the trial
courts appreciation. A preliminary investigation is not a trial. The function of
the government prosecutor during the preliminary investigation is merely to
determine the existence of probable cause. As we explained in Pilapil vs.
24
Sandiganbayan, this function involves only the following:

25
Probable cause is a reasonable ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. (Words and Phrases, Probable Cause v. 34, p. 12) The
term does not mean actual and positive cause nor does it import absolute certainty. It
is merely based on opinion and reasonable belief. Thus a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge.
Secondly, to warrant a finding of political harassment so as to justify the

grant of the extraordinary writs of certiorari and prohibition, it must be shown
that the complainant possesses the power and the influence to control the
prosecution of cases. Here, the prosecution is handled by the Office of the
Ombudsman. Although it is intimated that Petitioner Ceferino S. Paredes, Jr.
is the subject of persecution by his political enemies in Agusan del Sur, it has
not been alleged, much less shown, that his enemies have influence and
power over the national prosecution service.
To show political harassment petitioners must prove that public
prosecutor, and not just the private complainant, is acting in bad faith in
prosecuting the case or has lent himself to a scheme that could have no
26
other purpose than to place the accused in contempt and disrepute. For it is 27
only if he does so may the prosecutor, in conducting the preliminary
investigation, be said to have deserted the performance of his office to
determine objectively and impartially the existence of probable cause and thus
justify judicial intervention in what is essentially his province.
WHEREFORE, the petition for certiorari and prohibition is DISMISSED.
SO ORDERED.
G.R. No. 128055. April 18, 2001. *
MIRIAM DEFENSOR SANTIAGO, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE

S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE
FIRST DIVISION, respondents.
Administrative Law; Public Officers; Preventive Suspension; Anti-Graft and Corrupt Practices Act; Sandiganbayan; The
authority of the Sandiganbayan to order the preventive suspension of an incumbent public
_______________
*
EN BANC.
637
VOL. 356, APRIL 18, 2001 6

37
Santiago vs. Sandiganbayan
official charged with violation of the provisions of Republic Act (R.A.) No. 3019 has both legal and jurisprudential
support.—The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with
violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. It would appear, indeed, to be a
ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it.
Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a
matter of course, and there seems to be “no ifs and buts about it.” In issuing the preventive suspension of petitioner, the
Sandiganbayan merely adhered to the clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court
has, more than once, upheld Sandiganbayan’s authority to decree the suspension of public officials and employees indicted
before it.
Same; Same; Same; Same; Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has been charged—the use of the word
“office” would indicate that it applies to any office which the officer charged may be holding, and not only the particular office
under which he stands accused.—Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been
held that the use of the word “office” would indicate that it applies to any office which the officer charged may be holding, and
not only the particular office under which he stands accused.
Same; Same; Same; Same; While the imposition of suspension is not automatic or self-operative as the validity of the
information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. —En
passant, while the imposition of suspension is not automatic or self-operative as the validity of the information must be
determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that—“ ‘x x x No
specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and
adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has not been
afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the
provisions of Republic Act 3019 or the bribery provisions of the Revised Penal Code which would warrant his mandatory
suspension from
638

38 ANNOTATED
office under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for
in Rule 117 of the Rules of Court x x x.’ ”
Same; Same; Same; Same; Congressional Discipline; The order of suspension prescribed by Republic Act No. 3019 is
distinct from the power of Congress to discipline its own ranks under the Constitution.—The order of suspension prescribed by
Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides
that each—“x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days.” The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon
determination by the Senate or the House of Representatives, as the case may be, upon an erring member.
Same; Same; Same; Same; Same; Separation of Powers; The doctrine of separation of powers by itself may not be
deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions.—The doctrine of
separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No.
3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate,
branches of the government—the Legislative, the Executive and the Judiciary—has exclusive prerogatives and cognizance within
its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch.
Separation of Powers; Judicial Review; Where the question pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby
inheres the Court should not deign substitute its own judgment over that of any other two branches of government—it is an
impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial
intervention.—Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of “actual
controversies involving rights which are legally demandable and enforceable,” but also in the determination of “whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. The provision allowing the Court to look into any pos-
639
VOL. 356, APRIL 18, 2001 6

39
sible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms
in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has
been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of
jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court
subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the Court should
not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear
disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of
the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly
react in the manner prescribed by the Charter itself.
PETITION for review on certiorari of a decision of the Sandiganbayan.

Miriam Defensor Santiago for and in her own behalf.
The Solicitor General for respondents.
VITUG, J.:
The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in ordering the preventive
suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in connection with pending criminal cases filed
against her for alleged violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act.
The instant case arose from complaints filed by a group of employees of the Commission of Immigration and
Deportation (CID) against petitioner, then CID Commissioner, for alleged violation of the Anti-Graft and Corrupt
Practices Act. The investigating panel, that took over the case from Investigator Gualberto dela liana after having
been constituted by the Deputy Ombudsman for Luzon upon petitioner’s request, came up with a resolution which it
referred, for approval, to the Office of the Special Prosecutor (OSP)
640
0 ANNOTATED
and the Ombudsman. In his Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the
appropriate informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the informations
for clearance; approved, forthwith, three informations were filed on even date.
In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:
“That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila, Philippines and
within the jurisdiction of this Honorable Court, accused MIRIAM DEFENSOR-SANTIAGO, a public
officer, being then the Commisioner of the Commision on Immigration and Deportation, with evident bad
faith and manifest partiality in the exercise of her official functions, did then and there willfully,
unlawfully and criminally approve the application for legalization of the stay of the following aliens:
Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy,
Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan
Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao Hua Xu, Hong Shao Wei
Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang
Xiu Jin, Cai Pian Plan, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez,
Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai
Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324
dated April 13, 1988 which prohibits the legalization of said disqualified aliens knowing fully well that
said aliens are disqualified, thereby giving unwarranted benefits to said aliens whose stay in the
Philippines was unlawfully legalized by said accused.” 1
Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and the other for libel,
were filed with the Regional Trial Court of Manila, docketed, respectively, No. 91-94555 and No. 91-94897.
Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E. Garchitorena issued an
order for the arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00)
_______________
1
Rollo, p. 96.
641
VOL. 356, APRIL 18, 2001 641
Pesos. Petitioner posted a cash bail without need for physical appearance as she was then recuperating from injuries
sustained in a vehicular accident. The Sandiganbayan granted her provisional liberty until 05 June 1991 or until her
physical condition would warrant her physical appearance in court. Upon manifestation by the Ombudsman,
however, that petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an order
setting the arraignment on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be allowed provisional
liberty upon a recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with Prohibition and Preliminary
Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the Sandiganbayan from proceeding
with Criminal Case No. 16698 and a motion before the Sandiganbayan to meanwhile defer her arraignment. The
Court taking cognizance of the petition issued a temporary restraining order.
The Sandiganbayan, thus informed, issued an order deferring petitioner’s arraignment and the consideration of
her motion to cancel the cash bond until further advice from the Court.
On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the temporary restraining
order. The subsequent motion for reconsideration filed by petitioner proved unavailing.
On 06 July 1992, in the wake of media reports announcing petitioner’s intention to accept a fellowship from the
John F. Kennedy School of Government at Harvard University, the Sandiganbayan issued an order to enjoin
petitioner from leaving the country.
On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena from the case
and to defer her arraignment pending action on her motion to inhibit. On 09 November 1992, her motion was denied
by the Sandiganbayan. The following day, she filed anew a Petition for Certiorari and Prohibition with urgent
Prayer for Preliminary Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a
motion for bill of particulars with the Sandiganbayan asseverating
642
2 ANNOTATED
that the names of the aliens whose applications she purportedly approved and thereby supposedly extended undue
advantage were conspicuously omitted in the complaint.
The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset petitioner’s arraignment
not later than five days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to admit thirty-two
amended informations. Petitioner moved for the dismissal of the 32 informations. The court, in its 11th March 1993
resolution, denied her motion to dismiss the said informations and directed her to post bail on the criminal cases,
docketed Criminal Case No. 18371-18402, filed against her.
Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R. No. 109266,
assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not to disqualify its Presiding
Justice, as well as its 14th March 1993 resolution admitting the 32 Amended Informations, and seeking the
nullification thereof.
Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena to cease and
desist from sitting in the case, as well as from enforcing the 11th March 1993 resolution ordering petitioner to post
bail bonds for the 32 amended informations, and from proceeding with her arraignment on 12 April 1993 until the
matter of his disqualification would have been resolved by the Court.
On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and Ombudsman to
consolidate the 32 amended informations. Conformably therewith, all the 32 informations were consolidated into
one information under Criminal Case No. 16698.
Petitioner, then filed with the Sandiganbayan a Motion to “Redetermine Probable Cause” and to dismiss or
quash said information. Pending the resolution of this incident, the prosecution filed on 31 July 1995 with the
Sandiganbayan a motion to issue an order suspending petitioner.
643
VOL. 356, APRIL 18, 2001 643
On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo Pedellaga (Pedellaga). The
presentation was scheduled on 15 September 1995.
In the, interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995 motion of the
prosecution within fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of its 03rd August
1995 order which would allow the testimony of Pedellaga. The incident, later denied by the Sandiganbayan, was
elevated to the Court via a Petition for Review on Certiorari, entitled “Miriam Defensor-Santiago vs.
Sandiganbayan,’’ docketed G.R. No. 123792.
On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend her. On 25
January 1996, the Sandiganbayan resolved:
“WHEREFORE, for all the foregoing, the Court hereby grants the motion under consideration and hereby
suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the
Philippines and from any other government position she may be holding at present or hereafter. Her
suspension shall be for ninety (90) days only and shall take effect immediately upon notice.
“Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate President, Senate of
the Philippines, Executive House, Taft Ave., Manila, through the Hon. Secretary of the Senate, for the
implementation of the suspension herein ordered. The Secretary of the Senate shall inform this Court of
the action taken thereon within five (5) days from receipt hereof.
“The said official shall likewise inform this Court of the actual date of implementation of the
suspension order as well as the expiry of the ninetieth day thereof so that the same may be lifted at that
time.” 2
Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a ninety-day
preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any
government position, and furnishing a copy
_______________
Rollo, p. 20.
2
644
4 ANNOTATED
thereof to the Senate of the Philippines for the implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged
with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. Section 13 of
the statute provides:
“SEC. 13. Suspension and loss of benefits.—Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code
or for any offense involving fraud upon government or public funds or property whether as a simple or as
a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall
be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him.
“In the event that such convicted officer, who may have already been separated from the service, has
already received such benefits he shall be liable to restitute the same to the Government. (As amended by
BP Blg. 195, March 16, 1982.)”
In the relatively recent case of Segovia vs. Sandiganbayan, the Court reiterated:
3
“The validity of Section 13, R.A. 3019, as amended—treating of the suspension pendente lite of an
accused public officer—may no longer be put at issue, having been repeatedly upheld by this Court.
“x x x x x x x x x
“The provision of suspension pendente lite applies to all persons indicted upon a valid information
under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or
pertaining to the career or non-career service.” 4
It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of
the validity of
_______________
288 SCRA 328 (1998).

3
At pp. 336-337.

4
645
VOL. 356, APRIL 18, 2001 645
the information filed before it. Once the information is found to be sufficient in form and substance, the court is
bound to issue an order of suspension as a matter of course, and there seems to be “no ifs and buts about
it.” Explaining the nature of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan observed:
5 6
“x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted,
the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension.” 7
In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear and unequivocal
mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayan’s
authority to decree the suspension of public officials and employees indicted before it.
Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in
the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held
that the use of the word “office” would indicate that it applies to any office which the officer charged may be
holding, and not only the particular office under which he stands accused. 8
En passant, while the imposition of suspension is not automatic or self-operative as the validity of the
information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof.
It has been said that—
“‘x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g. that he has not been afforded the right
_______________
5
Libanan vs. Sandiganbayan, 163 SCRA 163 (1988).
6
Bayot vs. Sandiganbayan, 128 SCRA 383 (1984).
7
At p. 386.
8
Bayot vs. Sandiganbayan, supra; Segovia vs. Sandiganbayan, supra.
646
6 ANNOTATED
of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of
the provisions of Republic Act 3019 or the bribery provisions of the Revised Penal Code which would
warrant his mandatory suspension from office under section 13 of the Act; or he may present a motion to
quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x.’
“x x x x x x x x x
“Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the
acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery
of the Revised Penal Code, and the right to present a motion to quash the information on any other
grounds provided in Rule 117 of the Rules of Court.
“However, a challenge to the validity of the criminal proceedings on the ground that the acts for which
the accused is charged do not constitute a violation of the provisions of Rep. Act 3019, or of the
provisions on bribery of the Revised Penal Code, should be treated only in the same manner as a
challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph
(a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In
other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted,
constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the
Revised Penal Code.” 9
The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial
on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could
influence the witnesses or pose a threat to the safety and integrity of the records and other evidence before the court
could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the
accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that
he has not been afforded the
_______________
Luciano vs. Mariano, 40 SCRA 187 (1971); People vs. Albano, 163 SCRA 511, 517-519 (1988).
9
647
VOL. 356, APRIL 18, 2001 647
right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his
mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to
quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure. 10
The instant petition is not the first time that an incident relating to petitioner’s case before the Sandiganbayan
has been brought to this Court. In previous occasions, the Court has been called upon to resolve several other
matters on the subject. Thus: (1) In Santiago vs. Vasquez, petitioner sought to enjoin the Sandiganbayan from
11
proceeding with Criminal Case No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs.
Vasquez, petitioner sought the nullification of the hold departure order issued by the Sandiganbayan via a “Motion
12
to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of a Temporary
Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident for Hearing; (3) in Santiago
vs. Garchitorena, petitioner sought the nullification of the resolution, dated 03 March 1993, in Criminal Case No.
13
16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualified from acting
in said criminal case, and the resolution, dated 14 March 1993, which deemed as “filed” the 32 amended
informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan, petitioner assailed the denial by
14
the Sandiganbayan of her motion for reconsideration from its 03rd August 1995 order allowing the testimony of
Pedellaga. In one of these cases, the Court declared:
15
_______________
Segovia vs. Sandiganbayan, supra; Resolution of the Supreme Court in AM. No. 00-05-03-SC, dated 03 October
10
2000, which became effective on 01 December 2000.

205 SCRA 162 (1992).
11
217 SCRA 633 (1993).

12
228 SCRA 214 (1993).

13
G.R. No. 123792, March 18, 1999, 304 SCRA 263.

14
Santiago vs. Garchitorena, Idem.

15
648
8 ANNOTATED
“We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698
(G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue
of the delay in the preliminary investigation and the filing of the information against her in those
petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating.
“Petitioner next claims that the Amended informations did not charge any offense punishable under
Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under
Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the
policy of approving applications for legalization of spouses and unmarried, minor children of “qualified
aliens” even though they had arrived in the Philippines after December 31, 1983. She concludes that the
Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31).
“In a motion to quash, the accused admits hypothetically the allegations of fact in the information
(People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion
that:
1. (1)She was a public officer;

2. (2)She approved the application for legalization of the stay of aliens, who arrived in the
Philippines after January 1, 1984;
3. (3)Those aliens were disqualified;
4. (4)She was cognizant of such fact; and
5. (5)She acted in ‘evident bad faith and manifest partiality in the execution of her official
functions.’
“The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of
R.A. No. 3019.” 16
The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to
discharge its mandated duty to forthwith issue the order of preventive suspension.
The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution which provides that each—
_______________
At pp. 221-222.

16
649
VOL. 356, APRIL 18, 2001 649
“x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.” 17
The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon
determination by the Senate or the House of Representatives, as the case may be, upon an erring member. Thus, in
its resolution in the case of Ceferino Paredes, Jr., vs. Sandiganbayan, et al., the Court affirmed the order of
18
suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the
court on the prerogatives of Congress. The Court ruled:
“x x x. Petitioner’s invocation of Section 16 (3), Article VI of the Constitution—which deals with the
power of each House of Congress inter alia to ‘punish its Members for disorderly behavior,’ and ‘suspend
or expel a Member’ by a vote of two-thirds of all its Members subject to the qualification that the penalty
of suspension, when imposed, should not exceed sixty days—is unavailing, as it appears to be quite
distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a
preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on
petitioner for misbehavior as a Member of the House of Representatives.”
The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of
Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-
equal and independent, albeit coordinate, branches of the government—the Legislative, the Executive and the
Judiciary—has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents
one branch from unduly intruding into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers
the Court to act not only in the settlement of “actual controversies involving rights which are legally demandable
and enforceable,” but also in the
_______________
Section 16 (3), Article VI, 1987 Constitution.

17
G.R. No. 118364, 08 August 1995.

18
650
0 ANNOTATED
determination of “whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The provision allowing the Court to
look into any possible grave abuse of discretion committed by any government instrumentality has evidently been
couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu.
In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of
judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to
either of Congress or the Executive, the Court subscribes to the view that unless an infringement of any specific
19
Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any
of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional
precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or
ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the
manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the
Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the
Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to
render this decision for future guidance on the significant issue raised by petitioner.
WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.
SO ORDERED.
Davide,
Jr. (C.J.), Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.
Somewhat made implicit in my understanding of Arroyo vs. De Venecia, 277 SCRA 268, 289 (1997).
19
651
VOL. 356, APRIL 18, 2001 651
Pabu-aya vs. Court of Appeals
Petition dismissed.
Notes.—The provision of suspension pendente liteapplies to all persons indicted upon a valid information under
Republic Act 3019, whether they be appointive or elective officials, permanent or temporary employees, or
pertaining to the career or non-career service. (Segovia vs. Sandiganbayan, 288 SCRA 328 [1998])
There is an unfortunate misimpression in the public mind that election or appointment to high government
office, by itself, frees the official from the common restraints of general law. Privilege has to be granted by law, not
inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather
than exemption. The immunity from arrest or detention of Senators and members of the House of Representatives,
the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the
provision shows that the privilege has always been granted in a restrictive sense. The provision granting an
exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be
extended by intendment, implication or equitable considerations. (People vs. Jalosjos, 324 SCRA 689 [2000])
——o0o——
July 31, 2009. G.R. No. 180055.*

FRANKLIN M. DRILON as President and in representation of the LIBERAL PARTY OF THE PHILIPPINES (LP),
AND HON. JOSEPH EMILIO A. ABAYA, HON. WAHAB M. AKBAR, HON. MARIA EVITA R. ARAGO, HON.
PROCESSO J. ALCALA, HON. ROZZANO RUFINO BIAZON, HON. MARY MITZI CAJAYON, HON.
FREDENIL H. CASTRO, HON. GLENN ANG CHONG, HON. SOLOMON R. CHUNGALAO, HON. PAUL
RUIZ DAZA, HON. ANTONIO A. DEL ROSARIO, HON. CECILIA S. LUNA, HON. MANUEL M. MAMBA,
HON. HERMILANDO I. MANDANAS, HON. ALVIN SANDOVAL, HON. LORENZO R. TAÑADA III, HON.
REYNALDO S. UY, HON. ALFONSO V. UMALI, JR., HON.
_______________
** Additional member per Special Order No. 658.

*** Additional member per Special Order No. 635.
**** Additional member per Special Order No. 664.
* EN BANC.
750

0 ANNOTATED
Drilon vs. De Venecia, Jr.
LIWAYWAY VINZONS-CHATO, petitioners, vs. HON. JOSE DE VENECIA, JR. in his official capacity as
Speaker of the House of Representatives; HON. ARTHUR D. DEFENSOR, SR., in his official capacity as Majority
Floor Leader of the House of Representatives, HON. MANUEL B. VILLAR, in his official capacity as ex-
officio Chairman of the Commission on Appointments, ATTY. MA. GEMMA D. ASPIRAS, in her official capacity
as Secretary of the Commission on Appointments, HON. PROSPERO C. NOGRALES, HON. EDGARDO C.
ZIALCITA, HON. ABDULLAH D. DIMAPORO, HON. JOSE CARLOS V. LACSON, HON. EILEEN R.
ERMITA-BUHAIN, HON. JOSE V. YAP, HON. RODOLFO T. ALBANO III, HON. EDUARDO R. GULLAS,
HON. CONRADO M. ESTRELLA III, HON. RODOLFO “OMPONG” PLAZA, HON. EMMYLOU J. TALIÑO-
MENDOZA and HON. EMMANUEL JOEL J. VILLANUEVA, in their individual official capacities as “elected”
members of the Commission on Appointments, respondents.
July 31, 2009. G.R. No. 183055.*

SENATOR MA. ANA CONSUELO A.S. MADRIGAL, petitioner, vs. SENATOR MANUEL VILLAR in his
capacity as Senate President and Ex-Officio Chairman of the Commission on Appointments, REPRESENTATIVE
PROSPERO NOGRALES in his capacity as the Speaker of the House of Representatives, and THE COMMISSION
ON APPOINTMENTS, respondents.
Remedial Law; Actions; Jurisdiction; The doctrine of primary jurisdiction dictates that prior
recourse to the House is necessary before she may bring her petition to court.—Senator
Madrigal’s primary recourse rests with the respective Houses of Congress and not with this Court. The
doctrine of primary jurisdiction dictates that prior recourse to the House is necessary before she may
bring her petition to court. Senator Villar’s invocation of said doctrine is thus well-taken, as is the
following observation of Speaker Nograles, citing Sen. Pimentel, Jr. v. House of Representatives
Electoral Tribunal, 393 SCRA 227 (2002).751
VOL. 594, JULY 31, 2009 7

51
Commission on Appointments; Jurisdiction; Senator Madrigal’s suggestion—involves a
determination of party affiliations, a question of fact which the Court does not resolve.—Senator
Madrigal’s suggestion—that Senators Pilar Juliana Cayetano and Richard Gordon be considered
independent senators such that the latter should not be allowed to be a member of the CA, and that
Senator Alan Peter Cayetano be considered a member of the NP such that he may sit in the CA as his
inclusion in NP will entitle his party to one seat—involves a determination of party affiliations, a question
of fact which the Court does not resolve.
SPECIAL CIVIL ACTIONS in the Supreme Court. Prohibition, Mandamus and Quo Warranto.
Wilfredo D. Asis for petitioners.
Romeo T. Capulong, Rachel F. Pastores, Amylyn B. Sato and Charmaine C. Dela Cruz for petitioner Sen. Ma.
Ana Consuelo A.S. Madrigal.
David Jonathan V. Yap, C. Kenneth S. Tampal andAdrian A. Arpon for Hon. Manuel B. Villar.
Leonardo B. Palicte III for Hon. Jose De Venecia, Jr., Hon. Arthur Defensor, Sr. and Hon. Prospero Nograles.
Agustinus V. Gonzaga for respondents Hon. Manuel B. Villar and Ma. Gemma D. Aspiras.
CARPIO-MORALES,J.:
In August 2007, the Senate and the House of Representatives elected their respective contingents to the
Commission on Appointments (CA).
The contingent in the Senate to the CA was composed of the following senators with their respective political
parties:
Sen. Maria Ana Consuelo A.S. adrigal PDP-Laban
Sen. Joker Arroyo KAMPI
Sen. Alan Peter Cayetano Lakas-CMD752
2 ANNOTATED
Sen. Panfilo Lacson UNO
Sen. Jinggoy Ejercito Estrada PMP
Sen. Juan Ponce Enrile PMP
Sen. Loren Legarda NPC
Sen. Richard Gordon Lakas-CMD
Sen. Mar Roxas LP
Sen. Lito Lapid Lakas-CMD
Sen. Miriam Defensor-Santiago PRP
The members of the contingent of the House of Representatives in the CA and their respective political parties
were as follows:
Lakas-CMD Rep. Prospero C. Nograles
Lakas-CMD Rep. Eduardo C. Zialcita
Lakas-CMD Rep. Abdullah D. Dimaporo
Lakas-CMD Rep. Jose Carlos V. Lacson
Lakas-CMD Rep. Eileen R. Ermita-Buhain
Lakas-CMD Rep. Jose V. Yap
KAMPI Rep. Rodolfo T. Albano III
KAMPI Rep. Eduardo R. Gullas
NPC Rep. Rodolfo “Ompong” G. Plaza
NPC Rep. Conrado M. Estrella
NP Rep. Emmylou J. Taliño-Mendoza
CIBAC Party List Rep. Emmanuel Joel J. Villanueva
In the second week of August 2007, petitioners in the first petition, G.R. No. 180055, went to respondent then
Speaker Jose de Venecia to ask for one seat for the Liberal Party in the CA. Speaker Jose de Venecia merely said
that he would study their demand.1
During the session of the House of Representatives on September 3, 2007, petitioner in the first petition,
Representative Tañada, requested from the House of Representatives leadership 2 one seat in the CA for the Liberal
Party.3 To his request,
_______________
1 Vide Rollo (G.R. No. 180055), pp. 23-24.

2 Vide Id., at p. 14.
3 Ibid.
753
VOL. 594, JULY 31, 2009 753
Representative Neptali Gonzales II4 begged the indulgence of the Liberal Party “to allow the Legal Department to
make a study on the matter.”5
In a separate move, Representative Tañada, by letter of September 10, 2007, requested the Secretary General of
the House of Representatives the reconstitution of the House contingent in the CA to include one seat for the Liberal
Party in compliance with the provision of Section 18, Article VI of the Constitution. 6 Representative Tañada also
brought the matter to the attention of then Speaker De Venecia, reiterating the position that since there were at least
20 members of the Liberal Party in the 14th Congress, the party should be represented in the CA.7
As of October 15, 2007, however, no report or recommendation was proffered by the Legal Department,
drawing Representative Tañada to request a report or recommendation on the matter within three days.8
In reply, Atty. Grace Andres of the Legal Affairs Bureau of the House of Representatives informed
Representative Tañada that the department was constrained to withhold the release of its legal opinion because the
handling lawyer was directed to secure documents necessary to establish some of the members’ party affiliations. 9
Hence spawned the filing on October 31, 2007 of the firstpetition by petitioner former Senator Franklin M.
Drilon (in representation of the Liberal Party), et al., for prohibition, mandamus, and quo warranto with prayer for
the issuance of writ of preliminary injunction and temporary restraining
_______________
4 In what capacity he replied to Representative Tañada is not mentioned in the Rollo.

5 Rollo (G.R. No. 180055), p. 14.
6 Id., at p. 25.
7 Ibid.
8 Id., at pp. 14-15.
9 Id., at p. 53.
754
4 ANNOTATED
order, against then Speaker De Venecia, Representative Arthur Defensor, Sr. in his capacity as Majority Floor
Leader of the House of Representatives, Senator Manuel B. Villar in his capacity as ex officio chairman of the CA,
Atty. Ma. Gemma D. Aspiras in her capacity as Secretary of the CA, and the individual members of the House of
Representatives contingent to the CA.10 The petition in G.R. No. 180055 raises the following issues:
a.WHETHER THE LIBERAL PARTY WITH AT LEAST TWENTY (20) MEMBERS WHO SIGNED
HEREIN AS PETITIONERS, IS CONSTITUTIONALLY ENTITLED TO ONE (1) SEAT IN THE
COMMISSION ON APPOINTMENTS.
b.WHETHER THE HOUSE OF REPRESENTATIVES’ RESPONDENTS HAVE COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CONSTITUTING THE COMMISSION ON APPOINTMENTS IN CONTRAVENTION OF THE
REQUIRED PROPORTIONAL CONSTITUTION BY DEPRIVING THE LIBERAL PARTY OF ITS
CONSTITUTIONAL ENTITLEMENT TO ONE (1) SEAT THEREIN.
c.WHETHER AS A RESULT OF THE GRAVE ABUSE OF DISCRETION COMMITTED BY THE
HOUSE OF REPRESENTATIVES RESPONDENTS, THE WRITS PRAYED FOR IN THIS PETITION BE
ISSUED NULLIFYING THE CURRENT COMPOSITION OF THE COMMISSION ON
APPOINTMENTS, RESTRAINING THE CURRENT HOUSE OF REPRESENTATIVE MEMBERS FROM
SITTING AND PARTICIPATING IN THE PROCEEDINGS OF THE COMMISSION ON
APPOINTMENTS, OUSTING THE AFFECTED RESPONDENTS WHO USURPED, INTRUDED INTO
AND UNLAWFULLY HELD POSITIONS IN THE COMMISSION ON APPOINTMENTS AND
REQUIRING THE RESPONDENTS TO RECONSTITUTE AND/OR REELECT THE MEMBERS OF
SAID COMMISSION. (Italics in the original)
11
And it prays that this Court:

_______________
10 Id., at pp. 3-44.

11 Id., at p. 26.
755
VOL. 594, JULY 31, 2009 755
a. Immediately upon the filing of the instant Petition, issue a Temporary Restraining
Order and/or a Writ of Preliminary Prohibitory and Mandatory Injunction, enjoining
all Respondents and all persons under their direction, authority, supervision, and
control from further proceeding with their actions relating to the illegal and
unconstitutional constitution of the Commission on Appointments and to the unlawful
exercise of its members’ functions, contrary to the rule on proportional representation
of political parties with respect to the House of Representatives contingent in the said
Commission;
b. After careful consideration of the merits of the case, render judgment making the
injunction permanent and ordering Respondents and all persons under their direction,
authority, supervision, and control;
xxxx
c. Declare Respondents’ action in not allotting one (1) seat to Petitioners null and void
for being a direct violation of Section 18, Article VI of the Constitution;
d. Declare the proceedings of the Commission on Appointments null and void, insofar
as they violate the rule on proportional representation of political parties in said
Commission;
e. Oust the affected respondents, whoever they are, who usurped, intruded into and have
unlawfully held positions in the Commission on Appointments and
f. Require Respondents to alter, reorganize, reconstitute and reconfigure the composition
of the Commission on Appointments in accordance with proportional representation
based on the actual numbers of members belonging to duly accredited and registered
political parties who were elected into office during the last May 14, 2007 Elections
by, at the very least, respecting and allowing Congressman Alfonso V. Umali, Jr. as
the duly nominated Commission on Appointments member of the Liberal Party of the
Philippines to sit therein as such.12
_______________
12 Id., at pp. 35-36.

756
6 ANNOTATED
Respondents Senator Villar and CA Secretary Aspiras filed their Comment 13 on December 6, 2007, moving for
the dismissal of the petition on these grounds:
I. THE POWER TO ELECT MEMBERS TO THE COMMISSION ON
APPOINTMENTS BELONGS TO EACH HOUSE OF CONGRESS PURSUANT
TO THE CONSTITUTION. AS SUCH, THE PETITION IS NOT DIRECTED
AT THE HEREIN RESPONDENTS.
II. THE CONSTITUTION DOES NOT REQUIRE THAT THE COMMISSION
MUST HAVE COMPLETE MEMBERSHIP IN ORDER THAT IT CAN
FUNCTION. WHAT THE CONSTITUTION REQUIRES IS THAT THERE
MUST AT LEAST BE A MAJORITY OF ALL THE MEMBERS OF THE
COMMISSION FOR IT TO VALIDLY CONDUCT ITS PROCEEDINGS AND
TRANSACT ITS BUSINESS.14 (Emphasis in the original)
Then Speaker De Venecia and Representative Defensor filed their Comment and Opposition 15 on February 18,
2008, moving too for the dismissal of the petition on these grounds:
I. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF
DISCRETION THAT WILL JUSTIFY THE GRANT OF THE
EXTRAORDINARY WRIT OF MANDAMUS.16
II. THE LIBERAL PARTY DOES NOT POSSESS THE REQUISITE NUMBER
OF MEMBERS THAT WOULD ENTITLE THE PARTY TO A SEAT IN THE
COMMISSION ON APPOINTMENTS. IT IS, THEREFORE, NOT THE
PROPER PARTY TO IN-
_______________
13 Id., at pp. 69-77.

14 Id., at pp. 71, 73.
15 Id., at pp. 111-181.
16 Id. at p. 113.
757
VOL. 594, JULY 31, 2009 757
STITUTE THE INSTANT PETITION FOR QUO WARRANTO.17
III. THE PETITIONERS FAILED TO EXHAUST THE REMEDIES
AVAILABLE TO THEM.18
IV. THE CONFLICTING CLAIMS OF THE PARTIES AS TO THE
AFFILIATION OF THE MEMBERS NEED TO BE SETTLED IN A
TRIAL.19 (Emphasis in the original)
Meantime, Senator Ma. Ana Consuelo A.S. Madrigal of PDP-Laban, by separate letters of April 17, 2008 to
Senator Villar and Speaker Prospero Nograles, claimed that the composition of the Senate contingent in the CA
violated the constitutional requirement of proportional representation for the following reasons:
1. PMP has two representatives in the CA although it only has two members in the
Senate and thus [is] entitled only to one (1) seat.
2. KAMPI has only one (1) member in the Senate and thus is not entitled to a CA seat
and yet it is represented in the CA.
3. PRP has only one (1) member in the Senate and thus is not entitled to a CA seat and
yet it is represented in the CA.
4. If Senators Richard Gordon and Pilar Juliana Cayetano are Independents, then Sen.
Gordon cannot be a member of the CA as Independents cannot be represented in the
CA even though there will be three Independents in the CA.
5. If Sen. Alan Peter Cayetano is now NP, he still can sit in the CA representing NP.20
_______________
17 Id., at p. 125.
18 Id., at p. 133.
19 Id., at p. 137.
20 Rollo (G.R. No. 183055), pp. 34-35.
758
8 ANNOTATED
She also claimed that the composition of the House of Representatives contingent in the CA violated the
constitutional requirement of proportional representation for the following reasons:
1. Lakas-CMD currently has five (5) members in the Commission on Appointments
although it is entitled only to four (4) representatives and thus [is] in excess of a
member;
2. KAMPI currently has three (3) members in the Commission on Appointments
although it is entitled only to two (2) representatives and thus is excess of a member;
3. Liberal Party is not represented in the Commission on Appointments although it is
entitled to one (1) nominee; and
4. Party-List CIBAC has a representative in the Commission on Appointments although
it only has two members in the House of Representatives and therefore [is] not entitled
to any seat.21
Senator Madrigal thus requested the reorganization of the membership of the CA and that, in the meantime,
“all actions of [the] CA be held in abeyance as the same may be construed as illegal and unconstitutional.” 22
By letter of May 13, 2008, Senator Madrigal again wrote Senator Villar as follows:
“Today, I was advised that the Committee on Budget and Management of Senator Mar Roxas has
endorsed the ad interimappointment of Rolando G. Andaya as Secretary of the Department of Budget and
Management for approval by the CA in the plenary. I believe it is imperative that the serious
constitutional questions that I have raised be settled before the plenary acts on this endorsement by the
Committee on Budget and Management. Otherwise, like
_______________
21 Id., at p. 37.
22 Id., at pp. 37-38.
759
VOL. 594, JULY 31, 2009 759

Damocles’ sword, a specter of doubt continues to be raised on the validity of actions taken by the CA and
its committees.” 23
Still later or on May 19, 2008, Senator Madrigal sent another letter to Senator Villar declaring that she “cannot
in good conscience continue to participate in the proceedings of the CA, until such time as [she] get[s] a response to
[her] letters and until the constitutional issue of the CA’s composition is resolved by the leadership of the
Commission,”24 and that without any such resolution, she would be forced to invoke Section 20 of the CA rules
against every official whose confirmation would be submitted to the body for deliberation.25
The CA Committee on Rules and Resolutions, by letter-comment of May 26, 2008, opined that the CA has
neither the power nor the discretion to reject a member who is elected by either House, and that any complaints
about the election of a member or members should be addressed to the body that elected them.26
By letter of May 28, 2008, Senator Villar advised Senator Madrigal as follows:
“x x x x
Noting your position that you will not continue to participate in the proceedings of the CA … “until
the constitutional issue of the CA’s composition is resolved by the leadership of the Commission”
x x x, the Secretary of the Commission, upon my instructions, transmitted the same to the CA Committee
on Rules and Resolutions. It was my intention to have the Committee study and deliberate on the matter
and to recommend what step/s to take on your request that “all actions of the Commission be held in
abeyance” x x x.
In view however, of your manifestation during the May 26, 2008 meeting of the CA Committee on
Rules and Resolutions, and of
_______________
23 Id., at p. 39.
24 Id., at p. 42.
25 Ibid.
26 Id., at p. 43.
760

0 ANNOTATED
the written comment of Sen. Arroyo that “If there is a complaint in the election of a member or
members, it shall be addressed to the body that elected them, namely the Senate and/or the House,” I have
given instructions to transmit the original copies of your letters to the Senate Secretary for their
immediate inclusion in the Order of Business of the Session of the Senate so that your concerns may be
addressed by the Senate in caucus and/or in plenary.” (Emphasis and underscoring supplied)
27
Undaunted, Senator Madrigal, by letter of June 2, 2008 addressed to Senator Villar, reiterated her request that all
actions of the CA be held in abeyance pending the reorganization of both the Senate and House of Representatives
contingents.28
Senator Madrigal thereafter filed on June 13, 2008 the second petition, G.R. No. 183055, for prohibition
and mandamus with prayer for issuance of temporary restraining order/writ of preliminary injunction against
Senator Villar in his capacity as Senate President and Ex-Officio Chairman of the CA, Speaker Nograles, and the
CA,29 alleging that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction
A. . . . IN FAILING TO COMPLY WITH THE CONSTITUTIONALLY
REQUIRED PROPORTIONAL PARTY REPRESENTATION OF THE
MEMBERS OF THE COMMISSION ON APPOINTMENTS;
B. . . . IN CONTINUOUSLY CONDUCTING HEARINGS AND PROCEEDINGS
ON THE APPOINTMENTS DESPITE THE COMMISSION ON
APPOINTMENTS’ UNCONSTITUTIONAL COMPOSITION WHICH MUST
BE PROHIBITED BY THIS HONORABLE COURT; and
_______________
27 Id., at p. 44.
28 Id., at p. 46.
29 Id., at pp. 3-29.
761
VOL. 594, JULY 31, 2009 761
C. . . . IN FAILING, DESPITE REPEATED DEMANDS FROM PETITIONER,
TO RE-ORGANIZE THE COMMISSION ON APPOINTMENTS IN
ACCORDANCE WITH THE MANDATED PROPORTIONAL PARTY
REPRESENTATION OF THE 1987 CONSTITUTION, WHICH
REQUIREMENT MUST BE ENFORCED BY THIS HONORABLE
COURT.30 (Emphasis in the original)
She thus prayed for the
1.. . . issu[ance of] a temporary restraining order/a writ of preliminary injunction to enjoin
Respondents from proceeding with their illegal and unlawful actions as officials and
members of the Commission on Appointments which composition is unconstitutional,
pending resolution of the instant Petition;
Declar[ation that] the composition of the Commission on Appointments [is] null and void
insofar as it violates the proportional party representation requirement mandated by
Article VI, Section 18 of the 1987 Philippine Constitution; 2.
Issu[ance of] a Writ of Prohibition against respondents Senate President Manuel Villar,
Speaker Prospero Nograles and Secretary Gemma Aspiras to desist from further
proceeding with their illegal and unlawful actions as officers of the Commission on
Appointments, the composition of which is null and void for being violative of the
proportional party representation requirement under Article VI, Section 18 of the 1987
Philippine Constitution; and 3.
Issu[ance of] a Writ of 4. Mandamus commanding respondents Senate President
Manuel Villar, Speaker Prospero Nograles and Secretary Gemma Aspiras to
reorganize and reconstitute the Commission on Appointments in accordance with the
1987 Constitution.31
_______________
30 Id., at p. 12.
31 Id., at pp. 26-27.
762
2 ANNOTATED
The Court consolidated G.R. No. 18005532 and G.R. No. 183055 on July 1, 2008.
Petitioners in the first petition, G.R. No. 180055, later filed on August 15, 2008 a Motion with Leave of Court to
Withdraw the Petition,33 alleging that with the designation of Representative Alfonso V. Umali, Jr. of the Liberal
Party as a member of the House of Representatives contingent in the CA in replacement of Representative Eduardo
M. Gullas of KAMPI, their petition had become moot and academic.
In his Comment of August 19, 2008 on the secondpetition, respondent Senator Villar proffered the following
arguments:
I.
Petitioner has no standing to file [the] petition.
II.
Petitioner failed to observe the doctrine of primary jurisdiction or prior resort. Each House of
Congress has the sole function of reconstituting or changing the composition of its own contingent
to the CA.
III.
Petitioner is estopped.
IV.
Presumption of regularity in the conduct of official functions.
V.
The extraordinary remedies of Prohibition and Mandamus and the relief of a TRO are not
available to the Petitioner. (Emphasis in the original; underscoring supplied)
34
_______________
32 Id., at p. 106.
33 Id., at pp. 245-257.
34 Id., at p. 133.
763
VOL. 594, JULY 31, 2009 763
In his Comment and Opposition35 filed on September 3, 2008, Speaker Nograles proffered the following
arguments:
A. WITH RESPECT TO THE HOUSE OF REPRESENTATIVES, THE
PETITIONS HAVE ALREADY BECOME MOOT AND ACADEMIC UPON
THE ELECTION OF REPRESENTATIVE ALFONSO V. UMALI, JR.,
MEMBER OF THE LIBERAL PARTY, TO THE HOUSE CONTINGENT TO
THE COMMISSION ON APPOINTMENTS. 36
B. THE ACTS COMPLAINED OF DO NOT CONSTITUTE GRAVE ABUSE OF

DISCRETION THAT WILL JUSTIFY THE ASSUMPTION OF
JURISDICTION BY THE HONORABLE COURT AND THE GRANT OF THE
EXTRAORDINARY WRITS OF MANDAMUS AND PROHIBITION.37
C. THE REMEDY OF THOSE WHO SEEK TO RECONSTITUTE THE HOUSE
CONTINGENT TO THE COMMISSION ON APPOINTMENTS RESTS, IN
THE FIRST INSTANCE, WITH THE HOUSE OF REPRESENTATIVES.38
D. CONSIDERING THE AFOREMENTIONED FACTS AND
JURISPRUDENCE, IT IS SUBMITTED THAT SENATOR MADRIGAL HAS
NO STANDING TO PURSUE THE INSTANT CASE.
E. THE PETITION IS NOT ACCOMPANIED BY A VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING AS REQUIRED BY RULE
65 SECTIONS 2 AND 3 AND SUPREME COURT ADMINISTRATIVE
CIRCULAR NO. 28-91. (Emphasis and underscoring in the original)
_______________
35 Id., at pp. 158-184.

36 Id., at p. 163.
37 Id., at p. 164.
38 Id., at p. 174.
764
4 ANNOTATED
The first petition, G.R. No. 180055, has thus indeed been rendered moot with the designation of a Liberal Party
member of the House contingent to the CA, hence, as prayed for, the petition is withdrawn.
As for the second petition, G.R. No. 183055, it fails.
Senator Madrigal failed to show that she sustained direct injury as a result of the act complained of. 39 Her
petition does not in fact allege that she or her political party PDP-Laban was deprived of a seat in the CA, or that she
or PDP-Laban possesses personal and substantial interest to confer on her/it locus standi.
Senator Madrigal’s primary recourse rests with the respective Houses of Congress and not with this Court. The
doctrine of primary jurisdiction dictates that prior recourse to the House is necessary before she may bring her
petition to court.40 Senator Villar’s invocation of said doctrine is thus well-taken, as is the following observation of
Speaker Nograles, citing Sen. Pimentel, Jr. v. House of Representatives Electoral Tribunal:41
“In order that the remedies of Prohibition and Mandamus may be availed of, there must be “no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of law.”
It is worth recalling that, in the 11th Congress, Senator Aquilino Pimentel advocated the allocation of
a position in the Commission on Appointments for the Party-List Representatives. Just like the Petitioner
in the instant case, Senator Pimentel first wrote to the Senate President, requesting that the Commission
on Appointments be restructured to conform to the constitutional provision on proportional
representation. xxx Without awaiting final determination of the question xxx, Pimentel filed a Petition for
Prohibition and Man-
_______________
39 Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 327.
40 Sen. Pimentel, Jr. v. House of Representatives Electoral Tribunal, 441 Phil. 492, 503; 393 SCRA 227, 237 (2002).
41 Id., at pp. 497-498, 500-503; pp. 236-237.
765
VOL. 594, JULY 31, 2009 765

damus with the Supreme Court. In the said case, the Honorable Court ruled:
“The Constitution expressly grants to the House of Representatives the prerogative, within
constitutionally defined limits, to choose from among its district and party-list representatives those
who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of
the Constitution explicitly confers on the Senate and on the House the authority to elect among their
members those who would fill the 12 seats for Senators and 12 seats for House members in the
Commission on Appointments. Under Section 17, Article VI of the Constitution, each chamber
exercises the power to choose, within constitutionally defined limits, who among their members
would occupy the allotted 6 seats of each chamber’s respective electoral tribunal.
xxxx
Thus, even assuming that party-list representatives comprise a sufficient number and have
agreed to designate common nominees to the HRET and the CA, their primary recourse clearly
rests with the House of Representatives and not this Court. Under Sections 17 and 18, Article VI
of the Constitution, party-list representatives must first show to the House that they possess the
required strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply
with the directive of the Constitution on proportional representation of political parties in the
HRET and the CA can the party-list representatives seek recourse to this Court under its power of
judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is
necessary before petitioners may bring the instant case to the court. Consequently, petitioner’s
direct recourse to this Court is premature.
Following the ruling in Pimentel, it cannot be said that recourse was already had in the House of
Representatives. Furnishing a copy of Petitioner’s letter to the Senate President and to the Speaker of the
House of Representatives does not constitute the primary recourse required prior to the invocation of the
jurisdiction of the Supreme Court. Further, it is the Members of the House who claim to have been
deprived of a seat in the Commission on Ap-
766

6 ANNOTATED
pointments that must first show to the House that they possess the required numerical strength to be
entitled to seats in the Commission on Appointments. Just like Senator Pimentel, demanding seats in the
Commission on Appointments for Congressmen, who have not even raised the issue of its present
composition in the House, is not Senator Madrigal’s affair.” (Italics, underscoring, and emphasis supplied
42
by Representative Nograles)
It bears noting that Senator Villar had already transmitted original copies of Senator Madrigal’s letters to the
Senate Secretary for inclusion in the Order of Business of the Session of the Senate to address her concerns. Senator
Madrigal’s filing of the second petition is thus premature.
Senator Madrigal’s suggestion—that Senators Pilar Juliana Cayetano and Richard Gordon be considered
independent senators such that the latter should not be allowed to be a member of the CA, 43 and that Senator Alan
Peter Cayetano be considered a member of the NP such that he may sit in the CA as his inclusion in NP will entitle
his party to one seat—involves a determination of party affiliations, a question of fact which the Court does not
resolve.
WHEREFORE, the Motion with Leave of Court to Withdraw the Petition in G.R. No. 180055 is GRANTED.
The Petition is WITHDRAWN. The Petition in G.R. No. 183055 is DISMISSED.
SO ORDERED.
G.R. Nos. 132875-76. February 3, 2000. *
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROMEO G. JALOSJOS, accused-appellant.

Public Officers; The privileges and rights arising from having been elected may be enlarged or restricted by law.—True,
election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the
continuity of government and the perpetuation of its benefits. However, inspite of its
_______________
EN BANC.
*
690
90 ANNOTATED
People vs. Jalosjos
importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task
is to ascertain the applicable law.
Same; All top officials of Government—executive, legislative and judicial are subject to the majesty of law; Privilege has
to be granted by law, not inferred from the duties of a position.—We start with the incontestable proposition that all top officials
of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the
public mind that election or appointment to high government office, by itself, frees the official from the common restraints of
general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater
is the requirement of obedience rather than exemption.
Same; The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its
terms.—The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily
addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that the privilege has
always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond
the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations.
Same; Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. —
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like
the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from
arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal,
x x x For offenses punishable by more than six years imprisonment, there was no immunity from arrest.
Same; The confinement of a Congressman charged with a crime punishable by imprisonment of more than six years is not
merely authorized by law, it has constitutional foundations.—The accused-appellant has not given any reason why he should be
exempted from
691
VOL. 324, FEBRUARY 3, 2000 6
91
People vs. Jalosjos
the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to
attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six years is not merely authorized by law, it has constitutional foundations.
Same; One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. —One
rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must protect itself.
It also serves as an example and warning to others. A person charged with crime is taken into custody for purposes of the
administration of justice. As stated in United States v. Gustilo, it is the injury to the public which State action in criminal law
seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied
bail and thus subjected to incarceration if there is risk of his absconding.
Same; Election to the position of Congressman is not a reasonable classification in criminal law enforcement.—We,
therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The
functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their
freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply
to all those belonging to the same class.
GONZAGA-REYES, J., Concurring Opinion
Public Officers; The continued incarceration of accused-appellant is a valid and constitutionally mandated curtailment of
his rights to provisional liberty pending appeal of his conviction.—The trial court found accused-appellant guilty of the crime of
statutory rape, which is punishable by reclusion perpetua. In People v. Divina we held that the trial court’s judgment of
conviction imports that the evidence of guilt of the crime charged is strong. Unquestionably, the continued incarceration of
accused-appellant is a valid and constitutionally mandated curtailment of his rights to provisional liberty pending appeal of his
conviction.
692
92 ANNOTATED
People vs. Jalosjos
Same; Accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua is not
entitled to the privilege of parliamentary immunity.—The accused-appellant, having been convicted of statutory rape which is
punishable by reclusion perpetua, an afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and,
proceeding from the above stated rationale for legislative immunity, a liberal construction of the constitutional privilege is not in
order.
Same; Doctrine of forgiveness or condonation cannot apply to criminal acts which the re-elected official may have
committed during his previous term.—Accused-appellant’s contention that his reelection constitutes a renewal of his mandate and
that such an expression of the popular will should not be rendered inutile by even the police power of the State is hollow.
In Aguinaldo v. Comelec, Aguinaldo v. Santos and in Salalima v. Guingona we laid down the doctrine that a public official
cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to the extent of cutting off the right to remove therefor. This doctrine of
forgiveness or condonation cannot apply to criminal acts which the re-elected official may have committed during his previous
term. The administrative liability of a public officer is separate and distinct from his penal liability.
MOTION to be allowed to discharge duties as Congressman.
The facts are stated in the resolution of the Court.

The Solicitor General for plaintiff-appellee.
Prospero Cresceni; Gancayco, Balasbas & Associates Law Offices; Saguisag & Associates; Balisado Law
Office;and Lazaro Law Firm for accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a full-fledged member of Congress who is now confined at the national
penitentiary while his conviction for statutory rape on two counts
693
VOL. 324, FEBRUARY 3, 2000 693
People vs. Jalosjos
and acts of lasciviousness on six counts is pending appeal. The accused-appellant filed this motion asking that he be
1
allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee
meetings despite his having been convicted in the first instance of a non-bailable offense.
The issue raised is one of first impression.
Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated
persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the
judicial interpretation of legislative privilege in the context of penal law.
The accused-appellant’s “Motion To Be Allowed To Discharge Mandate As Member of House of
Representatives” was filed on the grounds that—
1. 1.Accused-appellant’s reelection being an expression of popular will cannot be rendered inutile by any
ruling, giving priority to any right or interest—not even the police power of the State.
2. 2.To deprive the electorate of their elected representative amounts to taxation without representation.
3. 3.To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the
renewed mandate entrusted to him by the people.
4. 4.The electorate of the First District of Zamboanga del Norte wants their voice to be heard.
5. 5.A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.
6. 6.The House treats accused-appellant as a bona fidemember thereof and urges a co-equal branch of
government to respect its mandate.
7. 7.The concept of temporary detention does not necessarily curtail the duty of accused-appellant to
discharge his mandate.
________________
RTC Decision, pp. 54-55.

1
694
4 ANNOTATED
People vs. Jalosjos
1. 8.Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the “mandate of sovereign will.” He states that the sovereign electorate of
the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by
his constituents, he has the duty to perform the functions of a Con-gressman. He calls this a covenant with his
constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable
procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people
expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its
importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first
task is to ascertain the applicable law.
We start with the incontestable proposition that all top officials of Government-executive, legislative, and
judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or
appointment to high government office, by itself, frees the official from the common restraints of general law.
Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater
is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House of Representatives, the latter
customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision
shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a
special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by
intendment, implication or equitable considerations.
695
VOL. 324, FEBRUARY 3, 2000 695
People vs. Jalosjos
The 1935 Constitution provided in its Article VI on the Legislative Department:
Sec. 15. The Senators and Members of the House of Representatives shall in all cases except treason,
felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of
Congress, and in going to and returning from the same; x x x.
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried
or whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to
and returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive
interpretation of immunity and the intent to confine it within carefully defined parameters is illustrated by the
concluding portion of the provision, to wit:
x x x but the Batasang Pambansa shall surrender the member involved to the custody of the law within
twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall
cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee
meetings has
696
6 ANNOTATED
People vs. Jalosjos
also been removed. For relatively minor offenses, it is enough that Congress is in session.
The accused-appellant argues that a member of Congress’ function to attend sessions is underscored by Section
16 (2), Article VI of the Constitution which states that—
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn
from day to day and may compel the attendance of absent Members in such manner, and under such
penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be exempted from the operation of Section
11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the
reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by
imprisonment of more than six years is not merely authorized by law, it has constitutional foundations.
Accused-appellant’s reliance on the ruling in Aguinaldo v. Santos, which states, inter alia, that—
2
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with the knowledge of his life and character,
and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the
Court, by reason of such fault or misconduct, to practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldocase
involves the administrative removal of a public officer for acts done prior to his present term of office. It does not
apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive
suspension is not
_______________
212 SCRA 768, at 773 [1992].

2
697
VOL. 324, FEBRUARY 3, 2000 697
People vs. Jalosjos
removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or,
otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense.
Society must protect itself. It also serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of the administration of justice. As stated
in United States v. Gustilo, it is the injury to the public which State action in criminal law seeks to redress. It is not
3
the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus
subjected to incarceration if there is risk of his absconding.4
The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by
unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his
regular place of confinement.
It will be recalled that when a warrant for accused-appellant’s arrest was issued, he fled and evaded capture
despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender
voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-
appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its
being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the State’s penal
system.
Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted several motions
to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
_______________
19 Phil. 208, 212.

3
Cubillo v. City Warden, 97 SCRA 771 [1980].

4
698
8 ANNOTATED
People vs. Jalosjos
1. a)to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the
issue of whether to expel/suspend him from the House of Representatives;
2. b)to undergo dental examination and treatment at the clinic of his dentist in Makati City;
3. c)to undergo a thorough medical check-up at the Makati Medical Center, Makati City;
4. d)to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by
chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he
was likewise allowed/permitted to leave the prison premises, to wit:
1. a)to join “living-out” prisoners on “work-volunteer program” for the purpose of 1) establishing a mahogany
seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned
one guard and allowed to use his own vehicle and driver in going to and from the project area and his
place of confinement.
2. b)to continue with his dental treatment at the clinic of his dentist in Makati City.
3. c)to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or
upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free
man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-
appellant’s status to that of a spe-
699
VOL. 324, FEBRUARY 3, 2000 699
People vs. Jalosjos
cial class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard
are the following observations of the Court in Martinez v. Morfe: 5
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is,
to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the
Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience. Necessarily the utmost
latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it
would amount to the creation of a privileged class, without justification in reason, if notwithstanding their
liability for a criminal offense, they would be considered immune during their attendance in Congress and
in going to and returning from the same. There is likely to be no dissent from the proposition that a
legislator or a delegate can perform his functions efficiently and well, without the need for any
transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like
any other citizen considering that there is a strong public interest in seeing to it that crime should not go
unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly
go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown
around an accused by the Constitution, solicitous of the rights of an individual, would constitute an
obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would
remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a
virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be
heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal
branch of government to respect his mandate. He also claims that the concept of temporary detention does not
necessarily curtail his duty to discharge his mandate and that he has always
________________
44 SCRA 37 [1972].

5
700
0 ANNOTATED
People vs. Jalosjos
complied with the conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.
No less than accused-appellant himself admits that like any other member of the House of Representatives “[h]e
is provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives
Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an]
inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents.” Accused-appellant further admits that while under detention,
he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary
benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of
Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-
appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these
acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the
limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a
person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may
no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: “x x x nor shall any person be denied the equal protection of laws.” This simply
6
means that all persons similarly situated shall be treated alike both in
_______________
Art. III, Sec. 1.

6
701
VOL. 324, FEBRUARY 3, 2000 701
People vs. Jalosjos
rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or
7
hostility to any person. Neither partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as
all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the “mandate of the people” are multifarious. The accused-appellant
asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of
250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties
of legislation. Congress continues to function well in the physical absence of one or a few of its members.
Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be
deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The
duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the
duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents.
A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a
different classification from those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in
favor of or against groups or types of individuals.8
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise
of gov-
_______________
Ichong v. Hernandez, 101 Phil. 1155.

7
Skinuer v. Oklahoma, 315 US 535.

8
702
2 ANNOTATED
People vs. Jalosjos
eminent authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.9
We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law
enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those belonging to the same class. 10
Imprisonment is the restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free
exercise of his power of locomotion. 11
More explicitly, “imprisonment” in its general sense, is the restraint of one’s liberty. As a punishment, it is
restraint by judgment of a court or lawful tribunal, and is personal to the accused. The term refers to the restraint on
12
the personal liberty of another; any prevention of his movements from place to place, or of his free action according
to his own pleasure and will. Imprisonment is the detention of another against his will depriving him of his power of
13
locomotion and it “[is] something more than mere loss of freedom. It includes the notion of restraint within limits
14
defined by wall or any exterior barrier.” 15
________________
See Fernando, Constitution of the Philippines, 2nd Edition, p. 548.

9
See Felwa v. Salas, 18 SCRA 606 [1966]; Ichong v. Hernandez, 101 Phil. 1155; Dumlao v. Commission on

10
Elections, 95 SCRA 392 [1980]; Ceniza v. Commission on Elections, 96 SCRA 763 (1980); People v. Cayat, 68 Phil. 12.
Black’s Law Dictionary, Special Deluxe 5th Ed., p. 681.
11
20 Words And Phrases, Permanent Ed., p. 466, citing US v. Safeway Stores [Tex.] C.C.C.A. Kan. 140 F 2d 834, 839
12
and US v. Mitchell, 163 F. 1014, 1016 at p. 470.

Ibid., p. 470, citing Pine v. Okzewski, 170 A. 825, 827, 112 N.J.L. 429.
13
Id., p. 472, citing US v. Benner, 24 Fed. Cas. 1084, 1087.

14
Id., citing Bird v. Jones, 4 N.Y. Leg. Obs. 158, 159.

15
703
VOL. 324, FEBRUARY 3, 2000 703
People vs. Jalosjos
It can be seen from the foregoing that incarceration, by its nature, changes an individual’s status in society. Prison
16
officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as
well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream.
Necessarily, both these demands require the curtailment and elimination of certain rights. 17
Premises considered, we are constrained to rule against the accused-appellant’s claim that re-election to public
office gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena and De Leon, Jr., JJ., concur.
Davide, Jr. (C.J.), And also in the separate opinion of Hon. Justice Reyes.
Bellosillo and Puno, JJ., We concur with the main and separate opinion.
Melo, J., I join the majority as well as the separate opinion.
Vitug, J., I concur in both the ponencia and the separate opinion.
Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes.
Gonzaga-Reyes, J., See separate concurring opinion.
_________________
16
Sheldon, Krantz, 1988 Supplement. The Law of Correction and Prisoners’ Rights, 3rd Ed., p. 121.
17
Ibid.
704
4 ANNOTATED
People vs. Jalosjos
CONCURRING OPINION
GONZAGA-REYES, J.:
For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been convicted by the
trial court of two counts of statutory rape and six counts of acts of lasciviousness, which judgment is currently
pending appeal before this Court. As a member of the House of Representatives, accused-appellant claims that his
constituents are deprived of representation by reason of his incarceration pending appeal of the judgment of
conviction and that he should therefore be allowed to discharge his legislative functions, including attendance of
legislative sessions and committee meetings.
I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that accused-
appellant’s motion is bereft of any legal merit.
The Bill of Rights provides—
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as
may be provided by law. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail shall not be required. (Italics supplied)
1
This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when the
evidence of guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz.—
SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable.—No person charged with a capital offense, or an offense punishable by reclusion perpetua or
life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the
criminal prosecution.
_______________
1987 Constitution, Art. III, sec. 13.

1
705
VOL. 324, FEBRUARY 3, 2000 705
People vs. Jalosjos
The trial court found accused-appellant guilty of the crime of statutory rape, which is punishable by reclusion
perpetua. In People v. Divina we held that the trial court’s judgment of conviction imports that the evidence of guilt
2
of the crime charged is strong. Unquestionably, the continued incarceration of accused-appellant is a valid and
constitutionally mandated curtailment of his rights to provisional liberty pending appeal of his conviction.
Neither may the constitutional provision granting immunity from arrest to legislators provide legal justification
for accused-appellant’s motion. The Constitution states that—
A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than
six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be
questioned nor be held liable in any other place for any speech or debate in the Congress or in any
committee thereof. 3
I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an
unjustified broadening of the privilege from arrest bestowed by the Constitution upon members of Congress. Neither
the legislative history of this provision nor the general principles of official immunity support an expanded
interpretation of such privilege.
Unlike the present Constitution, the 1935 Constitution limited the privilege from arrests to “all cases except
4
treason, felony, and breach of the peace.” This provision was taken from the Philippine Autonomy Act of 1916,
which was in turn based upon the American Constitution. In accordance with
________________
221 SCRA 209 (1993).

2
Art. VI, sec. 11.

3
Art. VI, sec. 15.—The Senators and Members of the House of Representatives shall in all cases except treason,
4
felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of the Congress, and in
going to and returning from the same; and for any speech and debate therein, they shall not be questioned in any other
place.
706
6 ANNOTATED
People vs. Jalosjos
American precedents, the words “treason, felony and breach of the peace” have been construed to include all
indictable offenses. Thus, under the 1935 Constitution the freedom from arrest only encompassed civil arrests.
5
Under the 1973 and 1987 Constitutions, the privilege was broadened to include arrests for crimes punishable by
6
imprisonment of six years or less. Despite the expansion of the privilege, the rationale for granting members of
Congress immunity from arrest remained the same—to ensure that they are not prevented from performing their
legislative duties. In fact, the 1986 Constitutional Commission rejected the proposal of one of its members to
7
expand the scope of the parliamentary immunity to include searches because, unlike arrests, it was not demonstrated
that the conduct of searches would prevent members of Congress from discharging their legislative functions. 8
It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective
performance of official functions. Members of Congress, in particular, who are called upon to exercise their
discretion and judgment in enacting laws responsive to the needs of the people, would certainly be impeded in the
exercise of their legislative functions if every dissatisfied person could compel them to vindicate the
________________
Martinez v. Morfe, 44 SCRA 22 (1972), citing Williamson v. United States, 207 U.S. 425.

5
Art. VIII, sec. 9—A member of the Batasang Pambansa shall, in all offenses punishable by not more than six years
6
imprisonment, be privileged from arrest during his attendance at its sessions, and in going to and returning from the same;
but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty-four hours after
its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. A member
shall not be questioned nor held liable in any other place for any speech or debate in the Batasan or in any committee
thereof.
1987 Constitution, II RECORD 90.
7
Ibid., 178-185.
8
707
VOL. 324, FEBRUARY 3, 2000 707
People vs. Jalosjos
wisdom of their enactments in an action for damages or question their official acts before the courts.9
It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of Congress
from the consequences of his wrongdoings. Thus, despite the widening of its scope to include criminal offenses, the
privilege from arrest is still circumscribed by the nature or the gravity of the offense of which the accused is
charged. Hence, the commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital
punishment, does not fall within the scope of the constitutional privilege. A member of Congress could only invoke
the immunity from arrests for relatively minor offenses, punishable at most by correctional penalties. As enunciated
in Martinez v. Morfe, “when it comes to freedom from arrest, it would amount to the creation of a privileged class,
10
without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered
immune during their attendance in Congress and in going to and returning from the same.”
The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua,an
afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding from the
above stated rationale for legislative immunity, a liberal construction of the constitutional privilege is not in order.
It should also be mentioned that, under the factual circumstances of this case, the applicability of this privilege
from arrest to accused-appellant is already moot and academic. The constitutional provision contemplates that stage
of the criminal process at which personal jurisdiction is sought to be acquired over the accused by means of his
arrest. Accused-appellant is no longer at the point of merely being arrested. As a matter of fact, he has already been
arrested, tried and convicted by the trial court.
________________
Mechem, F. R., A Treatise on the Law of Public Offices and Officers(1890), 431.
9
Supra.
10
708
8 ANNOTATED
People vs. Jalosjos
Accused-appellant’s contention that his re-election constitutes a renewal of his mandate and that such an expression
of the popular will should not be rendered inutile by even the police power of the State is hollow. In Aguinaldo v.
Comelec, Aguinaldo v. Santos and in Salalima v. Guingona we laid down the doctrine that a public official cannot
11 12 13
be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to the extent of cutting off the right to remove therefor. This
doctrine of forgiveness or condonation cannot apply to criminal acts which the re-elected official may have
committed during his previous term. The administrative liability of a public officer is separate and distinct from his
14
penal liability.
Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself
provides for the immunities from the general application of our criminal laws which a Senator or Member of the
House of Representatives may enjoy, it follows that any expansion of such immunities must similarly be based upon
an express constitutional grant.
I vote to deny the motion.
Motion denied.
ANTERO J. POBRE, A.C. No. 7399
Complainant,
Present:

- versus - CHICO-NAZARIO, J.,
Acting Chairperson,
CARPIO MORALES,*
Sen. MIRIAM VELASCO, JR.,
DEFENSOR- SANTIAGO, NACHURA, and
Respondent. PERALTA, JJ.

Promulgated:
August 25, 2009
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J.
Pobre invites the Courts attention to the following excerpts of Senator Miriam
Defensor-Santiagos speech delivered on the Senate floor:
x x x I am not angry. I am irate. I am foaming in the mouth. I am
homicidal. I am suicidal. I am humiliated, debased, degraded. And I am
not only that, I feel like throwing up to be living my middle years in a
country of this nature. I am nauseated. I spit on the face of Chief
Justice Artemio Panganiban and his cohorts in the Supreme Court, I am
no longer interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment but not in
the Supreme Court of idiots x x x.
To Pobre, the foregoing statements reflected a total disrespect on the part of the
speaker towards then Chief Justice Artemio Panganiban and the other members of
the Court and constituted direct contempt of court. Accordingly, Pobre asks that
disbarment proceedings or other disciplinary actions be taken against the lady
senator.

In her comment on the complaint dated April 25, 2007, Senator Santiago,
through counsel, does not deny making the aforequoted statements. She, however,
explained that those statements were covered by the constitutional provision on
parliamentary immunity, being part of a speech she delivered in the discharge of
her duty as member of Congress or its committee. The purpose of her speech,
according to her, was to bring out in the open controversial anomalies in
governance with a view to future remedial legislation. She averred that she wanted
to expose what she believed to be an unjust act of the Judicial Bar Council [JBC],
which, after sending out public invitations for nomination to the soon to-be vacated
position of Chief Justice, would eventually inform applicants that only incumbent
justices of the Supreme Court would qualify for nomination. She felt that the JBC
should have at least given an advanced advisory that non-sitting members of the
Court, like her, would not be considered for the position of Chief Justice.

The immunity Senator Santiago claims is rooted primarily on the provision
of Article VI, Section 11 of the Constitution, which provides: A Senator or
Member of the House of Representative shall, in all offenses punishable by not
more than six years imprisonment, be privileged from arrest while the Congress is
in session. No member shall be questioned nor be held liable in any other place
for any speech or debate in the Congress or in any committee
thereof. Explaining the import of the underscored portion of the provision, the
Court, in Osmea, Jr. v. Pendatun, said:
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of the
democratic world. As old as the English Parliament, its purpose is to
enable and encourage a representative of the public to discharge his
public trust with firmness and success for it is indispensably necessary
that he should enjoy the fullest liberty of speech and that he should be
protected from resentment of every one, however, powerful, to whom
the exercise of that liberty may occasion offense. [1]

As American jurisprudence puts it, this legislative privilege is founded upon
long experience and arises as a means of perpetuating inviolate the functioning
process of the legislative department. Without parliamentary immunity, parliament,
or its equivalent, would degenerate into a polite and ineffective debating
forum. Legislators are immune from deterrents to the uninhibited discharge of their
legislative duties, not for their private indulgence, but for the public good. The
privilege would be of little value if they could be subjected to the cost and
inconvenience and distractions of a trial upon a conclusion of the pleader, or to the
hazard of a judgment against them based upon a judges speculation as to the
motives.[2]

This Court is aware of the need and has in fact been in the forefront in
upholding the institution of parliamentary immunity and promotion of free speech.
Neither has the Court lost sight of the importance of the legislative and oversight
functions of the Congress that enable this representative body to look diligently
into every affair of government, investigate and denounce anomalies, and talk
about how the country and its citizens are being served. Courts do not interfere
with the legislature or its members in the manner they perform their functions in
the legislative floor or in committee rooms. Any claim of an unworthy purpose or
of the falsity and mala fides of the statement uttered by the member of the
Congress does not destroy the privilege.[3] The disciplinary authority of the
assembly[4] and the voters, not the courts, can properly discourage or correct such
abuses committed in the name of parliamentary immunity.[5]

For the above reasons, the plea of Senator Santiago for the dismissal of the
complaint for disbarment or disciplinary action is well taken. Indeed, her privilege
speech is not actionable criminally or in a disciplinary proceeding under the Rules
of Court. It is felt, however, that this could not be the last word on the matter.

The Court wishes to express its deep concern about the language Senator
Santiago, a member of the Bar, used in her speech and its effect on the
administration of justice. To the Court, the lady senator has undoubtedly crossed
the limits of decency and good professional conduct. It is at once apparent that her
statements in question were intemperate and highly improper in substance. To
reiterate, she was quoted as stating that she wanted to spit on the face of Chief
Justice Artemio Panganiban and his cohorts in the Supreme Court, and calling the
Court a Supreme Court of idiots.

The lady senator alluded to In Re: Vicente Sotto.[6] We draw her attention to
the ensuing passage in Sotto that she should have taken to heart in the first place:

x x x [I]f the people lose their confidence in the honesty and
integrity of this Court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos would be the result.

No lawyer who has taken an oath to maintain the respect due to the courts
should be allowed to erode the peoples faith in the judiciary. In this case, the lady
senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of
Professional Responsibility, which respectively provide:

Canon 8, Rule 8.01.A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or otherwise
improper.

Canon 11.A lawyer shall observe and maintain the respect due to
the courts and to the judicial officers and should insist on similar conduct
by others.

Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements
speak for themselves. She was a former Regional Trial Court judge, a law
professor, an oft-cited authority on constitutional and international law, an author
of numerous law textbooks, and an elected senator of the land. Needless to stress,
Senator Santiago, as a member of the Bar and officer of the court, like any other, is
duty-bound to uphold the dignity and authority of this Court and to maintain the
respect due its members. Lawyers in public service are keepers of public faith and
are burdened with the higher degree of social responsibility, perhaps higher than
their brethren in private practice.[7] Senator Santiago should have known, as any
perceptive individual, the impact her statements would make on the peoples faith
in the integrity of the courts.

As Senator Santiago alleged, she delivered her privilege speech as a prelude
to crafting remedial legislation on the JBC. This allegation strikes the Court as an
afterthought in light of the insulting tenor of what she said. We quote the passage
once more:

x x x I am not angry. I am irate. I am foaming in the mouth. I am
homicidal. I am suicidal. I am humiliated, debased, degraded. And I am
not only that, I feel like throwing up to be living my middle years in a
country of this nature. I am nauseated. I spit on the face of Chief
Justice Artemio Panganiban and his cohorts in the Supreme Court, I am
no longer interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment but not in
the Supreme Court of idiots x x x. (Emphasis ours.)

A careful re-reading of her utterances would readily show that her
statements were expressions of personal anger and frustration at not being
considered for the post of Chief Justice. In a sense, therefore, her remarks were
outside the pale of her official parliamentary functions. Even parliamentary
immunity must not be allowed to be used as a vehicle to ridicule, demean, and
destroy the reputation of the Court and its magistrates, nor as armor for personal
wrath and disgust. Authorities are agreed that parliamentary immunity is not an
individual privilege accorded the individual members of the Parliament or
Congress for their personal benefit, but rather a privilege for the benefit of the
people and the institution that represents them.

To be sure, Senator Santiago could have given vent to her anger without
indulging in insulting rhetoric and offensive personalities.

Lest it be overlooked, Senator Santiagos outburst was directly traceable to
what she considered as an unjust act the JBC had taken in connection with her
application for the position of Chief Justice. But while the JBC functions under the
Courts supervision, its individual members, save perhaps for the Chief Justice who
sits as the JBCs ex-officiochairperson,[8] have no official duty to nominate
candidates for appointment to the position of Chief Justice. The Court is, thus, at a
loss to understand Senator Santiagos wholesale and indiscriminate assault on the
members of the Court and her choice of critical and defamatory words against all
of them.

At any event, equally important as the speech and debate clause of Art. VI,
Sec. 11 of the Constitution is Sec. 5(5) of Art. VIII of the Constitution that
provides:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of the law, the Integrated Bar, and legal
assistance to the underprivileged. (Emphasis ours.)

The Court, besides being authorized to promulgate rules concerning
pleading, practice, and procedure in all courts, exercises specific authority to
promulgate rules governing the Integrated Bar with the end in view that the
integration of the Bar will, among other things:

(4) Shield the judiciary, which traditionally cannot defend itself
except within its own forum, from the assaults that politics and self
interest may level at it, and assist it to maintain its integrity, impartiality
and independence;

xxxx

(11) Enforce rigid ethical standards x x x. [9]

In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda,[10] we
reiterated our pronouncement in Rheem of the Philippines v. Ferrer[11] that the duty
of attorneys to the courts can only be maintained by rendering no service involving
any disrespect to the judicial office which they are bound to uphold. The Court
wrote in Rheem of the Philippines:

x x x As explicit is the first canon of legal ethics which
pronounces that [i]t is the duty of a lawyer to maintain towards the
Courts a respectful attitude, not for the sake of the temporary incumbent
of the judicial office, but for the maintenance of its supreme importance.
That same canon, as a corollary, makes it peculiarly incumbent upon
lawyers to support the courts against unjust criticism and clamor. And
more. The attorneys oath solemnly binds him to a conduct that should be
with all good fidelity x x x to the courts.

Also, in Sorreda, the Court revisited its holding in Surigao Mineral
Reservation Board v. Cloribel[12] that:

A lawyer is an officer of the courts; he is, like the court itself, an
instrument or agency to advance the ends of justice. His duty is to
uphold the dignity and authority of the courts to which he owes fidelity,
not to promote distrust in the administration of justice. Faith in the
courts, a lawyer should seek to preserve. For, to undermine the judicial
edifice is disastrous to the continuity of government and to the
attainment of the liberties of the people. Thus has it been said of a
lawyer that [a]s an officer of the court, it is his sworn and moral duty to
help build and not destroy unnecessarily that high esteem and regard
towards the courts so essential to the proper administration of justice. [13]
The lady senator belongs to the legal profession bound by the exacting
injunction of a strict Code. Society has entrusted that profession with the
administration of the law and dispensation of justice. Generally speaking, a lawyer
holding a government office may not be disciplined as a member of the Bar for
misconduct committed while in the discharge of official duties, unless said
misconduct also constitutes a violation of his/her oath as a lawyer.[14]

Lawyers may be disciplined even for any conduct committed in their private
capacity, as long as their misconduct reflects their want of probity or good
demeanor,[15] a good character being an essential qualification for the admission to
the practice of law and for continuance of such privilege. When the Code of
Professional Responsibility or the Rules of Court speaks of conduct or misconduct,
the reference is not confined to ones behavior exhibited in connection with the
performance of lawyers professional duties, but also covers any misconduct,
whichalbeit unrelated to the actual practice of their professionwould show them to
be unfit for the office and unworthy of the privileges which their license and the
law invest in them.[16]

This Court, in its unceasing quest to promote the peoples faith in courts and
trust in the rule of law, has consistently exercised its disciplinary authority on
lawyers who, for malevolent purpose or personal malice, attempt to obstruct the
orderly administration of justice, trifle with the integrity of courts, and embarrass
or, worse, malign the men and women who compose them. We have done it in the
case of former Senator Vicente Sotto in Sotto, in the case of Atty. Noel Sorreda
in Sorreda, and in the case of Atty. Francisco B. Cruz in Tacordan v. Ang[17] who
repeatedly insulted and threatened the Court in a most insolent manner.

The Court is not hesitant to impose some form of disciplinary sanctions on
Senator/Atty. Santiago for what otherwise would have constituted an act of utter
disrespect on her part towards the Court and its members. The factual and legal
circumstances of this case, however, deter the Court from doing so, even without
any sign of remorse from her. Basic constitutional consideration dictates this kind
of disposition.

We, however, would be remiss in our duty if we let the Senators offensive
and disrespectful language that definitely tended to denigrate the institution pass
by. It is imperative on our part to re-instill in Senator/Atty. Santiago her duty to
respect courts of justice, especially this Tribunal, and remind her anew that the
parliamentary non-accountability thus granted to members of Congress is not to
protect them against prosecutions for their own benefit, but to enable them, as the
peoples representatives, to perform the functions of their office without fear of
being made responsible before the courts or other forums outside the congressional
hall.[18] It is intended to protect members of Congress against government pressure
and intimidation aimed at influencing the decision-making prerogatives of
Congress and its members.

The Rules of the Senate itself contains a provision on Unparliamentary Acts
and Language that enjoins a Senator from using, under any circumstance,
offensive or improper language against another Senator or against any public
institution.[19] But as to Senator Santiagos unparliamentary remarks, the Senate
President had not apparently called her to order, let alone referred the matter to the
Senate Ethics Committee for appropriate disciplinary action, as the Rules dictates
under such circumstance.[20] The lady senator clearly violated the rules of her own
chamber. It is unfortunate that her peers bent backwards and avoided imposing
their own rules on her.

Finally, the lady senator questions Pobres motives in filing his complaint,
stating that disciplinary proceedings must be undertaken solely for the public
welfare. We cannot agree with her more. We cannot overstress that the senators
use of intemperate language to demean and denigrate the highest court of the land
is a clear violation of the duty of respect lawyers owe to the courts.[21]

Finally, the Senator asserts that complainant Pobre has failed to prove that
she in fact made the statements in question. Suffice it to say in this regard that,
although she has not categorically denied making such statements, she has
unequivocally said making them as part of her privilege speech. Her implied
admission is good enough for the Court.

WHEREFORE, the letter-complaint of Antero J. Pobre
against Senator/Atty. Miriam Defensor-Santiago is, conformably to Art. VI, Sec.
11 of the Constitution, DISMISSED.

SO ORDERED.

G.R. No. 167173. December 27, 2007. *
STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON MORRIS, SUNDARA RAMESH, OWEN
BELMAN, SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL GONZALES, MA. ELLEN
VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, RAMONA BERNAD, MICHAELANGELO AGUILAR,
and FERNAND TANSINGCO, petitioners, vs. SENATE COMMITTEE ON BANKS, FINANCIAL
INSTITUTIONS AND CURRENCIES, as represented by its Chairperson, HON. EDGARDO J. ANGARA,
respondent.
Legislature; Inquiries in Aid of Legislation; Judgments; Central to the Court’s ruling in Bengzon, Jr. v. Senate Blue
Ribbon Committee, 203 SCRA 767 (1991)—that the Senate Blue Ribbon Committee was without any constitutional mooring to
conduct the legislative investigation—was the Court’s dete rmination that the intended inquiry was not in aid of legislation. —It
is true that in Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had already been
acquired by the Sandiganbayan, and to
_______________
*
EN BANC.
457
VOL. 541, DECEMBER 27, 2007 4

57
Standard Chartered Bank (Philippine Branch)
vs. Senate Committee on Banks, Financial
Institutions and Currencies
allow the [Senate Blue Ribbon] Committee to investigate the matter would create the possibility of conflicting judgments;
and that the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain of judicial
jurisdiction that had set in much earlier. To the extent that, in the case at bench, there are a number of cases already pending in
various courts and administrative bodies involving the petitioners, relative to the alleged sale of unregistered foreign securities,
there is a resemblance between this case and Bengzon. However, the similarity ends there. Central to the Court’s ruling
in Bengzon—that the Senate Blue Ribbon Committee was without any constitutional mooring to conduct the legislative
investigation—was the Court’s determination that the intended inquiry was not in aid of legislation. The Court found that the
speech of Senator Enrile, which sought such investigation contained no suggestion of any contemplated legislation; it merely
called upon the Senate to look into possible violations of Section 5, Republic Act No. 3019.
Same; Same; Separation of Powers; The mere filing of a criminal or an administrative complaint before a court or a

quasi-judicial body should not automatically bar the conduct of legislative investigation—the exercise of sovereign legislative
authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an
administrative investigation.— The mere filing of a criminal or an administrative complaint before a court or a quasi-judicial
body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any
intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the
exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made
subordinate to a criminal or an administrative investigation. As succinctly stated in the landmark case Arnault v. Nazareno, 87
Phil. 29 (1950)—[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—
which is not infrequently true—recourse must be had to others who possess it.
458

58 ANNOTATED
Same; Same; Same; Contempt; The exercise by Congress or by any of its committees of the power to punish contempt is
based on the principle of self-preservation—as the branch of the government vested with the legislative power, independently of
the judicial branch, it can assert its authority and punish contumacious acts against it. — The exercise by Congress or by any of
its committees of the power to punish contempt is based on the principle of self-preservation. As the branch of the government
vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts
against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign
character of the legislature as one of the three independent and coordinate branches of government. In this case, petitioners’
imputation that the investigation was “in aid of collection” is a direct challenge against the authority of the Senate Committee, as
it ascribes ill motive to the latter. In this light, we find the contempt citation against the petitioners reasonable and justified.
Same; Same; Contempt; It is axiomatic that the power of legislative investigation includes the power to compel the
attendance of witnesses, and corollary to the power to compel the attendance of witnesses is the power to ensure that said
witnesses would be available to testify in the legislative investigation.—It is axiomatic that the power of legislative investigation
includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the
power to ensure that said witnesses would be available to testify in the legislative investigation. In the case at bench, considering
that most of the officers of SCBPhilippines are not Filipino nationals who may easily evade the compulsive character of
respondent’s summons by leaving the country, it was reasonable for the respondent to request the assistance of the Bureau of
Immigration and Deportation to prevent said witnesses from evading the inquiry and defeating its purpose. In any event, no HDO
was issued by a court. The BID instead included them only in the Watch List, which had the effect of merely delaying
petitioners’ intended travel abroad for five (5) days, provided no HDO is issued against them.
Same; Same; Same; Right to Privac y; Right to Information; Rational Basis Relationship Test; While it is true that
Section 21, Article VI of the Constitution, guarantees respect for the rights of persons
459
VOL. 541, DECEMBER 27, 2007 4

59
affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a
legitimate congressional inquiry; The right of the people to access information on matters of public concern generally prevails
over the right to privacy of ordinary financial transactions; Under the rational basis relationship test, there is no infringement of
the individual’s right to privacy where the requirement to disclose information is for a valid purpose, such as, to ensure that the
government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities.
—With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected
by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional
inquiry. In Sabio v. Gordon, 504 SCRA 704 (2006), we have held that the right of the people to access information on matters of
public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the
right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship
test, as laid down in Morfe v. Mutuc, 22 SCRA 424 (1968), there is no infringement of the individual’s right to privacy as the
requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in
regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose
constitutes a reason compelling enough to proceed with the assailed legislative investigation.
Same; Same; Same; Right against Self-Incrimination; Witnesses; The right of the accused against self-incrimination is

extended in administrative investigations that partake of the nature of or are analogous to criminal proceedings—the privilege
has consistently been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not.—As regards the issue of self-incrimination, the petitioners, officers of SCB-
Philippines, are not being indicted as accused in a criminal proceeding. They were summoned by respondent merely as resource
persons, or as witnesses, in a legislative inquiry. As distinguished by this Court—[An] accused occupies a different tier of
protection from an ordinary witness. Whereas an
460

60 ANNOTATED
ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an
incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all
questions. Concededly, this right of the accused against self-incrimination is extended to respondents in administrative
investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently been held to
extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be visited upon a witness, whether
a party or not. However, in this case, petitioners neither stand as accused in a criminal case nor will they be subjected by the
respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent,
although they may invoke the privilege when a question calling for an incriminating answer is propounded.
Same; Same; Same; Same; Same; Separation of Powers; It may be conceded that Congress is without authority to

compel disclosures for the purpose of aiding the prosecution of pending suits but the authority of that body, directly or through
its Committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information
sought to be elicited may also be of use in such suits; The prosecution of offenders by the prosecutorial agencies and the trial
before the courts is for the punishment of persons who transgress the law while the intent of legislative inquiries, on the other
hand, is to arrive at a policy determination, which may or may not be enacted into law. —Petitioners’ argument, that the
investigation before respondent may result in a recommendation for their prosecution by the appropriate government agencies,
such as the Department of Justice or the Office of the Ombudsman, does not persuade. As held in Sinclair v. United States, 279
U.S. 263, 73 L ed. 692, 698 (1928)—It may be conceded that Congress is without authority to compel disclosures for the purpose
of aiding the prosecution of pending suits; but the authority of that body, directly or through its Committees, to require pertinent
disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use
in such suits. x x x It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate
resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action. The
prosecution of offenders by the prosecutorial
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61
agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative
inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law.
Same; Same; Same; Same; Same; Same; Except only when the Congress and/or its Committees exercises the power to
punish for contempt, it cannot penalize violators even if there is overwhelming evidence of criminal culpability—it can only
recommend measures to address or remedy whatever irregularities may be unearthed during the investigation, although it may
include in its Report a recommendation for the criminal indictment of persons who may appear liable. —Except only when it
exercises the power to punish for contempt, the respondent, as with the other Committees of the Senate or of the House of
Representatives, cannot penalize violators even if there is overwhelming evidence of criminal culpability. Other than proposing
or initiating amendatory or remedial legislation, respondent can only recommend measures to address or remedy whatever
irregularities may be unearthed during the investigation, although it may include in its Report a recommendation for the criminal
indictment of persons who may appear liable. At best, the recommendation, along with the evidence, contained in such a Report
would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.

Romulo, Mabanta, Buenaventura, Sayoc and Delos Angeles for petitioners.
Senate Legal Counsel and Jeri Alanz A. Banta for respondent.
NACHURA, J.:
Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary Restraining Order and/or Injunction)
dated and filed on March 11, 2005 by petitioners against respondent Senate Committee on Banks, Financial
Institutions
462
ANNOTATED
Standard Chartered Bank (Philippine Branch) vs.
Senate Committee on Banks, Financial Institutions
and Currencies
and Currencies, as represented by its Chairperson Edgardo J. Angara (respondent).
Petitioner Standard Chartered Bank (SCB)-Philippines is an institution incorporated in England with limited
liability and is licensed to engage in banking, trust, and other related operations in the Philippines. Petitioners Paul
Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani Chandrashekar, Marivel Gonzales, Ma.
Ellen Victor, Chona G. Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco
are the Chief Executive Officer, Chief Operations Officer, Country Head of Consumer Banking, General Manager
for Credit Card and Personal Loans, Chief Financial Officer, Legal and Compliance Officer, former Trust and
Investment Services Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services, Head of
Client Relationships, and the Head of Global Markets of SCB-Philippines, respectively. Respondent, on the other
hand, is one of the permanent committees of the Senate of the Philippines.
The petition seeks the issuance of a temporary restraining order (TRO) to enjoin respondent from (1) proceeding
with its inquiry pursuant to Philippine Senate (P.S.) Resolution No. 166; (2) compelling petitioners who are officers
of petitioner SCB-Philippines to attend and testify before any further hearing to be conducted by respondent,
particularly that set on March 15, 2005; and (3) enforcing any hold-departure order (HDO) and/or putting the
petitioners on the Watch List. It also prays that judgment be rendered (1) annulling the subpoenae ad
testificandum and duces tecum issued to petitioners, and (2) prohibiting the respondent from compelling petitioners
to appear and testify in the inquiry being conducted pursuant to P.S. Resolution No. 166.
The facts are as follows:
On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a privilege speech
enti-
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tled “Arrogance of Wealth” before the Senate based on a letter from Atty. Mark R. Bocobo denouncing SCB-
1
Philippines for selling unregistered foreign securities in violation of the Securities Regulation Code (R.A. No. 8799)
and urging the Senate to immediately conduct an inquiry, in aid of legislation, to prevent the occurrence of a similar
fraudulent activity in the future. Upon motion of Senator Francis Pangilinan, the speech was referred to respondent.
Prior to the privilege speech, Senator Enrile had introduced P.S. Resolution No. 166, to wit:
2
RESOLUTION
DIRECTING THE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES,

TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF
UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD CHARTERED BANK, WHICH
RESULTED IN BILLIONS OF PESOS OF LOSSES TO THE INVESTING PUBLIC
WHEREAS, Republic Act No. 7721, otherwise known as the “Law Liberalizing the Entry and Scope
of Operations of Foreign Banks in the Philippines,” was approved on May 18, 1994 to promote greater
participation of foreign banks in the Philippine Banking Industry that will stimulate economic growth and
serve as a channel for the flow of funds into the economy;
WHEREAS, to promote greater competition in the Philippine Banking Industry, foreign banks were
accorded the same privileges, allowed to perform the same functions and subjected to the same
limitations under relevant banking laws imposed upon domestic banks;
WHEREAS, Standard Chartered Bank was among the foreign banks granted the privilege to do
business in our country under Republic Act No. 7721;
WHEREAS, there are complaints against Standard Chartered Bank whose actions have reportedly
defrauded hundreds of Filipino
_______________
1
Rollo, pp. 63-72.
2
Id., at pp. 59-60.
464
ANNOTATED
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investors of billions of pesos through the sale of unregistered securities in the form of high-risk mutual
funds falsely advertised and marketed as safe investment havens;
WHEREAS, there are reports that Standard Chartered Bank clearly knew that its actions were
violative of Philippine banking and securities laws but cleverly disguised its illegal acts through the use of
pro-forma agreements containing waivers of liability in favor of the bank;
WHEREAS, there are reports that in the early stages of conducting these questionable activities, the
Bangko Sentral ng Pilipinas warned and eventually fined Standard Chartered Bank a measly P30,000 for
violating Philippine banking laws;
WHEREAS, the particular operations of Standard Chartered Bank may constitute “conducting
business in an unsafe and unsound manner,” punishable under Section 37 of Republic Act No. 7653 and
should have drawn the higher penalty of revocation of its quasibanking license;
WHEREAS, Republic Act No. 8791 or the “General Banking Act of 2000” deems a particular act or
omission as conducting business in an unsafe and unsound manner as follows:
“Section 56.2 The act or omission has resulted or may result in material loss or damage or abnormal risk to the
institution’s depositors, creditors, investors, stockholders or to the Bangko Sentral or to the public in general.”
WHEREAS, the sale of unregistered securities is also a clear violation of Republic Act No. 8799 or
“The Securities Regulation Code of 2000” which states:
“Section 8.1 Securities shall not be sold or offered for sale or distribution within the Philippines, without a
registration statement duly filed with and approved by the Commission. Prior to such sale, information on the
securities, in such form and with such substance as the Commission may prescribe, shall be made available to each
prospective purchaser.”
WHEREAS, the Securities and Exchange Commission (SEC) reportedly issued a Cease-and-Desist
Order (CDO) against Standard Chartered Bank for the sale of these unregistered securities but the case
was reportedly settled administratively and dismissed after Standard Chartered Bank paid a fine of P7
Million;
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and Currencies
WHEREAS, the SEC reportedly made an official finding that Standard Chartered Bank actively engaged
in promoting and marketing the so-called “Global Third Party Mutual Funds” to the investing public and
even set revenue quotas for the sale of these funds;
WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to
protect the investing public from fraudulent practices;
WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in a manner that would protect the investing public;
WHEREAS, there is a need for remedial legislation to address the situation, having in mind the
imposition of proportionate penalties to offending entities and their directors, officers and representatives
among other additional regulatory measures;
Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to direct the Committee on
Banks, Currencies, and Financial Institutions, to conduct an inquiry, in aid of legislation, into the reported
sale of unregistered and high-risk securities by Standard Chartered Bank which resulted in billions of
losses to the investing public.”
Acting on the referral, respondent, through its Chairperson, Senator Edgardo J. Angara, set the initial hearing on
February 28, 2005 to investigate, in aid of legislation, the subject matter of the speech and resolution filed by
Senator Enrile.
Respondent invited petitioners, among others, to attend the hearing, requesting them to submit their written
position paper. Petitioners, through counsel, submitted to respondent a letter dated February 24, 2005 presenting
3
their position, particularly stressing that there were cases pending in court allegedly involving the same issues
subject of the legislative inquiry, thereby posing a challenge to the jurisdiction of respondent to continue with the
inquiry.
_______________
3
Id., at pp. 73-83.
466
ANNOTATED
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On February 28, 2005, respondent commenced the investigation. Senator Enrile inquired who among those invited
as resource persons were present and who were absent. Thereafter, Senator Enrile moved that subpoenae be issued
to those who did not attend the hearing and that the Senate request the Department of Justice, through the Bureau of
Immigration and Deportation, to issue an HDO against them and/or include them in the Bureau’s Watch List.
Senator Juan Flavier seconded the motion and the motion was approved.
Respondent then proceeded with the investigation proper. Towards the end of the hearing, petitioners, through
counsel, made an Opening Statement that brought to the attention of respondent the lack of proper authorization
4
from affected clients for the bank to make disclosures of their accounts and the lack of copies of the accusing
documents mentioned in Senator Enrile’s privilege speech, and reiterated that there were pending court cases
regarding the alleged sale in the Philippines by SCB-Philippines of unregistered foreign securities.
The February 28, 2005 hearing was adjourned without the setting of the next hearing date. However, petitioners
were later served by respondent with subpoenae ad testificandum and duces tecum to compel them to attend and
testify at the hearing set on March 15, 2005. Hence, this petition.
The grounds relied upon by petitioners are as follows:
I.
THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING AN
INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING
INTO THE ISSUE OF WHETHER THE STANDARD CHARTERED BANK HAD SOLD
UNREGISTERED FOREIGN SECURITIES IN THE PHILIPPINES. SAID ISSUE HAS LONG BEEN
THE SUBJECT OF CRIMINAL AND CIVIL AC-
_______________
4
Id., at pp. 86-90.
467
VOL. 541, DECEMBER 27, 2007 467
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TIONS NOW PENDING BEFORE THE COURT OF APPEALS, REGIONAL TRIAL COURT OF
PASIG CITY, METROPOLITAN TRIAL COURT OF MAKATI CITY AND THE PROSECUTOR’S
OFFICE OF MAKATI CITY.
II.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION BY CONDUCTING AN INVESTIGATION, PURPORTEDLY “IN AID OF
LEGISLATION,” BUT IN REALITY IN “AID OF COLLECTION” BY A HANDFUL OF TWO (2)
CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR
ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS WITHIN THE PROVINCE OF
THE COURT RATHER THAN OF THE LEGISLATURE.
III.
THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN COMPELLING
PETITIONERS, SOME OF WHOM ARE RESPONDENTS IN THE PENDING CRIMINAL AND
CIVIL ACTIONS BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS’ RIGHT
AGAINST SELF-INCRIMINATION AND RIGHT TO PURSUE AND DEFEND THEIR CAUSE IN
COURT RATHER THAN ENGAGE IN TRIAL BY PUBLICITY—A CLEAR VIOLATION OF DUE
PROCESS, RIGHT TO PRIVACY AND TO TRAVEL.
IV.
THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION BY DISREGARDING ITS OWN RULES. 5
Petitioners argue that respondent has no jurisdiction to conduct the inquiry because its subject matter is the very
same subject matter of the following cases, to wit:
1. (a)CA-G.R. SP No. 85078, entitled “Manuel V. Baviera vs. Hon. Esperanza P. Rosario, et al., pending
before the 9th Division of
_______________
5
Id., at pp. 15-16.
468
ANNOTATED
and Currencies
1. the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the dismissal by the
Department of Justice of his complaint against Standard Chartered Bank and its officers accusing them
of SELLING UNREGISTERED FOREIGN SECURITIES IN VIOLATION OF P.D. NO. 1869
(SYNDICATED ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE.
2. (b)CA-G.R. SP No. 86200, entitled “Manuel V. Baviera vs. Hon. Rafael Buenaventura, et al.,” pending
before the 15th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside
the termination for lack of probable cause by the AntiMoney Laundering Council (“AMLC”) of the
investigation of Standard Chartered Bank for money laundering activities BY SELLING
UNREGISTERED FOREIGN SECURITIES.
3. (c)CA-G.R. SP No. 87328, entitled “Manuel V. Baviera vs. Hon. Esperanza Paglinawan Rozario, et al.,”
pending before the 16th Division of the Court of Appeals. The petition seeks to annul and set aside the
dismissal by the Department of Justice of Mr. Baviera’s complaint accusing SCB and its officers of
violation of the Securities Regulation Code by SELLING UNREGISTERED FOREIGN
SECURITIES.
4. (d)Civil Case No. 70173, entitled “Mr. Noel G. Sanchez, et al. vs. Standard Chartered Bank,” pending
before Branch 155 of the Regional Trial Court of Pasig City. Plaintiff seeks damages and recovery of
their investment accusing the bank of SELLING UNREGISTERED FOREIGN SECURITIES.
5. (e)Criminal Case No. 332034, entitled “People of the Philippines vs. Manuel V. Baviera,” pending before
Branch 64 of the Metropolitan Trial Court of Makati City. Petitioner Morris is the private complainant in
this information for extortion or blackmail against Mr. Baviera for demanding the payment of US$2
Million with the threat to EXPOSE THE BANK’S “LARGE SCALE SCAM” CONSISTING [OF]
ILLEGAL SELLING OF UNREGISTERED FOREIGN SECURITIES BY THE BANK, before
various government offices, such as the Department of Justice, the BIR, Bangko Sentral ng Pilipinas,
Regional Trial Courts, and both houses of Congress.
6. (f)Criminal Case No. 331395, entitled “People of the Philippines vs. Manuel V. Baviera,” pending before
Branch 64 of the Metropolitan Trial Court of Makati City. Petitioners Victor and Chona Reyes are the
private complainants in this information for perjury
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VOL. 541, DECEMBER 27, 2007 469
and Currencies
1. committed by Mr. Baviera in securing a hold departure order against the petitioners herein from the
Department of Justice for their alleged involvement in syndicated estafa and swindling BY SELLING
UNREGISTERED FOREIGN SECURITIES.
2. (g)I.S. No. 2004-B-2279-80, entitled “Aurelio Litonjua III and Aurelio Litonjua, Jr. vs. Antonette de los
Reyes, et al.,” pending before the Office of the Prosecutor, Makati City. This is a criminal complaint
accusing SCB and its officers of estafa for SELLING UNREGISTERED FOREIGN SECURITIES. 6
Citing Bengzon, Jr. v. Senate Blue Ribbon Committee, the petitioners claim that since the issue of whether or not
7
SCB-Philippines illegally sold unregistered foreign securities is already preempted by the courts that took
cognizance of the foregoing cases, the respondent, by this investigation, would encroach upon the judicial powers
vested solely in these courts.
The argument is misplaced. Bengzon does not apply squarely to petitioners’ case.
It is true that in Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had
already been acquired by the Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee to investigate the
matter would create the possibility of conflicting judgments; and that the inquiry into the same justiciable
controversy would be an encroachment on the exclusive domain of judicial jurisdiction that had set in much earlier.
To the extent that, in the case at bench, there are a number of cases already pending in various courts and
administrative bodies involving the petitioners, relative to the alleged sale of unregistered foreign securities, there is
a resemblance between this case and Bengzon. However, the similarity ends there.
_______________
Id., at pp. 18-19.

6
G.R. No. 89914, November 20, 1991, 203 SCRA 767, 784.

7
470
ANNOTATED
and Currencies
Central to the Court’s ruling in Bengzon—that the Senate Blue Ribbon Committee was without any constitutional
mooring to conduct the legislative investigation—was the Court’s determination that the intended inquiry was not in
aid of legislation. The Court found that the speech of Senator Enrile, which sought such investigation contained no
suggestion of any contemplated legislation; it merely called upon the Senate to look into possible violations of
Section 5, Republic Act No. 3019. Thus, the Court held that the requested probe failed to comply with a
fundamental requirement of Section 21, Article VI of the Constitution, which states:
“The Senate or the House of Representatives or any of itsrespective committees may conduct inquiries
in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.”
Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding with the legislative investigation in
that case.
Unfortunately for the petitioners, this distinguishing factual milieu in Bengzon does not obtain in the instant
case. P.S. Resolution No. 166 is explicit on the subject and nature of the inquiry to be (and already being) conducted
by the respondent Committee, as found in the last three Whereas clauses thereof, viz.:
“WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to
protect the investing public from fraudulent practices;
WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in a manner that would protect the investing public;
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WHEREAS, there is a need for remedial legislation to address the situation, having in mind the
imposition of proportionate penalties to offending entities and their directors, officers and representatives
among other additional regulatory measures;” (emphasis supplied)
The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error in petitioners’
allegation that the inquiry, as initiated in a privilege speech by the very same Senator Enrile, was simply “to
denounce the illegal practice committed by a foreign bank in selling unregistered foreign securities x x x.” This
fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator Enrile urged
the Senate “to immediately conduct an inquiry, in aid of legislation, so as to prevent the occurrence of a
similar fraudulent activity in the future.”
Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body
should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to
subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative
complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an
essential component, cannot be made subordinate to a criminal or an administrative investigation.
As succinctly stated in the landmark case Arnault v. Nazareno — 8
“[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the legislative
body does not itself pos-
_______________
8
87 Phil. 29, 45 (1950), citing McGrain v. Daugherty, 273 U.S. 135; 71 L. ed. 580, 50 A.L.R. 1 [1927].
472
ANNOTATED
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sess the requisite information—which is not infrequently true—recourse must be had to others who
possess it.”
Neither can the petitioners claim that they were singled out by the respondent Committee. The Court notes that
among those invited as resource persons were officials of the Securities and Exchange Commission (SEC) and the
Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the same critical scrutiny by the respondent
relative to their separate findings on the illegal sale of unregistered foreign securities by SCB-Philippines. It is
obvious that the objective of the investigation was the quest for remedies, in terms of legislation, to prevent the
recurrence of the allegedly fraudulent activity.
Still, petitioners insist that the inquiry conducted by respondent was, in fact, “in aid of collection.” They claim
that Atty. Bocobo and Manuel Baviera, the latter a party to the pending court cases cited by petitioners, were only
seeking a friendly forum so that they could recover their investments from SCB-Philippines; and that the respondent
has allowed itself to be used as the conveniently available vehicle to effect this purpose.
However, as correctly pointed out by respondent in its Comment on the petition, Atty. Bocobo did not file a
complaint before the Senate for the purpose of recovering his investment. On the contrary, and as confirmed during
the initial hearing on February 28, 2005, his letter-complaint humbly requested the Senate to conduct an inquiry into
the purportedly illegal activities of SCB-Philippines, with the end view of preventing the future occurrence of any
similar fraudulent activity by the banks in general. Baviera, on the other hand, was not a “complainant” but merely a
9
witness in the investigation, invited to testify on the alleged illegal sale of unregistered foreign securities by SCB-
Philippines, being one of the supposed victims thereof.
_______________
Rollo, p. 1064.
9
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The Court further notes that when it denied petitioners’ prayer for the issuance of a TRO to restrain the hearing set
on March 15, 2005, respondent proceeded with the investigation. On the said date, outraged by petitioners’
10
imputation that it was conducting the investigation “in aid of collection,” respondent held petitioners, together with
their counsel, Atty. Reynaldo Geronimo, in contempt and ordered their detention for six hours.
Petitioners filed a Motion for Partial Reconsideration of this Court’s Resolution dated March 14, 2005 only with
respect to the denial of the prayer for the issuance of a TRO and/or writ of preliminary injunction, alleging that their
being held in contempt was without legal basis, as the phrase “in aid of collection” partakes of an absolutely
privileged allegation in the petition.
We do not agree. The Court has already expounded on the essence of the contempt power of Congress and its
committees in this wise—
“The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded
upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative
power. How could a legislative body obtain the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such knowledge and information, if it is
impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted
the principle of separation of powers, making each branch supreme within the realm of its respective
authority, it must have intended each department’s authority to be full and complete, independently of
each other’s authority or power. And how could the authority and power become complete if for every act
of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the
judicial department for the appropriate remedy, because it is
_______________
10
Per the Resolution dated March 14, 2005.
474
ANNOTATED
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impotent by itself to punish or deal therewith, with affronts committed against its authority or dignity.” 11
The exercise by Congress or by any of its committees of the power to punish contempt is based on the principle of
selfpreservation. As the branch of the government vested with the legislative power, independently of the judicial
branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches
not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the
three independent and coordinate branches of government. 12
In this case, petitioners’ imputation that the investigation was “in aid of collection” is a direct challenge against
the authority of the Senate Committee, as it ascribes ill motive to the latter. In this light, we find the contempt
citation against the petitioners reasonable and justified.
Furthermore, it is axiomatic that the power of legislative investigation includes the power to compel the
attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that
said witnesses would be available to testify in the legislative investigation. In the case at bench, considering that
most of the officers of SCBPhilippines are not Filipino nationals who may easily evade the compulsive character of
respondent’s summons by leaving the country, it was reasonable for the respondent to request the assistance of the
Bureau of Immigration and Deportation to prevent said witnesses from evading the inquiry and defeating its
purpose. In any event, no HDO was issued by a court. The BID instead included them only in the Watch List, which
had the effect of merely delaying petitioners’ intended
_______________
Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, No. L-72492, November 5,
11
1987, 155 SCRA 421, 429, citing Arnault v. Balagtas, 97 Phil. 358, 370 (1955).
Id., at p. 430.
12
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travel abroad for five (5) days, provided no HDO is issued against them. 13
With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that
privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for
the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be
allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people
14
to access information on matters of public concern generally prevails over the right to privacy of ordinary financial
transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding
compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no
15
infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose,
in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect
the public who invest in foreign securities.
_______________
Under the BID’s Rules and Guideline In Handling Travelers Under Watchlist (November 19, 1999):
13
1. 1.A passenger whose name is in the Bureau’s Watchlist shall be allowed to depart after the lapse of five (5) days
from his first attempt, provided no Hold Departure Order is issued;
2. 2.The head Supervisor and/or Alien Control Officer shall immediately notify the requesting person/agency of the
attempt to leave by the person whose name appears in the watchlist and the said requesting person/agency has
only five (5) days to secure a Hold Departure Order (HDO) from the Department of Justice or the Courts;
otherwise, after five (5) days and there is no HDO issued, the passenger shall be allowed to leave.
G.R. Nos. 174340, 174318, 174177, October 16, 2006, 504 SCRA 704.
14
No. L-20387, January 31, 1968, 22 SCRA 424, citing Whalen v. Roe, 429 U.S. 589 (1977).
15
476
ANNOTATED
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Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative
investigation. 16
As regards the issue of self-incrimination, the petitioners, officers of SCB-Philippines, are not being indicted as
accused in a criminal proceeding. They were summoned by respondent merely as resource persons, or as witnesses,
in a legislative inquiry. As distinguished by this Court—
“[An] accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary
witness may be compelled to take the witness stand and claim the privilege as each question requiring an
incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse
to answer any and all questions.” 17
Concededly, this right of the accused against self-incrimination is extended to respondents in administrative
investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently
been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not.18
However, in this case, petitioners neither stand as accused in a criminal case nor will they be subjected by the
respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before
respondent, although they may invoke the privilege when a question calling for an incriminating answer is
propounded. 19
_______________
16
Supra note 14 at p. 738.
17
Chavez v. Court of Appeals, 133 Phil. 661, 679; 24 SCRA 663, 680 (1968).
18
Bengzon, Jr. v. Senate Blue Ribbon Committee, supra note 7, at p. 786, citing Galman v. Pamaran, 138 SCRA
294 (1985).
19
Senate Rules of Procedure Governing Inquiries in Aid of Legislation, Sec. 19.
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and Currencies
Petitioners’ argument, that the investigation before respondent may result in a recommendation for their prosecution
by the appropriate government agencies, such as the Department of Justice or the Office of the Ombudsman, does
not persuade.
As held in Sinclair v. United States —20
“It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding
the prosecution of pending suits; but the authority of that body, directly or through its Committees, to
require pertinent disclosures in aid of its own constitutional power is not abridged because the
information sought to be elicited may also be of use in such suits. x x x It is plain that investigation of the
matters involved in suits brought or to be commenced under the Senate resolution directing the institution
of suits for the cancellation of the leases might directly aid in respect of legislative action.”
The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of
persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy
determination, which may or may not be enacted into law.
Except only when it exercises the power to punish for contempt, the respondent, as with the other Committees of
the Senate or of the House of Representatives, cannot penalize violators even if there is overwhelming evidence of
criminal culpability. Other than proposing or initiating amendatory or remedial legislation, respondent can only
recommend measures to address or remedy whatever irregularities may be unearthed during the investigation,
although it may include in its Report a recommendation for the criminal indictment of persons who may appear
liable. At best, the recommendation, along with the evidence, contained in such a Report would be persuasive, but it
is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.
_______________
279 U.S. 263, 73 L ed. 692, 698 (1928).

20
478
ANNOTATED
and Currencies
Finally, petitioners sought anew, in their Manifestation and Motion dated June 21, 2006, the issuance by this Court
21
of a TRO and/or writ of preliminary injunction to prevent respondent from submitting its Committee Report No. 75
to the Senate in plenary for approval. However, 16 days prior to the filing of the Manifestation and Motion, or on
June 5, 2006, respondent had already submitted the report to the Senate in plenary. While there is no showing that
the said report has been approved by the Senate, the subject of the Manifestation and Motion has inescapably
become moot and academic.
WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The Manifestation and Motion dated
June 21, 2006 is, likewise, DENIED for being moot and academic.
SO ORDERED.
Puno (C.J.), Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna,Tinga, Chico-Nazario, Velasco, Jr. and Reyes, JJ., concur.
Quisumbing, J ., On Leave.
Leonardo-De Castro, J., No Part.
Petition denied.
Notes.—The exercise of judicial restraint over justiciable issues is not an option before the Supreme Court,
otherwise the Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution.
(Francisco, Jr. vs. House of Representatives, 415 SCRA 44[2003])
The Congress, in common with all the other branches of the Government, must exercise its powers subject to the
limitations placed by the Constitution on governmental action, more particularly, the relevant limitations of the Bill
of Rights. (Sabio vs. Gordon, 504 SCRA 704 [2007])
July 16, 2008. G.R. No. 170516.*

AKBAYAN CITIZENS ACTION PARTY (“AKBAYAN”), PAMBANSANG KATIPUNAN NG MGA
SAMAHAN SA KANAYUNAN (“PKSK”), ALLIANCE OF PROGRESSIVE LABOR (“APL”), VICENTE A.
FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG.
LORENZO R. TAÑADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG.
ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA,
petitioners, vs. THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry
(DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines
Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of
Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of
the Tariff Commission and lead negotiator for Competition Policy and Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as Assistant Director-General of the National Economic Development
Authority (NEDA) and lead negotiator for Trade in Services and Cooperation of the JPEPA, MALOU MONTERO,
in her capacity as Foreign Service Officer I, Office of the Undersecretary for International Economic Relations of
the DFA and lead negotiator for the General and Final Provisions of the
_______________
* EN BANC.
469
VOL. 558, JULY 16, 2008 469

Akbayan Citizens Action Party ("AKBAYAN") vs.
Aquino
JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for
Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of
Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of
Customs and lead negotiator for Customs Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE
IMPERIAL, in her capacity as Director of the Bureau of Local Employment of the Department of Labor and
Employment (DOLE) and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE
GUZMAN, in his capacity as Director of the Board of Investments and lead negotiator for Investment of the JPEPA,
JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards of the DTI and lead
negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for
Intellectual Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the Government
Procurement Policy Board Technical Support Office, the government agency that is leading the negotiations on
Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA, ADONIS
SULIT, in his capacity as lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R.
ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary of the
DFA,**
_______________
** In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the portion for “Respondents,” to wit:
“HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the Philippine Coordinating Committee for the Japan-
Philippines Economic Partnership Agreement, et al.” (Italics supplied) The other respondents are enumerated in the body of the petition.
(Rollo, pp. 20-23) The Court motu proprio included the names of these other respondents in the case title to conform to Sec. 1, par. 2, Rule 7 of
the Rules of Civil Procedure, as well as the ca-
470

ANNOTATED
Aquino
respondents.
Right to Information; Japan-Philippines Economic Partnership Agreement (JPEPA); Judicial

Review; Parties; Locus Standi; In a petition anchored upon the right of the people to information on
matters of public concern, which is a public right by its very nature, petitioners need not show that they
have any legal or special interest in the result, it being sufficient to show that they are citizens and,
therefore, part of the general public which possesses the right.—For a petition for mandamus such as the
one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal
right. Respondents deny that petitioners have such standing to sue. “[I]n the interest of a speedy and
definitive resolution of the substantive issues raised,” however, respondents consider it sufficient to cite a
portion of the ruling in Pimentel v. Office of Executive Secretary, 462 SCRA 622 (2005) which
emphasizes the need for a “personal stake in the outcome of the controversy” on questions of standing. In
a petition anchored upon the right of the people to information on matters of public concern, which is a
public right by its very nature, petitioners need not show that they have any legal or special interest in the
result, it being sufficient to show that they are citizens and, therefore, part of the general public which
possesses the right. As the present petition is anchored on the right to information and petitioners are all
suing in their capacity as citizens and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the
present suit is grounded in jurisprudence.
Same; Same; Same; Moot and Academic Issues; A petition seeking the disclosure of the full text of a
bilateral agreement is not entirely moot where the petitioners also seek to obtain the offers in the course
of the negotiation.—The text of the JPEPA having then been made accessible to the public, the petition
has become moot and academic to the extent that it seeks the disclosure of the “full text” thereof. The
petition is not entirely moot, however, because petition-
_______________
pacities in which they are being sued. Moreover, it inserted therein that respondent Usec. Aquino, as stated in the petition, is also
being sued in his capacity as DTI Undersecretary.
471
VOL. 558, JULY 16, 2008 4

71
Akbayan Citizens Action Party ("AKBAYAN")
vs. Aquino
ers seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in
the course of the negotiations.
Same; Same; To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern; From the nature of the Japan-Philippines
Economic Partnership Agreement (JPEPA) as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution are matters of
public concern.—To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil
Service Commission, 150 SCRA 530 (1987): In determining whether or not a particular information is of
public concern there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply because such matters naturally arouse
the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or affects the public . (Italics
supplied) From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution are matters of
public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus constituting an exception to the right to information
and the policy of full public disclosure.
Same; Same; Diplomatic Negotiations; Privileged Communications; The privileged character of
diplomatic negotiations has been recognized in this jurisdiction.—The privileged character of diplomatic
negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to
information, the Court in Chavez v. PCGG, 299 SCRA 744 (1998), held that “information on inter-
government exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest.” Even earlier, the same privilege was upheld
in People’s Movement for Press Freedom (PMPF) v. Manglapus (G.R. No. 84642, Resolution of the
Court En Banc dated September 13, 1988), wherein the Court discussed the reasons for the privilege in
more precise terms.472

72 ANNOTATED
vs. Aquino
Same; Same; Same; Same; While the final text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) may not be kept perpetually confidential—since there should be “ample opportunity
for discussion before [a treaty] is approved”—the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published; It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that “historic confidentiality”
would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.—Applying the principles adopted
in PMPF v. Manglapus (G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988), it
is clear that while the final text of the JPEPA may not be kept perpetually confidential—since there
should be “ample opportunity for discussion before [a treaty] is approved”—the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese representatives submitted their offers with the understanding that
“historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the
Philippines to deal not only with Japan but with other foreign governments in future negotiations. A
ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during negotiations.
While, on first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve
a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area
of lesser importance in order to obtain more favorable terms in an area of greater national interest.
Same; Same; Same; Same; By hampering the ability of our representatives to compromise, we may
be jeopardizing higher national goals for the sake of securing less critical ones; The privileged nature of
diplomatic negotiations is only presumptive.—Indeed, by hampering the ability of our representatives to
compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is only 473
VOL. 558, JULY 16, 2008 4

73
vs. Aquino
presumptive. For as Senate v. Ermita (488 SCRA 1 [2006]) holds, recognizing a type of information
as privileged does not mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined if there is a public interest
that calls for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Same; Same; Same; Same; Executive Privilege; Presidential Communications Privilege;
Presidential communications are privileged whether they involve matters of national security.—While
there certainly are privileges grounded on the necessity of safeguarding national security such as those
involving military secrets, not all are founded thereon. One example is the “informer’s privilege,” or the
privilege of the Government not to disclose the identity of a person or persons who furnish information of
violations of law to officers charged with the enforcement of that law. The suspect involved need not be
so notorious as to be a threat to national security for this privilege to apply in any given instance.
Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not
only would this be contrary to long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general. Also illustrative is the privilege accorded to presidential communications,
which are presumed privileged without distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege being that x x x [a] frank exchange of
exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is
essential to protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. x x x (Emphasis supplied) In the same way that the privilege for judicial
deliberations does not depend on the nature of the case deliberated upon, so presidential communications
are privileged whether they involve matters of national security. It bears emphasis, however, that the
privilege accorded to presidential communications is not absolute, one significant qualification being that
“the Executive cannot, any more than the other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigations by the proper governmental institutions
into possible criminal wrongdoing.” This qualification applies474

74 ANNOTATED
vs. Aquino
whether the privilege is being invoked in the context of a judicial trial or a congressional
investigation conducted in aid of legislation.
Same; Same; Same; Same; Same; Same; Deliberative Process Privilege; Closely related to the
“presidential communications” privilege is the deliberative process privilege recognized in the United
States, which privilege covers documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are formulated.
—Closely related to the “presidential communications” privilege is the deliberative process
privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears,
Roebuck & Co., 421 US 150, deliberative process covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated. Notably, the privileged status of such documents rests, not on the need to
protect national security but, on the “obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news,” the objective of
the privilege being to enhance the quality of agency decisions. The diplomatic negotiations
privilege bears a close resemblance to the deliberative process and presidential communications
privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.
Same; Same; Same; Same; Same; Same; Clearly, the privilege accorded to diplomatic negotiations
follows as a logical consequence from the privileged character of the deliberative process. —The decision
of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury,
545 F.Supp. 615, May 28, 1982, enlightens on the close relation between diplomatic negotiations and
deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the
U.S. negotiating team during the U.S.-French tax treaty negotiations. Among the points noted therein
were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft
language agreed on, and articles which needed to be amended. Upholding the confidentiality of those
notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty represent a true
example of a475
VOL. 558, JULY 16, 2008 4

75
vs. Aquino
deliberative process. Much give-and-take must occur for the countries to reach an accord. A
description of the negotiations at any one point would not provide an onlooker a summary of the
discussions which could later be relied on as law. It would not be “working law” as the points discussed
and positions agreed on would be subject to change at any date until the treaty was signed by the
President and ratified by the Senate. The policies behind the deliberative process privilege support non-
disclosure.Much harm could accrue to the negotiations process if these notes were revealed. Exposure of
the pre-agreement positions of the French negotiators might well offend foreign governmentsand
would lead to less candor by the U.S. in recording the events of the negotiations process. As several
months pass in between negotiations, this lack of record could hinder readily the U.S. negotiating team.
Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public
confusion would result easily. Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions
and language agreed on. As drafts of regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21,
1982), drafts of treaties should be accorded the same protection. (Emphasis and italics
supplied) Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence
from the privileged character of the deliberative process.
Same; Same; Same; Same; Same; Same; Since, in this jurisdiction, there is no counterpart of the
U.S. Freedom of Information Act, nor is there any statutory requirement similar to Freedom of
Information Act (FOIA) Exemption 5 in particular, Philippine courts, when assessing a claim of privilege
for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being
claimed is indeed supported by public policy, without having to consider if these negotiations fulfill a
formal requirement of being “inter-agency”; The Court sees no reason to modify, much less abandon, the
doctrine in People’s Movement for Press Freedom v. Manglapus, G.R. No. 84642, 13 September 1988.—
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement
similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege
for diplomatic negotiations, are more free to focus directly on the issue of whether the476

76 ANNOTATED
vs. Aquino
privilege being claimed is indeed supported by public policy, without having to consider—as
the CIEL court did—if these negotiations fulfill a formal requirement of being “inter-agency.” Important
though that requirement may be in the context of domestic negotiations, it need not be accorded the same
significance when dealing with international negotiations. There being a public policy supporting a
privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify,
much less abandon, the doctrine in PMPF v. Manglapus (G.R. No. 84642, 13 September 1988).
Same; Same; Same; Same; Same; Same; The privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances—clearly, the privilege for diplomatic negotiations may be invoked
not only against citizens’ demands for information, but also in the context of legislative investigations; It
is the President alone who negotiates treaties, and not even the Senate or the House of Representatives,
unless asked, may intrude upon that process.—While indeed the petitioners in People’s Movement for
Press Freedom (PMPF) v. Manglapus (G.R. No. 84642, 13 September 1988), consisted only of members
of the mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a
controversy such as the present, where the demand for information has come from members of Congress,
not only from private citizens. The privileged character accorded to diplomatic negotiations does not
ipso facto lose all force and effect simply because the same privilege is now being claimed under different
circumstances. The probability of the claim succeeding in the new context might differ, but to say that
the privilege, as such, has no validity at all in that context is another matter altogether. The Court’s
statement in Senate v. Ermita, 488 SCRA 1 (2006), that “presidential refusals to furnish information may
be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informer’s
privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees
of success, in the context of either judicial or legislative investigations,” implies that a privilege, once
recognized, may be invoked under different procedural settings. That this principle holds true particularly
with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus, itself, where the Court
held that it is the President alone who negoti-477
VOL. 558, JULY 16, 2008 4

77
vs. Aquino
ates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude
upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens’ demands for information, but also in the context of legislative investigations.
Same; Same; Same; Same; “Incompatibility Hypothesis”; Without delving into petitioners’
assertions respecting the “incompatibility hypothesis,” the Court notes that the ruling in People’s
Movement for Press Freedom (PMPF) v. Manglapus is grounded more on the nature of treaty
negotiations as such than on a particular socio-political school of thought.—As third and last point
raised against the application of PMPF v. Manglapus, in this case, petitioners proffer that “the socio-
political and historical contexts of the two cases are worlds apart.” They claim that the constitutional
traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of
thought that the requirements of foreign policy and the ideals of transparency were incompatible with
each other or the “incompatibility hypothesis,” while valid when international relations were still
governed by power, politics and wars, are no longer so in this age of international cooperation. Without
delving into petitioners’ assertions respecting the “incompatibility hypothesis,” the Court notes that the
ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that the nature of treaty
negotiations have so changed that “[a]n ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides” no longer “lead[s] to widespread propaganda to
block the negotiations,” or that parties in treaty negotiations no longer expect their communications to be
governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed
to discharge.
Same; Same; Same; Same; The duty to disclose “definite propositions of the government” does not
apply to diplomatic negotiations—even definite propositions of the government may not be disclosed if
they fall under “recognized exceptions”; The privilege for diplomatic negotiations is clearly among the
recognized exceptions.—The following statement in Chavez v. PEA, 384 SCRA 152 (2002), however,
suffices to show that the doctrine in both that case and Chavez v. PCGG, 299 SCRA 744 (1998), with
regard to the duty to disclose “definite propositions of the government” does not apply to diplo- 478

78 ANNOTATED
vs. Aquino
matic negotiations: We rule, therefore, that the constitutional right to information includes official
information on on-going negotiations before a final contract. The information, however, must
constitute definite propositions by the government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar matters affecting national
security and public order. x x x (Emphasis and italics supplied) It follows from this ruling that even
definite propositions of the government may not be disclosed if they fall under “recognized exceptions.”
The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to
the immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Same; Same; Same; Same; There are at least two kinds of public interest that must be taken into
account—one, the presumed public interest in favor of keeping the subject information confidential, and
the other is the public interest in favor of disclosure.—To clarify, there are at least two kinds of public
interest that must be taken into account. One is the presumed public interest in favor of keeping the
subject information confidential, which is the reason for the privilege in the first place, and the other is
the public interest in favor of disclosure, the existence of which must be shown by the party asking for
information.
Same; Same; Same; Same; “Sufficient Showing of Need” Standard; The standard to be employed in
determining whether there is a sufficient public interest in favor of disclosure is the strong and “sufficient
showing of need.”—The criteria to be employed in determining whether there is a sufficient public
interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon, 418 U.S. 683
(1974) Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162
U.S.App.D.C. 183, and In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]). Petitioners have
failed to present the strong and “sufficient showing of need” referred to in the immediately cited cases.
The arguments they proffer to establish their entitlement to the subject documents fall short of this
standard.
Same; Same; Same; Same; The text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) having been published, petitioners have failed to convince this Court that they will not be 479
VOL. 558, JULY 16, 2008 4

79
vs. Aquino
able to meaningfully exercise their right to participate in decision-making unless the initial offers
are also published.—Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that
respondents had presented documents purporting to show that public consultations were conducted on the
JPEPA. Parenthetically, petitioners consider these “alleged consultations” as “woefully selective and
inadequate.” AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and
Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of
whether access to the documents bearing on them is, as petitioners claim, essential to their right to
participate in decision-making. The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to
concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v.
Manglapus, “ample opportunity for discussion before [the treaty] is approved.” The text of the JPEPA
having been published, petitioners have failed to convince this Court that they will not be able to
meaningfully exercise their right to participate in decision-making unless the initial offers are also
published.
Separation of Powers; Presidency; Congress; Tariff Powers; Diplomatic Power; While the power
then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only
by delegation of that body, it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty; Congress, while possessing vast legislative powers,
may not interfere in the field of treaty negotiations.—While the power then to fix tariff rates and other
taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has
long been recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the
validity of the treaty. In this light, the authority of the President to enter into trade agreements with
foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already
inherent in its office. It may not480

80 ANNOTATED
vs. Aquino
be used as basis to hold the President or its representatives accountable to Congress for the conduct
of treaty negotiations. This is not to say, of course, that the President’s power to enter into treaties is
unlimited but for the requirement of Senate concurrence, since the President must still ensure that all
treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the
above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of
treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to
the validity of the treaty under consideration, not to the conduct of negotiations attendant to its
conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a
means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of
petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives
fail to present a “sufficient showing of need” that the information sought is critical to the performance of
the functions of Congress, functions that do not include treaty-negotiation.
Same; Same; Same; Executive Privilege; Failure to claim the privilege during the House Committee
hearings may not be construed as a waiver thereof by the Executive branch where what was received
from the House Committee were mere requests for information, which requests are not compulsory
processes—so long as Congress itself finds no cause to enforce such power, there is no strict necessity to
assert the privilege.—Respondents’ failure to claim the privilege during the House Committee hearings
may not, however, be construed as a waiver thereof by the Executive branch. As the immediately
preceding paragraph indicates, what respondents received from the House Committee and petitioner-
Congressman Aguja were mere requests for information. And as priorly stated, the House Committee
itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then
Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the
same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas
to executive officials—out of respect for their office—until resort to it becomes necessary, the fact
remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for
an assertion of executive privilege. The privilege is an exemption to Congress’ power of inquiry. So long
as Congress itself finds no cause to enforce such 481
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vs. Aquino
power, there is no strict necessity to assert the privilege. In this light, respondents’ failure to invoke
the privilege during the House Committee investigations did not amount to a waiver thereof.
Same; Same; Same; Same; The claim of executive privilege should be invoked by the President or
through the Executive Secretary “by order of the President”; The requirement that the phrase “by order
of the President” should accompany the Executive Secretary’s claim of privilege is a new rule laid down
for the first time in Senate v. Ermita, 488 SCRA 1 (2006), which was not yet final and executory at the
time respondents filed their Comment to the petition.—The Court observes, however, that the claim of
privilege appearing in respondents’ Comment to this petition fails to satisfy in full the requirement laid
down in Senate v. Ermita that the claim should be invoked by the President or through the Executive
Secretary “by order of the President.” Respondents’ claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege
by the Executive Secretary, who is one of the respondents herein, without him adding the phrase “by
order of the President,” shall be considered as partially complying with the requirement laid down
in Senate v. Ermita. The requirement that the phrase “by order of the President” should accompany the
Executive Secretary’s claim of privilege is a new rule laid down for the first time in Senate v. Ermita, 488
SCRA 1 (2006),which was not yet final and executory at the time respondents filed their Comment to the
petition. A strict application of this requirement would thus be unwarranted in this case.
Presidency; Executive Privilege; Judicial Review; The Court in its endeavor to guard against the
abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that
it would strike down as invalid even a legitimate exercise thereof.—We are aware that behind the dissent
of the Chief Justice lies a genuine zeal to protect our people’s right to information against any abuse of
executive privilege. It is a zeal that We fully share. The Court, however, in its endeavor to guard against
the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point
that it would strike down as invalid even a legitimate exercise thereof.
Same; Diplomatic Power; Separation of Powers; The Philippine Constitution, unlike that of the
U.S., does not grant the Senate the482

82 ANNOTATED
vs. Aquino
power to advise the Executive in the making of treaties, but only vests in that body the power to
concur in the validity of the treaty after negotiations have been concluded.—What the U.S. Constitution
sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our
Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S.
Constitution excludes the House of Representatives from the treaty-making process: x x x The
fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid
us to expect in it those qualities which are essential to the proper execution of such a trust . Accurate and
comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a
nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a
body so variable and so numerous. The very complication of the business by introducing a necessity of
the concurrence of so many different bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the house of representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain their sanction in the progressive
stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the
project. These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike
that of the U.S., does not even grant the Senate the power to advise the Executive in the making of
treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have
been concluded. Much less, therefore, should it be inferred that the House of Representatives has this
power.
Same; Same; Same; Courts; Judicial deliberations do not lose their confidential character once a
decision has been promulgated by the courts.—The dissent also asserts that respondents can no longer
claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later
in their Comment, necessarily apply only for as long as the negotiations were still pending; In their
Comment, respondents contend that “the negotiations of the representatives of the Philippines as well as
of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict 483
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83
vs. Aquino
confidentiality.” That respondents liken the documents involved in the JPEPA negotiations to
judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming
confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations
do not lose their confidential character once a decision has been promulgated by the courts. The same
holds true with respect to working drafts of opinions, which are comparable to intra-agency
recommendations. Such intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction
that agencies have the duty to disclose only definite propositions, and not the inter-agency and intra-
agency communications during the stage when common assertions are still being formulated.
Same; Same; Same; Executive Privilege; Given that respondents have claimed executive privilege,
petitioner-members of the House of Representatives should have, at least, shown how its lack of access to
the Philippine and Japanese offers would hinder the intelligent crafting of legislation—mere assertion
that the Japan-Philippines Economic Partnership Agreement (JPEPA) covers a subject matter over
which Congress has the power to legislate would not suffice.—The House Committee that initiated the
investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly
undermines the assertion that access to the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were indeed critical, the House Committee
should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v.
Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual
Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its legislative functions. Further, given that
respondents have claimed executive privilege, petitioner-members of the House of Representatives should
have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the
intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon, 162 U.S.
App.D.C. 183, 189, held, the showing required to overcome the presumption favoring confi- 484

84 ANNOTATED
vs. Aquino
dentiality turns, not only on the nature and appropriateness of the function in the performance of
which the material was sought, but also the degree to which the material was necessary to its fulfillment.
This petitioners failed to do.
Same; Same; Same; Burden of Proof; While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and certain reasons for
upholding its claim of privilege, once the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.—In asserting that the balance in this instance tilts in favor of
disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how
disclosing them after the conclusion of negotiations would impair the performance of its functions. The
contention, with due respect, misplaces the onus probandi. While, in keeping with the general
presumption of transparency, the burden is initially on the Executive to provide precise and certain
reasons for upholding its claim of privilege, once the Executive is able to show that the documents being
sought are covered by a recognized privilege, the burden shifts to the party seeking information to
overcome the privilege by a strong showing of need.
Same; Same; Same; When the Court in Senate v. Ermita, 488 SCRA 1 (2006), limited the power of
invoking the privilege to the President alone, it was laying down a new rule for which there is no
counterpart even in the United States from which the concept of executive privilege was adopted; The
Court’s recognition that the Executive Secretary also bears the power to invoke the privilege, provided he
does so “by order of the President,” is meant to avoid laying down too rigid a rule, the Court
being aware that it was laying down a new restriction on executive privilege, and it is with the same
spirit that the Court should not be overly strict with applying the same rule in this peculiar instance,
where the claim of executive privilege occurred before the judgment in Senate v. Ermita became final.—
When the Court in Senate v. Ermitalimited the power of invoking the privilege to the President alone, it
was laying down a new rule for which there is no counterpart even in the United States from which the
concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice, 365 F.3d 1108, 361 U.S. App.D.C. 183 (2004), citing In re Sealed Case (121 F.3d
729, 326 U.S. App.D.C. 276 [1997]), “the issue of whether a President must person-485
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vs. Aquino
ally invoke the [presidential communications] privilege remains an open question.” U.S. v.
Reynolds, 345 U.S. 1, 73 S.Ct. 528 (1953), on the other hand, held that “[t]here must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer.” The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the privilege in light of its highly
exceptional nature. The Court’s recognition that the Executive Secretary also bears the power to invoke
the privilege, provided he does so “by order of the President,” is meant to avoid laying down too rigid a
rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the
same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance,
where the claim of executive privilege occurred before the judgment in Senate v. Ermita became final.
Same; Same; Same; “Sufficient Showing of Need” Standard; When the Executive has already
shown that an information is covered by executive privilege, the party demanding the information must
present a “strong showing of need,” whether that party is Congress or a private citizen.—Absurdity
would be the ultimate result if, for instance, the Court adopts the “clear and present danger” test for the
assessment of claims of privilege against citizens’ demands for information. If executive information,
when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive
evil that the State has a right to prevent, it would be very difficult for the Executive to establish the
validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege in order to shift the burden
on Congress to present a strong showing of need. This would lead to a situation where it would be
more difficult for Congress to access executive information than it would be for private citizens. We
maintain then that when the Executive has already shown that an information is covered by executive
privilege, the party demanding the information must present a “strong showing of need,” whether that
party is Congress or a private citizen.
Same; Same; Same; Balancing of Interests; In executive privilege controversies, the requirement
that parties present a “sufficient showing of need” only means, in substance, that they should show a
public interest in favor of disclosure sufficient in degree to overcome the claim of privilege, the Court
engaging in a balancing of interests, which certainly is not new in constitutional adjudication involving
fundamental rights.—In executive privilege controversies, the requirement that parties present a
“sufficient showing of need” only means, in substance, that they should show a486

86 ANNOTATED
vs. Aquino
public interest in favor of disclosure sufficient in degree to overcome the claim of privilege . Verily,
the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not
new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion, 343
SCRA 377 (2000), which was cited in the dissent, applied just such a test.
Same; Same; Same; Same; Right to Information; “Sufficient Showing of Need” Standard; The
Court holds that, in determining whether an information is covered by the right to information, a specific
“showing of need” for such information is not a relevant consideration, but only whether the same is a
matter of public concern, but when the government has claimed executive privilege, and it has
established that the information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that the information is vital, not simply for the satisfaction of its
curiosity, but for its ability to effectively and reasonably participate in social, political, and economic
decision-making.—When the Executive has—as in this case—invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can a party
overcome the same by merely asserting that the information being demanded is a matter of public
concern, without any further showing required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation on the right to information, because
then the sole test in such controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of
the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it
by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine
government then explain itself when that happens? Surely, it cannot bear to say that it just had to release
the information because certain persons simply wanted to know it “because it interests them.” Thus, the
Court holds that, in determining487
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vs. Aquino
whether an information is covered by the right to information, a specific “showing of need” for such
information is not a relevant consideration, but only whether the same is a matter of public concern.
When, however, the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege,
must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its
ability to effectively and reasonably participate in social, political, and economic decision-making.
Same; Same; Same; Same; U.S. v. Nixon, 418 U.S. 683 (1974), is a useful guide in the proper
resolution of the present controversy, notwithstanding the difference in context; Verily, while the Court
should guard against the abuse of executive privilege, it should also give full recognition to the validity of
the privilege whenever it is claimed within the proper bounds of executive power, otherwise, the Court
would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance,
but seeking merely to water down executive privilege to the point of irrelevance.—In applying to the
present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are
merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on
Accountability, 549 SCRA 77 (2008)—a case involving an executive-legislative conflict over executive
privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between
the President’s generalized interest in confidentiality and congressional demands for
information, “[n]onetheless the [U.S.] Court laid down principles and procedures that can serve as
torch lights to illumine us on the scope and use of Presidential communication privilege in the case
at bar.”While the Court was divided in Neri, this opinion of the Chief Justice was not among the points
of disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution
of the present controversy, notwithstanding the difference in context. Verily, while the Court should
guard against the abuse of executive privilege, it should also give full recognition to the validity of the
privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise,
the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a
balance, but seeking merely to water down executive privilege to the point of irrelevance. 488
88 ANNOTATED
vs. Aquino
CARPIO,J., Concurring Opinion:
Separation of Powers; Presidency; Congress; Diplomatic Power; While in diplomatic negotiations,
there is a traditional expectation that the offers and counter-offers of the negotiating States will remain
confidential even after the treaty signing, in the ratification of a treaty, the Senate has the right to see in
executive session, the offers and counter-offers made in the treaty negotiations even in the absence of
consent from our treaty partner State.—The negotiation of treaties is different from the awarding of
contracts by government agencies. In diplomatic negotiations, there is a traditional expectation that the
offers and counter-offers of the negotiating States will remain confidential even after the treaty signing.
States have honored this tradition and those that do not will suffer the consequences. There is no such
expectation of keeping confidential the internal deliberations of government agencies after the awarding
of contracts. However, in the ratification of a treaty, the Senate has the right to see in executive
session, the offers and counter-offers made in the treaty negotiations even in the absence of consent from
our treaty partner State. Otherwise, the Senate cannot examine fully the wisdom of the treaty. In the
present case, however, the Senate is not a party.
AZCUNA,J., Separate Dissenting Opinion:
Right to Information; Congress; Informing Power; What appears to have been forgotten is an
equally important and fundamental power and duty of Congress and that is its informing function by way
of investigating for the purpose of enlightening the electorate.—The ponencia regrettably assumes that
the power of Congress, when it investigates, is either in aid of legislation or by way of oversight. What
appears to have been forgotten is an equally important and fundamental power and duty of Congress and
that is its informing function by way of investigating for the purpose of enlightening the electorate. Arthur
M. Schlesinger, in THE IMPERIAL PRESIDENCY, aptly quotes Wilson on CONGRESSIONAL
GOVERNMENT on this power: Congress’s “only whip,” Wilson said, “is investigation,” and that “the
chief purpose of investigation, even more than the direction of affairs, was the enlightenment of the
electorate. The inquisitiveness of such bodies as Congress is the best conceivable source of information . .
. . The informing function of Congress should be preferred even to its legislative function.” For “the only
really self-governing people is that people which discusses and inter- 489
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89
vs. Aquino
rogates its administration.” This is all the more compelling in our polity because our Constitution is
replete and suffused with provisions on transparency, accountability and the right of the people to know
the facts of governance, as pointed out by the Chief Justice.
Same; Transparency is in fact the prevalent trend and non-disclosure is the diminishing exception.
—Transparency is in fact the prevalent trend and non-disclosure is the diminishing exception. The reason
lies in the recognition under international law of the fundamental human right of a citizen to take part in
governance, as set forth in the 1948 United Nations Universal Declaration of Human Rights, a right that
cannot be realized without access to information. And even in the United States from where the privilege
originated no President has claimed a general prerogative to withhold but rather the Executive has
claimed particular exceptions to the general rule of unlimited executive disclosure.
Same; Executive Privilege; Presidency; The President has the burden to show that a particular
exception obtains in every case where the executive privilege is claimed.—The President, therefore, has
the burden to show that a particular exception obtains in every case where the privilege is claimed. This
has not been done in the present case. All that the Senate is asking for are copies of the starting offers of
the Philippines and of Japan. What is the deep secret in those papers? If the final product is and has been
disclosed, why cannot the starting offers be revealed? How can anyone, the Senate or the electorate
included, fathom—to use the favorite word of a counsel—the end product if one is not told the starting
positions?
TINGA,J., Separate Opinion:
Presidency; Executive Privilege; Diplomatic Power; If indeed the Philippines would become unique
among the governments of the world in establishing that correspondences related to treaty negotiations
are part of the public record, such a doctrine would impair the ability of the Philippines to negotiate
treaties or agreements with foreign countries.—In ascertaining the balance between executive privilege
and the constitutional right to information in this case, I likewise consider it material to consider the
implications had the Court established a precedent that would classify such documents relating to treaty
negotiations as part of the public record since it is encompassed within the constitutional right to
information. The490

90 ANNOTATED
vs. Aquino
Dissenting Opinion is unfortunately unable to ultimately convince that establishing such a general
rule would not set the Philippines so far apart from the general practice of the community of nations. For
if indeed the Philippines would become unique among the governments of the world in establishing that
these correspondences related to treaty negotiations are part of the public record, I fear that such a
doctrine would impair the ability of the Philippines to negotiate treaties or agreements with foreign
countries. The Philippines would become isolated from the community of nations, and I need not expound
on the negative and destabilizing implications of such a consequence.
Ratification of Treaties; If the petitioner in this case is the Senate of the Philippines, and that it
seeks the requested documents in the process of deliberating on the ratification of the treaty, the
documents should be disclosed, subject to mechanisms such as in camera inspection or executive sessions
that would have accorded due regard to executive privilege.—I wish to add that if the petitioner in this
case is the Senate of the Philippines, and that it seeks the requested documents in the process of
deliberating on the ratification of the treaty, I will vote for the disclosure of such documents, subject to
mechanisms such as in camera inspection or executive sessions that would have accorded due regard to
executive privilege. However, the reason behind such a position will be based not on the right to
information, but rather, on the right of the Senate to fully exercise its constituent function of ratifying
treaties.
PUNO,C.J., Dissenting Opinion:
Separation of Powers; Presidency; Congress; Diplomatic Power; International Trade; Economic
Globalization; Republicanism; Judicial Review; The key to resolving the decisive issue in the case at bar
turns on the proper framework of analysis—the instant case involves primarily not an assessment of
globalization and international trade or of the extent of executive privilege in this global arena, but a
valuation of the right of the individual and his representatives in Congress to participate in economic
governance.—The key to resolving the decisive issue in the case at bar turns on the proper framework of
analysis. The instant case involves primarily not an assessment of globalization and international trade or
of the extent of executive privilege in this global arena, but a valuation of the right of the individual and
his representatives in Congress to participate in eco- 491
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91
vs. Aquino
nomic governance. Economic decisions such as forging comprehensive free trade agreements
impact not only on the growth of our nation, but also on the lives of individuals, especially those who are
powerless and vulnerable in the margins of society.
Same; Same; Same; Same; Same; Same; The “sole organ” remark in United States v. Curtiss-
Wright Export Corporation, 299 U.S. 304 (1936), simply does not apply to the negotiation of
international trade agreements in the U.S. where Congress is allowed, at the very least, to indirectly
participate in trade negotiations through the setting of statutory limits to negotiating objectives and
procedures, and to almost directly negotiate through the Congressional Oversight Group.—Given this
slice of U.S. history showing the allocation of power over international trade agreement negotiations
between the executive and Congress in U.S. jurisdiction, it will be turning somersaults with history to
contend that the President is the sole organ for external relations.The “sole organ” remark in Curtiss-
Wright (299 U.S. 304 [1936]) simply does not apply to the negotiation of international trade agreements
in the U.S. where Congress is allowed, at the very least, to indirectly participate in trade
negotiations through the setting of statutory limits to negotiating objectives and procedures, and to almost
directly negotiate through the Congressional Oversight Group.
Same; Same; Same; Same; Same; Same; Tariff Powers; The provision in Article VI, Section 22(2) of
the 1935 Constitution—to authorize the President, by law, to fix, within specified limits, tariff rates,
import and export quotas, and tonnage and wharfage dues—was inspired by a desire to enable the
nation, through the President, to carry out a unified national economic program and to administer the
laws of the country to the end that its economic interests would be adequately protected; Congress’
power over foreign trade is one such provision that must be considered in interpreting the treaty-making
power of the President.—The provision in Article VI, Section 22(2) of the 1935 Constitution—to
authorize the President, by law, to fix, within specified limits, tariff rates, import and export quotas, and
tonnage and wharfage dues—was inspired by a desire to enable the nation, through the President, to carry
out a unified national economic program and to administer the laws of the country to the end that its
economic interests would be adequately protected. This intention to implement a unified national
economic program was made explicit in the 1987 Constitution with the addition of the 492

92 ANNOTATED
vs. Aquino
phrase “within the framework of the national development program of the government,” upon
motion of Commissioner Christian Monsod. In sum, while provision was made for granting authority to
the President with respect to the fixing of tariffs, import and export quotas, and tonnage and wharfage
dues, the power of Congress over foreign trade, and its authority to delegate the same to the President by
law, has consistently been constitutionally recognized. Even Curtiss-Wright, which respondents and
the ponencia rely on, make a qualification that the foreign relations power of the President, “like every
other governmental power, must be exercised in subordination to the applicable provisions of the
Constitution.” Congress’ power over foreign trade is one such provision that must be considered in
interpreting the treaty-making power of the President.
Same; Same; Same; Same; Same; Same; Same; Japan-Philippines Economic Partnership
Agreement (JPEPA); The purpose of the legislative inquiry in which the subject Japan-Philippines
Economic Partnership Agreement (JPEPA) documents are needed is to aid legislation, which is different
from the purpose of the negotiations conducted by the Executive, which is to conclude a treaty—exercised
within their proper limits, the power of the House of Representatives to conduct a legislative inquiry in
aid of legislation and the power of the executive to negotiate a treaty should not collide with each other.
—Turning to the case at bar, Congress undoubtedly has power over the subject matter of the JPEPA, as
this agreement touches on the fixing of “tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts.” Congress can, in fact, revoke or amend the power of the President to
fix these as authorized by law or the Tariff and Customs Code of 1978. Congress can legislate and
conduct an inquiry in aid of legislation on this subject matter, as it did pursuant to House Resolution No.
551. The purpose of the legislative inquiry in which the subject JPEPA documents are needed is to aid
legislation, which is different from the purpose of the negotiations conducted by the Executive, which is
to conclude a treaty. Exercised within their proper limits, the power of the House of Representatives to
conduct a legislative inquiry in aid of legislation and the power of the executive to negotiate a treaty
should not collide with each other.
Same; Same; Same; Same; In the U.S., it is recognized that there are at least four kinds of executive
privilege: (1) military and state secrets, (2) presidential communications, (3) deliberative pro- 493
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vs. Aquino
cess, and (4) law enforcement privileges.—In the U.S., it is recognized that there are at least four
kinds of executive privilege: (1) military and state secrets, (2) presidential communications, (3)
deliberative process, and (4) law enforcement privileges. In the case at bar, respondents invoke the state
secrets privilege covering diplomatic or foreign relations and the deliberative process privilege. Let me
first take up the diplomatic secrets privilege.
Same; Same; Same; Same; Japan-Philippines Economic Partnership Agreement (JPEPA); The
reasons provided by respondents for invoking the diplomatic secrets privilege while the Japan-
Philippines Economic Partnership Agreement (JPEPA) negotiations were ongoing no longer hold now
that the negotiations have been concluded.—Without ruling on the confidentiality of the subject JPEPA
documents during negotiations (as this is no longer in issue), I submit that the reasons provided by
respondents for invoking the diplomatic secrets privilege while the JPEPA negotiations were ongoing no
longer hold now that the negotiations have been concluded. That respondents were claiming
confidentiality of the subject JPEPA documents during—not after—negotiations and providing reasons
therefor is indubitable. The 23 June 2005 letter of respondent Secretary Ermita to Congressman Teves
states that the “proposed Agreement has been a work in progress for about three years.” Likewise,
respondents’ Comment states that “(a)t the time when the Committee was requesting the copies of such
documents, the negotiations were ongoing as they are still now.” Both statements show that the subject
JPEPA documents were being withheld from petitioners during and not after negotiations, and that the
reasons provided for withholding them refer to the dangers of disclosure while negotiations are ongoing
and not after they have been concluded.
Same; Same; Same; Same; Same; For a claim of diplomatic secrets privilege to succeed, it is
incumbent upon respondents to satisfy the Court that the disclosure of the subject Japan-Philippines
Economic Partnership Agreement (JPEPA) documents after the negotiations have been concluded would
prejudice our national interest, and that they494

94 ANNOTATED
vs. Aquino
should therefore be cloaked by the diplomatic secrets privilege.—For a claim of diplomatic secrets
privilege to succeed, it is incumbent upon respondents to satisfy the Court that the disclosure of the
subject JPEPA documents after the negotiations have been concluded would prejudice our national
interest, and that they should therefore be cloaked by the diplomatic secrets privilege. It is the task of the
Executive to show the Court the reason for the privilege in the context in which it is invoked, as required
by Senate v. Ermita, 488 SCRA 1 (2006), just as the U.S. government did in Reynolds. Otherwise, the
Court, which has the duty to determine with finality whether the circumstances are appropriate for a claim
of privilege, will not have any basis for upholding or rejecting respondents’ invocation of the privilege.
The requirement to show the reason for the privilege is especially important in the case at bar, considering
that the subject JPEPA documents are part of trade agreement negotiations, which involve
the interdependent powers of the Executive over treaty negotiations and the legislature over foreign
trade, as recognized in both Philippine and U.S. jurisdictions. Upon the Executive’s showing of the
reason and circumstances for invoking the diplomatic secrets privilege, the Court can then consider
whether the application of the privilege to the information or document in dispute is warranted. As the
Executive is given the opportunity to show the applicability of the privilege, there is a safeguard for
protecting what should rightfully be considered privileged information to uphold national interest.
Same; Same; Same; Same; Same; Deliberative Process Privilege; In the U.S., it is settled
jurisprudence that the deliberative process privilege justifies the government’s withholding of documents
and other materials that would reveal “advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”—In the
U.S., it is settled jurisprudence that the deliberative process privilege justifies the government’s
withholding of documents and other materials that would reveal “advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated.” In 1958, the privilege was first recognized in a U.S. federal case, Kaiser
Aluminum Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958), in which the term “executive
privilege” was also originally used.
Same; Same; Same; Same; Same; Same; Purposes; Requisites; Courts and scholars have identified
three purposes of the deliberative process privilege: (1) to protect candid discussions within an agency,
(2) to prevent public confusion from premature disclosure of agency opinions before the agency has
established a final policy, and (3) to495
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95
vs. Aquino
protect against confusing the issues and misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action, when these were not in fact the ultimate reasons
for the agency’s action; Two requisites are essential for a valid assertion of the privilege—the material
must be pre-decisional and deliberative.—Courts and scholars have identified three purposesof the
privilege: (1) to protect candid discussions within an agency; (2) to prevent public confusion from
premature disclosure of agency opinions before the agency has established a final policy; and (3)
to protect against confusing the issues and misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action, when these were not in fact the ultimate
reasons for the agency’s action. Two requisites are essential for a valid assertion of the privilege: the
material must be pre-decisional and deliberative. To be “pre-decisional,” a document must be generated
before the adoption of an agency policy. To be “deliberative,” it must reflect the give-and-take of the
consultative process. Both requirements stem from the privilege’s “ultimate purpose (which) . . . is
to prevent injury to the quality of agency decisions” by allowing government officials freedom to debate
alternative approaches in private. The deliberative process privilege does not shield documents that
simply state or explain a decision the government has already made; nor does the privilege cover material
that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the government’s deliberations. There must also be
a formal assertion of the privilege by the head of the department in control of the information based on
his actual personal consideration of the matter and an explanation as to why the information sought falls
within the scope of the privilege.
Same; Same; Same; Same; Same; Same; Balancing of Interests; In general, courts balance the need
for information against the harm that may result from disclosure.—Once the agency has shown that the
material is both pre-decisional and deliberative, the material enjoys a qualified privilege that may be
overcome by a sufficient showing of need, as held in In re Sealed Case (Espy), 121 F.3d 729, 737 (D.C.
Cir. 1997). In general, courts balance the need for information against the harm that may result from
disclosure. Thus, “each time (the deliberative process privilege) is asserted, the district court must
undertake a fresh balancing of the competing interests,” taking 496

96 ANNOTATED
vs. Aquino
into account factors such as “the relevance of the evidence,” “the availability of other evidence,”
“the seriousness of the litigation,” “the role of the government,” and the “possibility of future timidity by
government employees.” These rulings were made in the context of the refusal of the White House to
submit some documents sought by a grand jury subpoena.
Same; Same; Same; Same; Same; Same; Presidential Communications Privilege; In our
jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the deliberative
process privilege; The distinction between deliberative process privilege and presidential
communications privilege notwithstanding, there is no reason not to recognize in our jurisdiction the
deliberative process privilege, which has essentially the same purpose as the presidential
communications privilege, except that it applies to executive officials in general.—In our jurisdiction, the
Court has had no occasion to recognize and rule on the applicability of the deliberative process
privilege. In the recent case Neri v. Senate Committees, 549 SCRA 77 (2008), the Court recognized the
claim of the presidential communications privilege, which is closely associated with the deliberative
process privilege. In In re Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997), the distinction
between the two privileges was explained, viz.: Both are executive privileges designed to protect
executive branch decision-making, but one (deliberative process privilege) applies to decision-making
of executive officials generally, the other specifically to decision-making of the President. The
presidential privilege is rooted in constitutional separation of powers principles and the President’s
unique constitutional role; the deliberative process privilege is primarily a common law
privilege. . . Consequently, congressional or judicial negation of the presidential communications
privilege is subject to greater scrutiny than denial of the deliberative privilege . . . Unlike the deliberative
process privilege (which covers only material that is pre-decisional and deliberative), the presidential
communications privilege applies to documents in their entirety, and covers final and post-decisional
materials as well as pre-deliberative ones.” (emphasis supplied) The distinction notwithstanding, there
is no reason not to recognize in our jurisdiction the deliberative process privilege, which has essentially
the same purpose as the presidential communications privilege, except that it applies to executive officials
in general.497
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Same; Same; Same; Same; Same; Same; Diplomatic Negotiations; The initial offers are not in the
nature of “advisory opinions, recommendations and deliberations” similar to those submitted by the
subordinate to the chief in a government agency, as in the seminal case of Kaiser, and, likewise, the final
text of the Japan-Philippines Economic Partnership Agreement (JPEPA) prior to signing by the
President is not in the nature of an advice or recommendation or deliberation by executive officials of
the Philippine government, as it is the handiwork of the Philippine and the Japanese negotiating panels
working together; Extending the mantle of protection of the deliberative process privilege to the initial
offers of the Philippines and of Japan and the final JPEPA text prior to signing by the President will be
tantamount to extending the protection of executive branch decision-making to the executive branch not
only of the Philippine government, but also of the Japanese government, which, in trade agreement
negotiations, represents an interest adverse to that of the Philippine government.—It is my considered
view that the subject JPEPA documents do not come within the purview of the kind of information which
the deliberative process privilege shields in order to promote frank and candid discussions and
protect executive branch decision-making of the Philippine government. The initial offers are not in the
nature of “advisory opinions, recommendations and deliberations” similar to those submitted by the
subordinate to the chief in a government agency, as in the seminal case of Kaiser. The initial offer of the
Philippines is not a document that offers alternative courses of action to an executive official to aid in the
decision-making of the latter, but is instead a proposal to another government, the Japanese government,
to institute negotiations. The end in view of these negotiations is not a decision or policy of the Philippine
government, but a joint decision or agreement between the Philippine and the Japanese governments.
Likewise, the final text of the JPEPA prior to signing by the President is not in the nature of an advice or
recommendation or deliberation by executive officials of the Philippine government, as it is the
handiwork of the Philippine and the Japanese negotiating panels working together. The documents
sought to be disclosed are not of the same nature as internal deliberations of the Department of Trade and
Industry or the Philippine negotiating panel in crafting and deciding the initial offer of the Philippines or
internal memoranda of Philippine government agencies to advise President Macapagal-Arroyo in her
decision to sign the JPEPA. Extending the mantle of protection of the498

98 ANNOTATED
vs. Aquino
deliberative process privilege to the initial offers of the Philippines and of Japan and the final
JPEPA text prior to signing by President Macapagal-Arroyo will be tantamount to extending the
protection of executive branch decision-making to the executive branch not only of the Philippine
government, but also of the Japanese government, which, in trade agreement negotiations, represents an
interest adverse to that of the Philippine government. As seen from the rationale and history of the
deliberative process privilege, this is not the intent of the deliberative process privilege. Given the nature
of the subject JPEPA documents, it is the diplomatic secrets privilege that can properly shield them upon
sufficient showing of reasons for their confidentiality. Hence, the invocation of deliberative process
privilege to protect the subject JPEPA documents must fail.
Same; Same; Same; Same; Same; Same; Executive privilege must be invoked by the President, or
the Executive Secretary “by order of the President,” unlike in U.S. jurisdiction where, as afore-
discussed, the formal assertion of the head of the department claiming the privilege suffices .—But this is
not all. In Senate v. Ermita, the Court also required that executive privilege must be invoked by the
President, or the Executive Secretary “by order of the President,” unlike in U.S. jurisdiction where, as
afore-discussed, the formal assertion of the head of the department claiming the privilege suffices. In the
case at bar, the Executive Secretary invoked both the deliberative process privilege and the diplomatic
secrets privilege not “by order of the President,” as his 23 June 2005 letter quoted above shows.
Accordingly, the invocation of executive privilege was not properly made and was therefore without legal
effect.
Same; Same; Same; Same; Same; Same; Balancing of Interests; Secrecy has long played an
integral but also controversial role in the negotiation of international agreements—it facilitates frank
discussion, minimizes posturing and allows flexibility in negotiating positions but it is also prone to
abuse and is often assailed as undemocratic and facilitating abuse of power; The tension between secrecy
and the demand for openness continues, but circumstances have changed, as the international trade
agreements of today tend to be far more authoritative and comprehensive—these trade agreements have
broader and more direct consequences on private conduct; The developments in the openness to the
public of international trade agreement negotiations show that secrecy in the negotiation of treaties is not
a rule written in stone—revisiting the balance between secrecy 499
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99
vs. Aquino
and openness is an imperative, especially in the Philippines where the right to information has been
elevated to a constitutional right essential to our democratic society.—Secrecy has long played an
integral but also controversial role in the negotiation of international agreements. It facilitates frank
discussion, minimizes posturing and allows flexibility in negotiating positions. But it is also prone to
abuse and is often assailed as undemocratic and facilitating abuse of power. In the public eye, excessive
secrecy can weaken accountability and undermine the legitimacy of government action. Generally, it can
also undermine the faith of the public in the need for secrecy for “secrecy can best be preserved only
when credibility is truly maintained.” The tension between secrecy and the demand for openness
continues, but circumstances have changed, as the international trade agreements of today tend to be far
more authoritative and comprehensive than those negotiated by Presidents Woodrow Wilson, George
Washington and John Jay. These trade agreements have broader and more direct consequences on
private conduct. As the trend on international trade agreements will only continue, it is important
to revisit the tension between secrecy and openness. The fact alone that secrecy shrouded negotiations of
international agreements three hundred or even twenty-five years ago can no longer justify the
continuation of that approach in today’s era of the NAFTA, CAFTA (Central American Free Trade
Agreement), and a prospective FTAA. These developments in the openness to the public of international
trade agreement negotiations show that secrecy in the negotiation of treaties is not a rule written in stone.
Revisiting the balance between secrecy and openness is an imperative, especially in the Philippines
where the right to information has been elevated to a constitutional right essential to our democratic
society.
Republicanism; Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct
the people’s role in governance—the word “democratic” was added to “republican” in Article II,
Section 1 of the Constitution as a “pardonable redundancy” to highlight the importance of the people’s
role in government.—Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct
the people’s role in governance. As a first principle of government, the 1987 Constitution declares in
Article II, Section 1, Declaration of Principles and State Policies, that the Philippines is not only a
republican but also a democratic state. The word “democratic” was added to “republican” as a
“pardonable redundancy” to highlight the500

00 ANNOTATED
vs. Aquino
importance of the people’s role in government, as evinced by the exchanges in the 1986
Constitutional Commission.
Same; Right to Information; The constitutional provision on the people’s right to information made
its maiden appearance in the Bill of Rights of the 1973 Constitution, but without the phrase “as well as to
government research data used as basis for policy development” was added in the 1987 Constitution to
stop the government practice during Martial Law of withholding social research data from the knowledge
of the public whenever such data contradicted policies that the government wanted to espouse .—The
constitutional provision on the people’s right to information made its maiden appearance in the Bill of
Rights of the 1973 Constitution, but without the phrase “as well as to government research data used as
basis for policy development.” The phrase was added in the 1987 Constitution to stop the government
practice during Martial Law of withholding social research data from the knowledge of the public
whenever such data contradicted policies that the government wanted to espouse.
Same; Same; Locus Standi; Under both the 1973 and the 1987 Constitutions, the right to
information is self-executory, a public right that belongs to and can be invoked by the people—every
citizen has the “standing” to challenge any violation of the right and may seek its enforcement .—Under
both the 1973 and the 1987 Constitutions, the right to information is self-executory. It is a public right that
belongs to and can be invoked by the people. Consequently, every citizen has the “standing” to challenge
any violation of the right and may seek its enforcement. The self-executory status and the significance in
a democracy of the right of access to information were emphasized by the Court in Gonzales v. Narvasa,
337 SCRA 733 (2000).
Same; Same; Burden of Proof; With the elevation of the right to information to constitutional
stature, the starting point of the inquiry is the general rule that the public has a right to information on
matters of public concern and the State has a corresponding duty to allow public access to such
information—should the government agency deny access, it has the burden of showing that the
information requested is not of public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee because to hold otherwise will serve to dilute the
constitutional right.—With the elevation of the right to information to constitutional stature, the starting
point of the inquiry is the general rule501
VOL. 558, JULY 16, 2008 5

01
vs. Aquino
that the public has a right to information on matters of public concern and the State has a
corresponding duty to allow public access to such information. It is recognized, however, that the
constitutional guarantee admits of exceptions such as “limitations as may be provided by law.” Thus, as
held in Legaspi, 150 SCRA 530 (1987), “in every case, the availability of access to a particular public
record” is circumscribed by two elements: (1) the information is “of public concern or one that involves
public interest,” and, (2) it is “not exempt by law from the operation of the constitutional guarantee.” The
question of access is first addressed to the government agency having custody of the information
sought. Should the government agency deny access, it “has the burden of showing that the information
requested is not of public concern, or, if it is of public concern, that the same has been exempted by law
from the operation of the guarantee” because “(t)o hold otherwise will serve to dilute the constitutional
right. As aptly observed, ‘. . . the government is in an advantageous position to marshal and interpret
arguments against release . . .’ (87 Harvard Law Review 1511 [1974]).” Furthermore, the Court ruled that
“(t)o safeguard the constitutional right, every denial of access by the government agency concerned is
subject to review by the courts.”
Same; Same; Balancing of Interests Test; Showing of Need Test; In the adjudication of rights
guaranteed in the Constitution, the Court has never used “showing of need” as a test to uphold rights or
allow inroads into them; The question in the adjudication of constitutional rights is whether the incursion
into a right is peripheral or essential, or whether there is a heavier public interest that must prevail over
a constitutional right in order to preserve an ordered society.—In the adjudication of rights guaranteed
in the Constitution, however, the Court has never used “showing of need” as a test to uphold rights or
allow inroads into them. I respectfully submit that we ought not to weigh the need to exercise the right to
free speech or free assembly or free practice of religion. These are freedoms that have been won by all for
the benefit of all, without the requisite showing of need for entitlement. When we valuate these
constitutional rights, we do not consider their necessity for the performance of a function, as in the case of
government branches and entities. The question in the adjudication of constitutional rights is whether the
incursion into a right is peripheral or essential, as when there is only a “soft restraint” on the potential
extraditee’s right to procedural due process; or whether there is a heavier public interest that must502

02 ANNOTATED
vs. Aquino
prevail over a constitutional right in order to preserve an ordered society, such as when there is a
“clear and present danger” of a substantive evil that the State has a right to prevent as demonstrated in
free speech cases, or when there is a “compelling state interest” that must override the free exercise of
religion.
Same; Same; Same; Same; The right to information lies at the heart of a government that is not only
republican but also democratic; Employing the “balancing of interests” test, the public interest in
upholding this constitutional right of the public to information must be carefully balanced with the public
interest in nondisclosure of information in relation to treaty negotiations.—The right to information lies
at the heart of a government that is not only republican but also democratic. For this reason, Article III,
Section 7 of the 1987 Constitution, calls for “an informed citizenry with access to the diverse currents in
political, moral and artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon is vital to the democratic government envisioned under our Constitution.”
Thus, employing the “balancing of interests” test, the public interest in upholding this constitutional right
of the public to information must be carefully balanced with the public interest in nondisclosure of
information in relation to treaty negotiations. This test is in line with the approach adopted in the right to
access statute of the United Kingdom and New Zealand.
Same; Same; Same; Same; The right to information is an end in itself; The yardstick with respect to
individuals exercising a constitutionally granted right to information should be the importance of the
right and the public interest in upholding it.—The right to information is a constitutional right in and of
itselfand does not derive its significance only in relation to the exercise of another right, such as the right
to free speech or a free press if that is the kind of “function” of an individual that can be equated with the
functions of government agencies in the above cases cited by the ponencia. To reiterate, Valmonte teaches
that the right to information is not merely an adjunct of the right to free speech and a free press. Stated
another way, the right to information is an end in itself, even as it may be exercised in furtherance of
other rights or purposes of an individual. To say that one exercises the right to information simply to be
informed, and not because of a particular need, is not a meaningless tautology. Thus, instead of using
“showing of need” as a passport to503
VOL. 558, JULY 16, 2008 5

03
vs. Aquino
access purportedly privileged information, as in the case of government entities needing information
to perform a constitutionally mandated duty, the yardstick with respect to individuals exercising
a constitutionally granted right to information should be the importance of the right and the public
interest in upholding it.
Same; Same; Same; Same; There is no absurdity when a distinction is made where there are real
differences.—That the application of the “showing of need” test to executive privilege cases involving
branches of government and of the “balancing of interests” test to cases involving the constitutional right
to information could yield different results is not an absurdity. The difference in results would not be any
more absurd than it would be for an accused to be adjudged innocent in a criminal action but liable in a
civil action arising from one and the same act he committed. There is no absurdity when a distinction is
made where there are real differences.
Same; Same; Uninformed participation in the governance of the country impairs the right of our
people to govern their lives while informed debate serves as the fountainhead from which truth and the
best interest of the country will spring.—Without adjudging the merits of objections to the above
provisions of the JPEPA, the fact that these concerns are raised and that these provisions will impact on
the lives of our people stress the need for an informed debate by the public on the JPEPA. Rooted in the
unique Philippine experience, the 1987 Constitution strengthened participatory democracy not only in
our political realm but also in the economic arena. Uninformed participation in the governance of the
country impairs the right of our people to govern their lives while informed debate serves as the
fountainhead from which truth and the best interest of the country will spring.
Same; Same; When warranted, we must overcome the entropy of the old tradition of secrecy.—By
upholding the constitutional right to information over the invocation of executive privilege in the instant
case, it is my considered view that the subject JPEPA documents should be disclosed considering
the particular circumstances of the case at bar. In arriving at this conclusion, a balancing of interests
test has to be employed which will allow the executive to show the public interest it seeks to protect in
invoking executive privilege. The test serves as a safeguardagainst disclosure of information that504

04 ANNOTATED
vs. Aquino
should properly be kept secret. There is thus no foundation for the fears expressed in the Separate
Opinion of Justice Tinga, viz.: “(The ruling) would establish a general rule that diplomatic negotiations of
treaties and other international agreements . . . belong to the public record since it is encompassed within
the constitutional right to information . . . if indeed the Philippines would become unique among the
governments of the world in establishing that these correspondences related to treaty negotiations are part
of the public record, I fear that such doctrine would impair the ability of the Philippines to negotiate
treaties or agreements with foreign countries.” As afore-discussed, allowing public access to trade
agreement negotiations and draft texts, in various degrees and ways, has gained momentum in the
landscape of U.S. diplomatic and foreign relations. I submit that, when warranted, we must overcome the
entropy of the old tradition of secrecy.
Same; Same; In a democracy, debate—by the people directly or through their representatives in
Congress—is a discussion of and by the informed and not an exchange of surpluses of ignorance. —In
sum, transparency and opacity are not either-or propositions in the conduct of international trade
agreement negotiations. The degree of confidentiality necessary in a particular negotiation is a point in a
continuum where complete disclosure and absolute secrecy are on opposite ends. In assigning this
fulcrum point, it is my humble view that the Court should balance the need for secrecy of the Executive
and the demand for information by the legislature or the public. The balancing act in every case
safeguards against disclosure of information prejudicial to the public interest and upholds the fundamental
principle enunciated in Senate v. Ermita, 488 SCRA 1 (2006)—that a claim of executive privilege “may
be valid or not depending on the ground invoked to justify it and the context in which it is made.” We
elevated the right to information to constitutional stature not without reason. In a democracy, debate—by
the people directly or through their representatives in Congress—is a discussion of and by the informed
and not an exchange of surpluses of ignorance. In the arena of economic governance, the right to debate
and participate is exercised not as an end in itself. Especially for the powerless whose sword and shield
against abuse is their voice, the exercise of the right is not merely rhetoric. It is a fight from the gut to
satisfy basic human needs and lead a humane life.
505
VOL. 558, JULY 16, 2008 505
Aquino
SPECIAL CIVIL ACTION in the Supreme Court. Mandamus and Prohibition.
Ma. Tanya Karina A. Lat, Ibarra M. Gutierrez and Antonio L. Salvador for petitioners.
CARPIO-MORALES,J.:
Petitioners—non-government organizations, Congresspersons, citizens and taxpayers—seek via the present
petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation
process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005 House
Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine
government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino
(Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213
(“Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic
Partnership Agreement”)1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of
the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.
_______________
1 Effective May 28, 2003.

506
ANNOTATED
Aquino
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005,
replied that the Congressman shall be provided with a copy thereof “once the negotiations are completed and as
soon as a thorough legal review of the proposed agreement has been conducted.”
In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive
Secretary Eduardo Ermita to furnish it with “all documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc.”2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:
“In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains
that the Committee’s request to be furnished all documents on the JPEPA may be difficult to
accomplish at this time, since the proposed Agreement has been a work in progress for about three
years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof
is settled and complete.” (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman
Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of
the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy
“once the negotiation is completed.” And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R.
Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec.
Aquino who would be “in the best position to respond” to the request.
_______________
2 Annex “F” of Petition, Rollo, p. 95.

507
VOL. 558, JULY 16, 2008 507
Aquino
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the
most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman
Teves’ information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the
subpoena until the President gives her consent to the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the
present petition was filed on December 9, 2005. 4 The agreement was to be later signed on September 9, 2006 by
President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following
which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the
Constitution. To date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another
country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate
as fol-
_______________
3 The Petition quoted the following statement of Congressman Teves appearing in the transcript of the Committee
hearing held on October 12, 2005:
Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate to this body the positive as well
as the negative impact of said agreement. Is this the draft that the government will sign in December or this will still
be subjected to revisions in the run-up to its signing? x x x THE CHAIRPERSON. We requested also to subpoena
this but then the Speaker requested me to hold in abeyance because he wanted to get a ( sic) consent of the
President before we can x x x the department can furnish us a copy of this agreement. (Rollo, p. 32)
4 Id., at p. 16.
508
ANNOTATED
Aquino
lows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual
property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual
recognition, dispute avoidance and settlement, improvement of the business environment, and general and final
provisions.5
While the final text of the JPEPA has now been made accessible to the public since September 11,
2006,6respondents do not dispute that, at the time the petition was filed up to the filing of petitioners’ Reply—when
the JPEPA was still being negotiated—the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it
necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right. 7 Respondents deny that petitioners have such standing to sue. “[I]n the interest
of a speedy and definitive resolution of the substantive issues raised,” however, respondents consider it sufficient to
cite a portion of the ruling in Pimentel v. Office of Executive Secretary 8 which emphasizes the need for a “personal
stake in the outcome of the controversy” on questions of standing.
_______________
5 Annex “A,” Comment, Rollo, p. 207.

6 Respondents’ Manifestation dated September 12, 2007; vide“Business Philippines: A Department of Trade and
Industry Website” at www.business.gov.ph, particularly www.business.gov.ph/
DTI_News.php?contentID=136 (visited August 9, 2007).
7 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530, 535.
8 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 630-631.
509
VOL. 558, JULY 16, 2008 509
Aquino
In a petition anchored upon the right of the people to information on matters of public concern, which is a public
right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. 9 As the
present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and
groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their
capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness
Considering, however, that “[t]he principal relief petitioners are praying for is the disclosure of the contents of
the JPEPA prior to its finalization between the two States parties,”10 public disclosure of the text of the JPEPA after
its signing by the President, during the pendency of the present petition, has been largely rendered moot and
academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be
considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement
does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the
laws of each country for its entry into force, viz.:
164 Article
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the
Parties exchange diplomatic
_______________
10 Reply to the Comment of the Solicitor General, Rollo, p. 319 (italics supplied).
510

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notes informing each other that their respective legal procedures necessary for entry into force of this
Agreement have been completed. It shall remain in force unless terminated as provided for in Article
165. (Emphasis supplied)
11

President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures
which must be met prior to the agreement’s entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become moot and
academic to the extent that it seeks the disclosure of the “full text” thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA,
but also the Philippine and Japanese offers in the course of the negotiations.12
_______________
11 Business Philippines: A Department of Trade and Industry Website,

http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
12 By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine and
Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if not, whether petitioners
still intend to pursue their prayer to be provided with copies thereof. In compliance, petitioners manifested that the offers
have not yet been made public and reiterated their prayer that respondents be compelled to provide them with copies
thereof, including all pertinent attachments and annexes thereto (Manifestation and Motion dated September 17, 2007).
Respondents, on the other hand, asserted that the offers have effectively been made accessible to the public since
September 11, 2006 (Manifestation dated September 12, 2007). Respondents’ claim does not persuade, however. By their
own manifestation, the documents posted on the DTI website on that date were only the following: (1) Joint Statement on
the Occasion of the Signing of the Agreement between Japan and the Republic of the Philippines, (2) the full text of the
JPEPA itself and its annexes, (3) the JPEPA implementing Agreement, and (4) “resource materials on the JPEPA
including presentations of the [DTI] during the hearings of the Senate’s Committee on Trade and Commerce and
Committee on Economic Af-
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A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for access to the
Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA
negotiations violates their right to information on matters of public concern 13 and contravenes other constitutional
provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public
interest.14 Second, they contend that non-disclosure of the same documents undermines their right to effective and
reasonable participation in all levels of social, political, and economic decision-making. 15 Lastly, they proffer that
divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate
into a mere rubber stamp of the Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except
for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents’ claim of privilege shall
be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not.
_______________
fairs.” While these documents no doubt provide very substantial information on the JPEPA, the publication thereof still
falls short of addressing the prayer of petitioners to be provided with copies of the Philippine and Japanese offers. Thus,
the petition, insofar as it prays for access to these offers, has not become moot.
13 Constitution, Art. III, Sec. 7.

14 Id., at Art. II, Sec. 28.
15 Id., at Art. XIII, Sec. 16.
512
ANNOTATED
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The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold requirement that it be
a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
“In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.” (Italics supplied)
16
From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do
not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure
is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have been elucidated in Almonte v.
Vasquez,17Chavez v. PCGG,18
_______________
17 314 Phil. 150; 244 SCRA 286 (1995).
18 360 Phil. 133; 299 SCRA 744 (1998).
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Chavez v. Public Estates Authority,19 and most recently in Senate v. Ermita20 where the Court reaffirmed the validity
of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in
which it is made. 21 In the present case, the ground for respondents’ claim of privilege is set forth in
their Comment, viz.:
“x x x The categories of information that may be considered privileged includes matters of diplomatic
character and under negotiation and review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by respondents particularly respondent
DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal
review by the parties fall under the exceptions to the right of access to information on matters of public
concern and policy of public disclosure. They come within the coverage of executive privilege. At the time
when the Committee was requesting for copies of such documents, the negotiations were ongoing as they
are still now and the text of the proposed JPEPA is still uncertain and subject to change.Considering the
status and nature of such documents then and now, these are evidently covered by executive privilege
consistent with existing legal provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the “rolling texts”
which may undergo radical change or portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of Japan must be allowed to
explore alternatives in the course of the negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict confidentiality.” (Emphasis and italics supplied)
22
_______________
19 433 Phil. 506; 384 SCRA 152 (2002).

20 G.R. No. 169777, April 20, 2006, 488 SCRA 1.
21 Id., at p. 51.
22 Rollo, pp. 191-192.
514
ANNOTATED
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The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic
matter, but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for
the sake of national interest.” 23 Even earlier, the same privilege was upheld in People’s Movement for Press
Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on
the state of the then on-going negotiations of the RP-US Military Bases Agreement. 25 The Court denied the petition,
stressing that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.” The Resolution went on to state,
thus:
_______________
23 360 Phil. 133, 177; 299 SCRA 744, 764 (1998), citing V Record Of The Constitutional Commission 25 (1986).
24 G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.
25 Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their
negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners access to the items
which they have already agreed upon; and (3) reveal and/or make accessible the respective positions on items they have
not agreed upon, particularly the compensation package for the continued use by the U.S. of their military bases and
facilities in the Philippines.
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VOL. 558, JULY 16, 2008 515
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“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. Although much has been said about “open” and “secret” diplomacy, with disparagement of the
latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the
words of Mr. Stimson:
“A complicated negotiation . . . cannot be carried through without many, many private
talks and discussion, man to man; many tentative suggestions and proposals. Delegates from
other countries come and tell you in confidence of their troubles at home and of their
differences with other countries and with other delegates; they tell you of what they would do
under certain circumstances and would not do under other circumstances . . . If these reports .
. . should become public . . . who would ever trustAmerican Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.).”
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As
expressed by one writer, “It can be said that there is no more rigid system of silence anywhere in the
world.” (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World War declared that we must have “open covenants,
openly arrived at.” He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to “muscle in.” An ill-timed speech
by one of the parties or a frank declaration of the concession which are exacted or offered on both
sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has
been drafted and its terms are fully published, there is ample opportunity for discussion before it is
approved.(The New American Government and Its Works, James T. Young, 4th Edition, p. 194)”
(Emphasis and underscoring supplied)
516
ANNOTATED
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Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the
President is the sole organ of the nation in its negotiations with foreign countries, viz.:
“x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes treaties with
the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of
March 7, 1800, in the House of Representatives, “The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.” Annals, 6th Cong., col. 613. . .”
(Emphasis supplied; underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may
not be kept perpetually confidential—since there should be “ample opportunity for discussion before [a treaty] is
approved”—the offers exchanged by the parties during the negotiations continue to be privileged even after the
JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the
understanding that “historic confidentiality”27 would govern the same. Disclosing these
_______________
26 299 U.S. 304 (1936).

27 Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter from the
Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue Service (IRS), defendant
asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs, Commissioner of IRS, which stated that the
production of the letter “would impair the United States government’s ability to deal with the tax authorities of foreign
governments * * * by breaching the historic confidentiality of negotiations between the United States and foreign
sovereigns * * *.” (Emphasis supplied) The U.S. court therein ruled thus: “Given the context in which the letter in
question was written, it is reason-
517
VOL. 558, JULY 16, 2008 517
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offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in
future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage
future Philippine representatives from frankly expressing their views during negotiations. While, on first impression,
it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normallyinvolve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
“x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity
leads to “grandstanding,” tends to freeze negotiating positions, and inhibits the give-and-take
essential to successful negotiation. As Sissela Bok points out, if “negotiators have more to gain from
being approved by their own sides than by making a reasoned agreement with competitors or adversaries,
then they are inclined to ‘play to the gallery . . .” In fact, the public reaction may leave them little
option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with
Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel’s existing settlements from Judea and Samaria in return for
peace.” (Emphasis supplied)
28
_______________
able to conclude that frank and honest expression of views on the treaty language in issue were expressed, views that
ostensibly were expressed in the belief that “historic confidentiality” would govern such expressions.” (Italics supplied)
28 B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D., 1961, Yale
University, The Occasions of Secrecy (47 U. Pitt. L. Rev. 579).
518
ANNOTATED
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Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national
goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v.
Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in
all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a
public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the
Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapusto the
present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial
factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress
that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and
commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered privileged, must involve
national519
VOL. 558, JULY 16, 2008 519
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security. The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying kinds,
such that it may even be more accurate to speak of “executive privileges,” cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security such as those
involving military secrets, not all are founded thereon. One example is the “informer’s privilege,” or the privilege
of the Government not to disclose the identity of a person or persons who furnish information of violations of law to
officers charged with the enforcement of that law. 30 The suspect involved need not be so notorious as to be a threat to
national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in
all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed privileged
without distinguishing between those which involve matters of national security and those which do not, the
rationale for the privilege being that
“x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. x x x” (Emphasis supplied)
31
In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated
upon, so presidential communications are privileged whether they involve matters of national security.
_______________
30 Ibid.
520
ANNOTATED
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It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one
significant qualification being that “the Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing.”32 This qualification applies whether the privilege is
being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation. 33
Closely related to the “presidential communications” privilege is the deliberative process privilegerecognized
in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co.,34deliberative
process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. Notably, the privileged status of such
documents rests, not on the need to protect national security but, on the “obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and front
_______________
32 Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183.
33 Vide Arnault v. Nazareno, 87 Phil. 29, 46 (1950): “In the present case the jurisdiction of the Senate, thru the
Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not challenged by the
petitioner; and we entertain no doubt as to the Senate’s authority to do so and as to the validity of Resolution No. 8
hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular expenditure of no
less than P5,000,000 of public funds, of which Congress is the constitutional guardian. x x x”
34 421 U.S., at p. 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v. Klamath
Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
521
VOL. 558, JULY 16, 2008 521
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page news,” the objective of the privilege being to enhance the quality of agency decisions.35
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is meant to
encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from
public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks,
through the same means, to protect the independence in decision-making of the President, particularly in its capacity
as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” And, as
with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of
the content of the information per se, but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
Treasury37 enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were the issues to be discussed, positions which the
French and U.S. teams took on some points, the draft language agreed on, and articles which
_______________
35 Id., at p. 151, 95 S.Ct. 1504 (emphasis supplied).

36 Supra note 24.
37 545 F.Supp. 615, May 28, 1982.
522
ANNOTATED
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needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
“Negotiations between two countries to draft a treaty represent a true example of a deliberative
process. Much give-and-take must occur for the countries to reach an accord. A description of the
negotiations at any one point would not provide an onlooker a summary of the discussions which could
later be relied on as law. It would not be “working law” as the points discussed and positions agreed on
would be subject to change at any date until the treaty was signed by the President and ratified by the
Senate.
The policies behind the deliberative process privilege support non-disclosure. Much harm could
accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement
positions of the French negotiators might well offend foreign governments and would lead to less
candor by the U.S. in recording the events of the negotiations process. As several months pass in
between negotiations, this lack of record could hinder readily the U.S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies should be changed, public
confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to releasing
drafts of the treaty, particularly when the notes state the tentative provisions and language agreed
on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur
Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of
treaties should be accorded the same protection.” (Emphasis and italics supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S.
Trade Representative38—where the plaintiffs sought information relating
_______________
38 237 F.Supp.2d 17.

523
VOL. 558, JULY 16, 2008 523
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to the just-completed negotiation of a United States-Chile Free Trade Agreement—the same district court, this time
under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of
the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a
discussion of why the district court did not apply the same would help illumine this Court’s own reasons for
deciding the present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely,
Exemption 5 of the Freedom of Information Act (FOIA). 39In order to qualify for protection under Exemption 5, a
document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must
be both pre-decisional and part of the agency’s deliberative or decision-making process. 40
Judge Friedman, in CIEL, himself cognizant of a “superficial similarity of context” between the two cases, based
his decision on what he perceived to be a significant distinction: he found the negotiator’s notes that were sought
in Fulbright to be “clearly internal,” whereas the documents being sought in CIEL were those produced by or
exchanged with an outside
_______________
39 5 U.S.C. 552(b)(5).

40 CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. VideDepartment of the Interior and Bureau of
Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060: “Exemption 5 protects from
disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). To qualify, a document must thus satisfy two
conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds it.”
524
ANNOTATED
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party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure
therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether
the documents were part of the agency’s pre-decisional deliberative process. On this basis, Judge Friedman found
that “Judge Green’s discussion [in Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach the
question of deliberative process.” (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIELmerely found the same to be irrelevant in light of its
distinct factual setting. Whether this conclusion was valid—a question on which this Court would not pass—the
ruling in Fulbright that “[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process” was left standing, since the CIELcourt explicitly stated that it did not reach the question of
deliberative process.
Going back to the present case, the Court recognizes that the information sought by petitioners includes
documents produced and communicated by a party external to the Philippine government, namely, the Japanese
representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances
of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated
in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic negotiations
should also be accorded privileged status, even if the documents subject of the present case cannot be described as
purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first
requirement of FOIA Exemption 5—that the documents be inter-agency—was not met. In determining whether the
government may validly refuse disclosure of the exchanges be-525
VOL. 558, JULY 16, 2008 525
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tween the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on
them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar
to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic
negotiations, are more free to focus directly on the issue of whether the privilege being claimed is
indeed supported by public policy, without having to consider—as the CIEL court did—if these negotiations fulfill
a formal requirement of being “inter-agency.” Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above,
the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is
the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present
case include members of the House of Representatives who invoke their right to information not just as citizens but
as members of Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to demand information
on negotiations of international trade agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapusconsisted only of members of the mass media, it would be
incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where the
demand for information has come from members of Congress, not only from private citizens. 526
ANNOTATED
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The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under different circumstances. The probability of the
claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that
context is another matter altogether.
The Court’s statement in Senate v. Ermita that “presidential refusals to furnish information may be actuated by
any of at least three distinct kinds of considerations [state secrets privilege, informer’s privilege, and a generic
privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either
judicial or legislative investigations,”41implies that a privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be
inferred from PMPF v. Manglapusitself, where the Court held that it is the President alonewho negotiates treaties,
and not even the Senate or the House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’ demands for
information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapusto the privileged character of diplomatic negotiations
cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that “the
socio-political and historical contexts of the two cases are worlds apart.” They claim that the constitutional traditions
and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the
require-
_______________
41 Supra note 20 at p. 46 (emphasis supplied).

527
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ments of foreign policy and the ideals of transparency were incompatible with each other or the “incompatibility
hypothesis,” while valid when international relations were still governed by power, politics and wars, are no longer
so in this age of international cooperation.42
Without delving into petitioners’ assertions respecting the “incompatibility hypothesis,” the Court notes that the
ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular
socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed
that “[a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered
on both sides” no longer “lead[s] to widespread propaganda to block the negotiations,” or that parties in treaty
negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them
to substantiate the same. This petitioners failed to discharge.
_______________
42 Petitioners expound as follows:
“It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that span
of time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant hostilities, and ushering
in a new era of globalization and international economic cooperation as we know it. The Philippines now finds itself
part of an international economic community as a member of both the ASEAN Free Trade Area (AFTA) and the
World Trade Organization (WTO). Domestically, this Honorable Court has repeatedly upheld the people’s right to
information on matters of public concern, allowing ordinary Filipino citizens to inquire into various government
actions such as GSIS loans to public officials, settlement of Marcos ill-gotten wealth, and sale of reclaimed land to
foreign corporations.” (Rollo, p. 326)
528
ANNOTATED
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Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that “diplomatic negotiations on the JPEPA are entitled to a reasonable amount of
confidentiality so as not to jeopardize the diplomatic process.” They argue, however, that the same is privileged
“only at certain stages of the negotiating process, after which such information must necessarily be revealed to the
public.”43 They add that the duty to disclose this information was vested in the government when the negotiations
moved from the formulation and exploratory stage to the firming up of definite propositions or official
recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case
and Chavez v. PCGG with regard to the duty to disclose “definite propositions of the government” does not apply to
diplomatic negotiations:
“We rule, therefore, that the constitutional right to information includes official information on on-
going negotiations before a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and
public order. x x x” (Emphasis and underscoring supplied)
46
It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under
“recognized exceptions.” The privilege for diplomatic negotiations
_______________
43 Rollo, pp. 50-51.

44 Supra note 18.
45 Supra note 19.
46 433 Phil. 506, 534; 384 SCRA 152, 189 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG,
supra note 18.
529
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is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v.
Manglapusitself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against
the demands of members of Congress for information, the Court shall now determine whether petitioners have
shown the existence of a public interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed
public interest in favor of keeping the subject information confidential, which is the reason for the privilege in
the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by
the party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may
be gathered from cases such as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 and In re Sealed Case.50
_______________
47 In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: “Nixon, GSA, Sirica, and the
other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential
communications privilege can be overcome. Under this methodology, these opinions balanced the public interests
served by protecting the President’s confidentiality in a particular context with those furthered by requiring
disclosure.” (Emphasis supplied)
48 418 U.S. 683 (1974).
49 Supra note 31.
50 Supra note 47.
530
ANNOTATED
Aquino
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces
tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the
constitutional duty of courts to ensure a fair administration of criminal justice.
“x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the basic function
of the courts. A President’s acknowledged need for confidentiality in the communications of his
office is general in nature, whereas the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair adjudication of a particular criminal case in
the administration of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending
criminal cases.” (Emphasis, italics and italics supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential communications
privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the
duty of Congress to perform its legislative functions.
“The staged decisional structure established in Nixon v. Siricawas designed to ensure that the
President and those upon whom he directly relies in the performance of his duties could continue to work
under a general assurance that their deliberations would remain confidential. So long as the presumption
that the public interest favors confidentiality can be defeated only by a strong showing of need by
another institution of government— a showing that the responsibilities of that institution cannot
responsibly be fulfilled without access to records of the President’s deliberations—we believed
in Nixon v. Sirica,
_______________
51 Supra note 32.
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and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee’s showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions. x x x”
(Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges
against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated:
“The deliberative process privilege is a qualified privilege and can be overcome by a sufficient
showing of need. This need determination is to be made flexibly on a case-by-case, ad
hoc basis. “[E]ach time [the deliberative process privilege] is asserted the district court must undertake a
fresh balancing of the competing interests,” taking into account factors such as “the relevance of the
evidence,” “the availability of other evidence,” “the seriousness of the litigation,” “the role of the
government,” and the “possibility of future timidity by government employees.” x x x (Emphasis,
italics and underscoring supplied)
Petitioners have failed to present the strong and “sufficient showing of need” referred to in the immediately cited
cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process
effectively results in the bargaining away of their economic and property rights without their knowledge and
participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for
the people to have access to the initial offers exchanged during the negotiations since only through such disclosure
can their constitutional right to effec-
_______________
52 Supra note 47.
532
ANNOTATED
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tively participate in decision-making be brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a
question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents
purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider
these “alleged consultations” as “woefully selective and inadequate.” 53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese
representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the
documents bearing on them is, as petitioners claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA
to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet
binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has
already been, in the words of PMPF v. Manglapus, “ample opportunity for discussion before [the treaty] is
approved.”
The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be
able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have already publicly
expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its
specific provisions. Numerous articles and statements critical of the JPEPA have
_______________
53 Rollo, p. 349.
533
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been posted on the Internet. 54 Given these developments, there is no basis for petitioners’ claim that access to the
Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject
documents on the basis of Congress’ inherent power to regulate commerce, be it domestic or international. They
allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the
JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein,
they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and
authority the President has to negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464. 55
_______________
54 For a small sampling, vide “Primer sa Japan-Philippine Economic Partnership Agreement” (JPEPA) at

www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; “A RESOLUTION EXPRESSING SUPPORT TO THE CALLS
FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES PARTNERSHIP AGREEMENT (JPEPA)”
at www.nccphilippines.org/indexfiles/Page1562.htm; “JPEPA Ratification: Threat Economics”
at http://www.aer.ph/index.php?option/=
com_content&task=view&id=632&Itemid=63 (all sites visited on February 2, 2008).
55 Entitled “A Decree to Consolidate and Codify All the Tariff and Customs Laws of the Philippines,” promulgated
June 11, 1978. In light of the arguments of petitioners, the most salient portion of the provisions cited by them is Section
402(1) which states, in part: “For the purpose of expanding foreign markets x x x in establishing and maintaining better
relations between the Philippines and other countries, the President is authorized from time to time:
To enter into trade agreements with foreign governments or instrumentalities thereof; x x x” (1.1)
534
ANNOTATED
Aquino
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international
agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides:
The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it 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.” “(2)
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII—the article on
the Executive Department—which states:
“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 doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole
organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held:
“By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is
the sole organ and authority in the external affairs of the country. In many ways, the President is
the chief architect of the nation’s foreign policy; his “dominance in the field of foreign relations is
(then) conceded.” Wielding vast powers and influence, his conduct in the external affairs of the
nation, as Jefferson describes, is “executive altogether.”
As regards the power to enter into treaties or international agreements, the Constitution vests
the same in the President, subject only to the concurrence of at least two thirds vote of all the
members of the Senate. In this light, the
_______________
56 396 Phil. 623, 663; 342 SCRA 449, 494 (2000).
535
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negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain
solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him
no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it. x x x” (Italics in the original; emphasis and italics supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled:
“In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign
nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with
respect to international affairs. Hence, the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. x x x” (Emphasis and
underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the
President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of
the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with
foreign nations pro-
_______________
57 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.

536
ANNOTATED
Aquino
vided under P.D. 146458 may be interpreted as an acknowledgment of a power already inherent in its office. It may
not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty
negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement
of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the
relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere
in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only
to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the
treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of
Representatives fail to present a “sufficient showing of need” that the information sought is critical to the
performance of the functions of Congress, functions that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective, not having been done
seasonably as it was raised only in their Comment to the present petition and not during the House Committee
hearings.
_______________
58 Supra note 55.
537
VOL. 558, JULY 16, 2008 537
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That respondents invoked the privilege for the first time only in their Comment to the present petition does not
mean that the claim of privilege should not be credited. Petitioners’ position presupposes that an assertion of the
privilege should have been made during the House Committee investigations, failing which respondents are deemed
to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the
documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the
JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested
copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of
privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are
accompanied by precise and certain reasons for preserving the confidentiality of the information being sought.
Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be
construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what
respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for
information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue
a subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials—
out of respect for their office—until resort to it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. 538
ANNOTATED
Aquino
The privilege is an exemption to Congress’ power of inquiry. 59 So long as Congress itself finds no cause to
enforce such power, there is no strict necessity to assert the privilege. In this light, respondents’ failure to invoke the
privilege during the House Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents’ Comment to this petition
fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the
President or through the Executive Secretary “by order of the President.”60 Respondents’ claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without
him adding the phrase “by order of the President,” shall be considered as partially complying with the requirement
laid down in Senate v. Ermita. The requirement that the phrase “by order of the President” should accompany the
Executive Secretary’s claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the petition. 61 A strict application of this
requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people’s right to
information
_______________
59 G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44.

60 Id., at p. 68.
61 According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21, 2006.
Respondents filed their Comment on May 15, 2006.
539
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against any abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to
veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise
thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently
addressed above.
After its historical discussion on the allocation of power over international trade agreements in the United States,
the dissent concludes that “it will be turning somersaults with history to contend that the President is the sole organ
for external relations” in that jurisdiction. With regard to this opinion, We make only the following observations:
1.
There is, at least, a core meaning of the phrase “sole organ of the nation in its external relations” which is not
being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that “Congress has the power to regulate commerce with
foreign nations but does not have the power to negotiate international agreements directly.”62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA
documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented
from gaining access to these documents.
_______________
62 Revised Dissenting Opinion, p. 15 (Emphasis and italics supplied).

540
ANNOTATED
Aquino
On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63—and in
other cases both before and since—should be applied:
“This Court has long and consistently adhered to the legal maxim that those that cannot be done
directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory
prohibition against a direct government guarantee would not only make a mockery of what the BOT
Law seeks to prevent—which is to expose the government to the risk of incurring a monetary obligation
resulting from a contract of loan between the project proponent and its lenders and to which the
Government is not a party to—but would also render the BOT Law useless for what it seeks to achieve
—to make use of the resources of the private sector in the “financing, operation and maintenance of
infrastructure and development projects” which are necessary for national growth and development but
which the government, unfortunately, could ill-afford to finance at this point in time.” 64
Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to
participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny—even to the point of giving
them access to the offers exchanged between the Japanese and Philippine delegations—would have made a mockery
of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it vested the
power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the
President, which our Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S.
Constitution
_______________
63 450 Phil. 744; 402 SCRA 612 (2003), penned by then Associate Justice Puno.
64 Id., at p. 833 (Italics in the original, emphasis and underscoring supplied)
541
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excludes the House of Representatives from the treaty-making process:
“x x x The fluctuating, and taking its future increase into account, the multitudinous composition of
that body, forbid us to expect in it those qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very complication of the business by
introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of representatives, and the greater length of
time which it would often be necessary to keep them together when convened, to obtain their sanction in
the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought
to condemn the project.” 65
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the
U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in
that body the power to concur in the validity of the treaty after negotiations have been concluded. 66 Much less,
therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents
would set a
_______________
65 The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).
66 Article II Section 2 of the U.S. Constitution states: “He [the President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur x x x.” (Emphasis
and underscoring supplied) On the other hand, Article VII Section 21 of the Philippine Constitution states: “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.”
542
ANNOTATED
Aquino
precedent for future negotiations, leading to the contravention of the public interests articulated above which the
Constitution sought to protect, the subject documents should not be disclosed.
The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject
JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June
23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations
were still pending; 2.
In their Comment, respondents contend that “the negotiations of the representatives of the Philippines as well as
of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial
deliberations and working drafts of opinions are accorded strict confidentiality.” That respondents liken the
documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions
evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the
negotiations.
Judicial deliberations do not lose their confidential character once a decision has been promulgated by the
courts. The same holds true with respect to working drafts of opinions, which are comparable to intra-agency
recommendations. Such intra-agency recommendations are privileged even after the position under consideration by
the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty
to disclose only definite propositions, and not the inter-agency and intra-agency communications during the stage
when common assertions are still being formulated.67
The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their
need 3.
_______________
67 Supra note 18.
543
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for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to
subpoena the documents. This strongly undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v.
Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual
Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself
finds the subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members of the House of
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon 68held, the showing
required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of
the function in the performance of which the material was sought, but also the degree to which the material was
necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published,
petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see
fit. Since such publication, petitioners’ need, if any, specifically
_______________
68 162 U.S. App.D.C. 183, 189.

544
ANNOTATED
Aquino
for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent
contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would
impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in
keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being
sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations
pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner—requesting parties to show that they have a strong need
for the information sufficient to overcome the privilege. They have not, however.
Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege “by order of
the President,” the same may not be strictly applied to the privilege claim subject of this case. 4.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was
laying down a new rule for which there is no counterpart even in the United States from which the concept of
executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of
Justice,69 citing In re Sealed Case,70 “the issue of whether a President must personally invoke the [presiden-
_______________
69 365 F.3d 1108, 361 U.S.App.D.C. 183 (2004).

70 Supra note 47.
545
VOL. 558, JULY 16, 2008 545
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tial communications] privilege remains an open question.” U.S. v. Reynolds,71 on the other hand, held that “[t]here
must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after
actual personal consideration by that officer.”
The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of
preventing the abuse of the privilege in light of its highly exceptional nature. The Court’s recognition that the
Executive Secretary also bears the power to invoke the privilege, provided he does so “by order of the President,” is
meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on
executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in
this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v.
Ermitabecame final.
To show that 5. PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court
therein erred in citing US v. Curtiss-Wright72 and the book entitled The New American Government and Its
Work73 since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to
information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches
of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision
between governmental power over the conduct of foreign affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright—a case that upholds the secrecy of diplomatic negotiations
against
_______________
71 345 U.S. 1, 73 S.Ct. 528 (1953).

72 Supra at note 63.
546
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congressional demands for information—in the course of laying down a ruling on the public right to information—
only serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-
legislative conflict, but so did Chavez v. PEA74 which held that “the [public’s] right to information . . . does not
extend to matters recognized as privileged information under the separation of powers.” What counts as privileged
information in an executive-legislative conflict is thus also recognized as such in cases involving the public’s right
to information.
Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a valid limitation
to that right the same privileged information based on separation of powers—closed-door Cabinet meetings,
executive sessions of either house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-
legislative conflict or a citizen’s demand for information, as closely intertwined, such that the principles applicable
to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in
each context, this may give rise to the absurd resultwhere Congress would be denied access to a particular
information because of a claim of executive privilege, but the general public would have access to the same
information, the claim of privilege notwithstanding.
_______________
74 Supra note 19.

547
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Absurdity would be the ultimate result if, for instance, the Court adopts the “clear and present danger” test for
the assessment of claims of privilege against citizens’ demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State
has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is
covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This
would lead to a situation where it would be more difficult for Congress to access executive information than it
would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by executive
privilege, the party demanding the information must present a “strong showing of need,” whether that party is
Congress or a private citizen.
The rule that the same “showing of need” test applies in both these contexts, however, should not be construed
as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in
every particular instance is highly significant in determining whether to uphold a claim of privilege. This “need” is,
precisely, part of the context in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive privilege
controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-
Wrightcase.
The claim that the book cited in PMPF v. Manglapusentitled The New American Government and Its Work could
not have taken into account the expanded statutory right to in-548
ANNOTATED
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formation in the FOIA assumes that the observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best,
speculative.
As to the claim in the dissent that “[i]t is more doubtful if the same book be used to calibrate the importance of
the right of access to information in the Philippine setting considering its elevation as a constitutional right,” we
submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of
executive privilege which is itself constitutionally-based.76 Hence, the comments in that book which were cited
in PMPF v. Manglapus remain valid doctrine.
The dissent further asserts that the Court has never used “need” as a test to uphold or allow inroads into rights
guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit
without using the term “need.” 6.
In executive privilege controversies, the requirement that parties present a “sufficient showing of need” only
means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome
the claim of privilege.77 Verily, the Court in such cases engages in a balancing
_______________
76 U.S. v. Nixon (418 U.S. 683) states: “Nowhere in the Constitution x x x is there any explicit reference to a privilege
of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it
is constitutionally based.” (Emphasis, italics and underscoring supplied)
77 In re Sealed Case (121 F.3d 729) states thus: “Nixon, GSA, Sirica, and the other Nixon cases all employed a
balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can
be overcome. Under this methodology, these opinions balanced the public interests served by protecting the
President’s confidentiality in a particular context with those furthered by requiring disclosure.” (Emphasis and italics
supplied)
549
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of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental
rights. Secretary of Justice v. Lantion,78 which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the “clear and present danger” test to the present
controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply.
_______________
78 G.R. No. 139465, October 17, 2000, 343 SCRA 377, penned by then Associate Justice Reynato S. Puno.
In that case, respondent Mark Jimenez claimed under the due process clause the right to notice and hearing in the
extradition proceedings against him. Consider the following enlightening disquisition of the Court:
“In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process predicated
on Section 1, Article III of the Constitution, which provides that “No person shall be deprived of life, liberty, or property
without due process of law . . .” Without a bubble of a doubt, procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves.
“This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our
national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States of persons
charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive
on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers.
“Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right
being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we
accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. x x x (Emphasis,
italics, and underscoring supplied)
550
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It would appear that the only disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that “it suffices that information is of public concern for it to be covered by
the right, regardless of the public’s need for the information,” and that the same would hold true even “if they
simply want to know it because it interests them.” As has been stated earlier, however, there is no dispute that the
information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of
public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as
an international trade agreement.
However, when the Executive has—as in this case—invoked the privilege, and it has been established that the
subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely
asserting that the information being demanded is a matter of public concern, without any further showing required?
Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the
JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then
explain itself when that happens? Surely, it cannot bear to say that it just had to release the information because
certain persons simply wanted to know it “because it interests them.”
Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific
“showing of need” for such information is not a relevant con-551
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sideration, but only whether the same is a matter of public concern. When, however, the government has claimed
executive privilege, and it has established that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and
economic decision-making.79
The dissent maintains that “[t]he treaty has thus entered the ultimate stage where the people can exercise their
7. right to participate in the discussion whether the Senate should concur in its ratification or not.” (Emphasis
supplied) It adds that this right “will be diluted unless the people can have access to the subject JPEPA documents.”
What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the
qualified nature of the public’s right to information. It is beyond dispute that the right to information is not absolute
and that the doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We
reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA,
and they have been able to articulate their different opinions without need of access to the JPEPA negotiation
documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
Against our ruling that the principles applied in 8. U.S. v. Nixon, the Senate Select Committee case, and In re
Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that
the U.S. Court was there addressing only the President’s assertion of privilege in the context of a criminal trial, not a
civil litigation nor a congressional demand for information. What this caveat
_______________
79 Constitution, Art. XIII, Sec. 16.

552
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means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does
not, however, absolutely mean that the principles applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in
contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services80—which involved
former President Nixon’s invocation of executive privilege to challenge the constitutionality of the “Presidential
Recordings and Materials Preservation Act”81—and the above-mentioned In re Sealed Case which involved a claim
of privilege against a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already
mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability82—a case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance between the President’s generalized
interest in confidentiality and congressional demands for information, “[n]onetheless the [U.S.] Court laid down
principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential
communication privilege in the case at bar.” 83 While the Court was divided in Neri, this opinion of the Chief
Justice was not among the points of disagreement, and We similarly hold now that the Nixoncase is a useful guide in
the proper resolution of the present controversy, notwithstanding the difference in context.
_______________
80 433 U.S. 425.

81 88 Stat. 1695.
82 G.R. No. 180643, March 25, 2008, 549 SCRA 77.
83 Emphasis supplied.
553
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Verily, while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no
longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has become moot
and academic, it having been made accessible to the public since September 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents’ claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September
13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the
application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners—both
private citizens and members of the House of Representatives—have failed to present a “sufficient showing of
need” to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the present petition, and not during
the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a
waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v.
Ermita that executive privilege should be invoked by the President or through the Executive Secretary “by order of
the President.”554
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WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Quisumbing, Corona, Chico-Nazario, Velasco, Jr., Nachura, Reyes and Leonardo-De Castro, JJ., concur.
Puno (C.J.), See Dissenting Opinion.
Ynares-Santiago, J., I join C.J.’s dissenting opinion.
Carpio, J., See Concurring Opinion.
Austria-Martinez, J., I join in the dissenting opinion of Chief Justice.
Azcuna, J., I dissent in a separate opinion.
Tinga, J., In the result. See separate opinion.
Brion, J., No part.
CONCURRING OPINION
CARPIO,J.:
I concur with the ponencia of Justice Conchita Carpio-Morales on the following grounds:

Offers and counter-offers between States negotiati 1.ng a treaty are expected by the negotiating States to
remain confidential during the negotiations prior to the signing of the treaty. There is no dispute on this.
After the signing of the treaty, the public disclosure of such offers and counter-offers depends on the consent of
2. both negotiating States. A State may wish to keep its offers and counter-offers confidential even after the signing
of the treaty because it plans to negotiate similar treaties with other countries and it does not want its negotiating
positions known beforehand by such other countries. The offers and counter-offers of a negotiating State usually
include references to or discussions of the offers and counter-offers of the other negotiating State. Hence, a
negotiating State cannot decide alone555
VOL. 558, JULY 16, 2008 555
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to disclose publicly its own offers and counter-offers if they refer to or discuss the offers and counter-offers of the
other negotiating State.
If the Philippines does not respect the confidentiality of the offers and counter-offers of its negotiating partner
State, then other countries will be reluctant to negotiate in a candid and frank manner with the Philippines.
Negotiators of other countries will know that Philippine negotiators can be forced to disclose publicly offers and
counter-offers that their countries want to remain confidential even after the treaty signing. Thus, negotiators of such
countries will simply repeat to Philippine negotiators offers and counter-offers that they can disclose publicly to
their own citizens, which offers and counter-offers are usually more favorable to their countries. This denies to
Philippine negotiators the opportunity to hear, and explore, other more balanced offers or counter-offers from
negotiators of such countries. A writer on diplomatic secrets puts it this way: 3.
“x x x Disclosure of negotiating strategy and goals impairs a party’s ability to negotiate the most
favorable terms, because a negotiating party that discloses its minimum demands insures that it will get
nothing more than the minimum. Moreover, those involved in the practice of negotiations appear to be in
agreement that publicity leads to ‘grandstanding,’ tends to freeze negotiating positions, and inhibits the
give-and-take essential to successful negotiation. As Sissela Bok points out, if ‘negotiators have more to
gain from being approved by their own sides than by making a reasoned agreement with competitors or
adversaries, then they are inclined to ‘play to the gallery . . . .’ In fact, the public reaction may leave them
little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace
with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a
willingness to remove Israel’s existing settlements from Judea and Samaria in return for peace.” 1
_______________
1 Benjamin S. DuVal, The Occasions of Secrecy, University of Pittsburgh Law Review, Spring 1986.

556
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In the present case, at least one negotiating State—the Philippines—does not want to disclose publicly the offers
and counter-offers, including its own. The Philippines is expected to enter into similar treaties with other countries.
The Court cannot force the Executive branch to telegraph to other countries its possible offers and counter-offers
that comprise our negotiating strategy. That will put Philippine negotiators at a great disadvantage to the prejudice
of national interest. Offers and counter-offers in treaty negotiations are part of diplomatic secrets protected under the
doctrine of executive privilege. Thus, in 4. United States v. Curtiss-Wright,2 the leading case in American
jurisprudence on this issue, the U.S. Supreme Court, quoting with approval a letter of President George Washington,
held:
“x x x Indeed, so clearly is this true that the first President refused to accede to a request to lay before the
House of Representatives the instructions, correspondence and documents relating to the negotiation of
the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never
since been doubted. In his reply to the request, President Washington said:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy;
and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic; for this
might have a pernicious influence on future negotiations, or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the President,
with the advice and consent of the Senate, the principle on which that body was formed confining it
to a small number of members. To admit, then, a right in the House of Representatives to demand
and to have as a matter of course all the papers respecting a negotiation with a foreign power would
be to establish a dangerous precedent.” (Emphasis supplied)
_______________
2 299 U.S. 304 (1936).

557
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The negotiation of treaties is different from the awarding of contracts by government agencies. In diplomatic
negotiations, there is a traditional expectation that the offers and counter-offers of the negotiating States will remain
confidential even after the treaty signing. States have honored this tradition and those that do not will suffer the
consequences. There is no such expectation of keeping confidential the internal deliberations of government
agencies after the awarding of contracts. 5.
However, in the ratification of a treaty, the Senate has the right to see in 6. executive session, the offers and
counter-offers made in the treaty negotiations even in the absence of consent from our treaty partner State.
Otherwise, the Senate cannot examine fully the wisdom of the treaty. In the present case, however, the Senate is not
a party.
Accordingly, I vote to DISMISS the petition.
SEPARATE DISSENTING OPINION
AZCUNA,J.:
I fully agree with the Dissenting Opinion of Chief Justice Reynato S. Puno.
The ponencia regrettably assumes that the power of Congress, when it investigates, is either in aid of legislation
or by way of oversight. What appears to have been forgotten is an equally important and fundamental power and
duty of Congress and that is its informing function by way of investigating for the purpose of enlightening the
electorate.
Arthur M. Schlesinger, in THE IMPERIAL PRESIDENCY, aptly quotes Wilson on CONGRESSIONAL
GOVERNMENT on this power:
“Congress’s “only whip,” Wilson said, “is investigation,” and that “the chief purpose of investigation,
even more than the direction of affairs, was the enlightenment of the electorate. The inquisitiveness of
such bodies as Congress is the best conceivable source of 558

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information . . . . The informing function of Congress should be preferred even to its legislative function.”
For “the only really self-governing people is that people which discusses and interrogates its
administration.” 1
This is all the more compelling in our polity because our Constitution is replete and suffused with provisions on
transparency, accountability and the right of the people to know the facts of governance, as pointed out by the Chief
Justice. Neither is the Philippines the only country that has done this. Only last year, 2007, Mexico amended its
Constitution to raise to the level of a fundamental right the public’s right to know the truth, thereby providing that:
“All information in the possession of any federal, state and municipal authority, entity, body or organization is
public x x x x.” The amendment reads:
The Amendment to Article 6 of the Constitution
The Permanent Commission of the Honorable Congress, in full use of the power bestowed on it by
Article 135 of the Constitution, and after approval by both the Chamber of Deputies and the Senate of
Mexico, as well as the legislatures, decrees:
A second paragraph with seven subsections is hereby added to Article 6 of the Mexican Constitution.
Single Article. A second paragraph with seven subsections is added to Article 6 of the Mexican
Constitution, which will now read as follows:
Article 6 . . .
For purposes of the exercise of the right to access to information, the federal government, the
states of the Federal District, each in their respective jurisdictions, will comply with the following
principles and bases:
I.All information in the possession of any federal, state and municipal authority, entity, body
and organism [organs] is
_______________
1 Schlesinger, 10, 76-77 quoting: Wilson, Congressional Government, 278, 279, 299, 301, 303. (Emphasis supplied.)
559
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public and may only be temporarily withheld in the public interest in accordance with
legislation. In interpreting this right, the principle of the maximum public-ness must prevail.
Information referring to individual’s private lives and personal data shall be protected as
stipulated in and with the exceptions established by law. II.
Without having to show any involvement in the topic or justify its use, all individuals will have
access, free of charge, to public information, his/her personal data, or to the rectification of said
data. III.
Mechanisms for access and expeditious review procedures shall be established. These
procedures will be substantiated before specialized, impartial bodies with operational, managerial
and decision-making autonomy. IV.
Entities herein mandated shall preserve their documents in updated administrative archives and
shall publish in the available electronic media complete, updated information about their
management indicators and the exercise of public resources. V.
Legislation will determine the manner in which those mandated to comply will make public the
information about public resources given to individuals or entities. VI.
Incompliance [Noncompliance] with the stipulations regarding access to public information will
be sanctioned accordingly to the law. VII.
TRANSITORY ARTICLES
First.The present Decree shall go into effect the day after its publication in the Official Federal
Gazette.
Second.The federal government, the states and the Federal District, in their respective jurisdictions,
shall issue legislation about access to public information and transparency, or make the necessary changes
no later than one year after this Decree goes into effect.
Third.The federal government, the states and the Federal District must establish electronic systems so that
any person can use from a distance the mechanisms for access to information and the review procedures
mentioned in this Decree. Said systems must be 560

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functioning no later than two years after the Decree goes into effect. State laws shall establish whatever is
needed for municipalities with more than 60,000 inhabitants and the territorial sub-divisions of the
Federal District to have their own electronic systems within that same period of time.” [Emphasis
supplied.] 2
Transparency is in fact the prevalent trend and non-disclosure is the diminishing exception. The reason lies in
the recognition under international law of the fundamental human right of a citizen to take part in governance, as set
forth in the 1948 United Nations Universal Declaration of Human Rights, a right that cannot be realized without
access to information.
And even in the United States from where the privilege originated no President has claimed a general
prerogative to withhold but rather the Executive has claimed particular exceptions to the general rule of unlimited
executive disclosure:
“Conceding the idea of Congress as the grand inquest of the nation, Presidents only claimed particular
exceptions to the general rule of unlimited executive disclosures—Washington, the protector of the
exclusive constitutional jurisdiction of one house of Congress against invasion by the other house;
Jefferson, the protector of presidential relationship within the executive branch and the defense of that
branch against congressional harassment; Taylor, the protection of ongoing investigation and litigation;
Polk, the protection of state secrets in intelligence and negotiation. While exceptions might accumulate,
no President had claimed a general and absolute prerogative to withhold.” 3
The President, therefore, has the burden to show that a particular exception obtains in every case where the
privilege is claimed. This has not been done in the present case. All that the Senate is asking for are copies of the
starting offers
_______________
2 Ricardo Becerra, Mexico: Transparency and the Constitution, Voices of Mexico, Issue 80, Sept.-Dec. 2007, pp. 11-
14.
3 Op cit., note 1 at p. 83.
561
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of the Philippines and of Japan. What is the deep secret in those papers? If the final product is and has been
disclosed, why cannot the starting offers be revealed? How can anyone, the Senate or the electorate included, fathom
—to use the favorite word of a counsel—the end product if one is not told the starting positions?
Furthermore, Executive Secretary Ermita did not really invoke the privilege. All he said was that, at the time of
the request, negotiations were on-going, so that it was difficultto provide all the papers relative to the proposed
Treaty (which was then the request of the Senate). He did not say it was privileged or secret or confidential but that
it was difficult at the time to comply with the request as the Executive understandably had its hands full in the midst
of the negotiations.
Now the negotiations are over. The proposed treaty has been signed and submitted to the Senate for ratification.
There is no more difficulty in complying with the now reduced request of giving copies of the starting offers of the
Philippines and of Japan.
Since the privilege is an exception to the rule, it must be properly, seasonably and clearly invoked. Otherwise, it
cannot be applied and sustained.
Finally, as Ex parte Milligan4 sums it:
“A country preserved at the sacrifice of all the cardinal principles of liberty is not worth the cost of
preserving.” 5
I vote to compel disclosure of the requested documents.

_______________
4 4 Wall. 120, 126 (1866).

5 See, A.M. Schlesinger, Jr., The Imperial Presidency, 1973, p. 70.
562
ANNOTATED
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SEPARATE OPINION
TINGA,J.:
The dissent of our eminent Chief Justice raises several worthy points. Had the present question involved the
legislative consideration of a domestic enactment, rather than a bilateral treaty submitted for ratification by the
Senate, I would have no qualms in voting to grant the petition. However, my vote to dismiss the petition, joining in
the result of the ponencia of the esteemed Justice Morales, is due to my inability to blithely disregard the diplomatic
and international ramifications should this Court establish a rule that materials relevant to treaty negotiations are
demandable as a matter of right. The long-standing tradition of respecting the confidentiality of diplomatic
negotiations is embodied in the rule according executive privilege to diplomatic secrets.
The ponente engages in a thorough and enlightening discussion on the importance and vitality of the diplomatic
secrets privilege, and points out that such privilege, which is a specie of executive privilege, serves to balance the
constitutional right to information invoked in this case. If I may add, in response to the Dissenting Opinion which
treats the deliberative process privilege as “a distinct kind of executive privilege” from the “diplomatic secrets
privilege,” notwithstanding the distinction, both deliberative process privilege and diplomatic secrets privilege
should be jointly considered if the question at hand, as in this case, involves such diplomatic correspondences
related to treaty negotiations. The diplomatic character of such correspondences places them squarely within the
diplomatic secrets privilege, while the fact that the ratification of such treaty will bestow on it the force and effect of
law in the Philippines also places them within the ambit of the deliberate process privilege. Thus, it would not be
enough to consider the question of privilege from only one of those two perspectives, as both species of executive
privilege should563
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be ultimately weighed and applied in conjunction with each other.
In ascertaining the balance between executive privilege and the constitutional right to information in this case, I
likewise consider it material to consider the implications had the Court established a precedent that would classify
such documents relating to treaty negotiations as part of the public record since it is encompassed within the
constitutional right to information. The Dissenting Opinion is unfortunately unable to ultimately convince that
establishing such a general rule would not set the Philippines so far apart from the general practice of the community
of nations. For if indeed the Philippines would become unique among the governments of the world in establishing
that these correspondences related to treaty negotiations are part of the public record, I fear that such a doctrine
would impair the ability of the Philippines to negotiate treaties or agreements with foreign countries. The Philippines
would become isolated from the community of nations, and I need not expound on the negative and destabilizing
implications of such a consequence.
It should be expected that national governments, including our own, would insist on maintaining the presumptive
secrecy of all documents and correspondences relating to treaty negotiations. Such approach would be maintained
upon no matter how innocuous, honest or above-board the privileged information actually is, since an
acknowledgment that such information belongs to the public record would diminish a nation’s bargaining power in
the negotiation of treaties. This truth may be borne moreso out of realpolitik, rather then the prevalence of a pristine
legal principle, yet it is a political reality which this Court has to contend with since it redounds to the ultimate
wellbeing of the Philippines as a sovereign nation. On the premise that at least a significant majority of the most
relevant players in the international scene adhere to the basic confidentiality of treaty negotiations no matter the
domestic implications of such confidentiality, then it can only be expected that such nations will hesitate, if not
refuse outright,564
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to negotiate treaties with countries which do not respect that same rule.
The Dissenting Opinion does strive to establish that in certain countries such as the United States, the United
Kingdom, Australia and New Zealand, there is established a statutory right to information that allows those states’
citizens to demand the release of documents pertinent to public affairs. However, even the dissent acknowledges that
in the United Kingdom for example, “confidential information obtained from a State other than the United
Kingdom” or information that would be likely to prejudice relations between the United Kingdom and other
countries are exempt from its own Freedom of Information Act of 2000. It is impossible to conclude, using the
examples of those countries, that there is a general presumptive right to access documents relevant to diplomatic
negotiations.
It would be a different matter if the petitioners or the dissent were able to demonstrate that a significant number
of nations have adopted a paradigm that incorporates their treaty negotiations into the public record out of
recognition of the vital right to information, transparency, good governance, or whatever national interest revelation
would promote; or that there is an emerging trend in international law that recognizes that treaty negotiations are not
privileged in character, or even if so, that the privilege is of such weak character that it may easily be overcome. If
either circumstance was established, it would be easier to adopt the position of the dissent, which admirably attempts
to infuse full vitality into the constitutional rights of the people, as it would assure that such constitutional
affirmation would not come at the expense of the country’s isolation from the community of nations.
Unfortunately, neither the Dissenting Opinion nor the petitioners herein, have attempted to engage such perspective.
A cursory inquiry into foreign jurisprudence and international law does not reveal that either of the two trends exist
at the moment. In the United Kingdom, the concept of State interest565
VOL. 558, JULY 16, 2008 565
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immunity (formerly known as “Crown Privilege”) guarantees that information, the disclosure of which would be
prejudicial to the interests of the State, may not be disclosed. In the Corfu Channel Case,1 the International Court of
Justice affirmed the United Kingdom’s refusal to turn over certain documents relevant to its dispute with Albania on
the ground of national security. In Australia, the Attorney General’s certification that information may not be
disclosed for the reason that it would prejudice the security, defense or international relations of Australia is
authoritative and must be adhered to by the court.2
According to commentaries on the law on evidence in Pakistan, “if the privilege is claimed on the ground that
the document relates to the affairs of the State which means maters of public nature in which a State is concerned
and disclosure of which will be prejudicial to public interest or endangers national defense or is detrimental to good
diplomatic relations then the general rule [of judicial review] ceases to apply and the Court shall not inspect the
document or show it to the opposite party unless the validity of the privilege claimed is determined.” 3
The International Criminal Tribunal for the former Yugoslavia, in a decision dated 18 July 1997, did recognize
an international trend that in cases where national security or state secrets privilege is invoked, the courts may
nonetheless assess the validity of the claim, thus requiring the disclosure of such documents to the courts or its
designates.4 Nonetheless, assuming that such a ruling is indicative of an emerging norm in international law, it only
establishes that the invoca-
_______________
1 United Kingdom v. Albania, 1949 I.C.J. 4 (Apr. 9).

2 See paragraphs 144 & 145, DECISION ON THE OBJECTION OF THE REPUBLIC OF CROATIA TO THE
ISSUANCE OF SUBPOENAE DUCES TECUM, International Criminal Tribunal for the former Yugoslavia (18 July
1997).
3 See id.
4 See note 2.
566
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tion of state secrets cannot be taken at face value but must be assessed by the courts. The Dissenting Opinion
implicitly goes further and establishes that documents involved in diplomatic negotiations relating to treaty
agreements should form part of the public record as a consequence of the constitutional right to information. I would
have been more conformable to acknowledge such a doctrine if it is supported by a similar trend in foreign
jurisprudence or international law.
Where the contracting nations to a treaty share a common concern for the basic confidentiality of treaty
negotiations it is understandable that such concern may evolve unto a firm norm of conduct between them for as
long as no conflict between them in regard to the treaty emerges. Thus, with respect to the subject treaty the
Government of the Philippines should expectedly heed Japan’s normal interest in preserving the confidentiality of
the treaty negotiations and conduct itself accordingly in the same manner that our Government expects the Japanese
Government to observe the protocol of confidentiality.
Even if a case arises between the contracting nations concerning the treaty it does not necessarily follow that the
confidentiality of the treaty negotiations may be dispensed with and looked into by the tribunal hearing the case,
except for the purposes mentioned in Article 32 of the Vienna Convention of the Law of Treaties. The Article
provides:
32 Article
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the interpretation according to article 31:
leaves the meaning ambiguous or obscure; or (a)
leaves to a result which is manifestly absurd or unreasonable. (b)
567
VOL. 558, JULY 16, 2008 567
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The aforequoted “preparatory work” or travaux preparatiores may be used either to confirm the meaning of the
treaty or as an aid to interpretation where, following the application of Article 32, the meaning is ambiguous or
obscure or leads to a result which is manifestly absurd or unreasonable. 5 The article may be limited in design as a
rule in the interpretation of treaties.
Moreover, it is less clear what exactly classifies documents or correspondences as “preparatory work.” Should
such preparatory work have been cleared for disclosure by the negotiating countries? In 1995, the International
Court of Justice, in Qatar v. Bahrain,6 dealt with Bahrain’s claim that following Article 32, the ICJ should adopt its
theory concerning a territorial dispute based on the text of a documents headed “Minutes” signed at Doha on 25
December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia. While the ICJ ultimately
rejected Bahrain’s contention on the ground that such minutes could not provide conclusive supplementary elements
for the interpretation of the text adopted, it is useful to dwell on the fact that such a document classified as
“preparatory work” was, at the very least, expressly approved by the negotiating parties through their Foreign
Ministers.
In the case at bar, it appears that the documents which the petitioners are particularly interested in their
disclosure are the various drafts of the JPEPA. It is not clear whether such drafts were ever signed by the Philippine
and Japanese governments, or incorporated in minutes or similar documents signed by the two governments. Even
assuming that they were signed but without any intention to release them for public documentation, would such
signatures already classify the minutes as part of “preparatory work” which, following
_______________
5 International Law, ed. By Malcolm D. Evans, p. 188.

6 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility,
Judgment, ICJ Reports 995.
568
ANNOTATED
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the Vienna Convention, provides supplementary means of interpretation and should logically be within the realm of
public disclosure? These are manifestly difficult questions which unfortunately, the petitioners and the Dissenting
Opinion did not adequately address.
Finally, I wish to add that if the petitioner in this case is the Senate of the Philippines, and that it seeks the
requested documents in the process of deliberating on the ratification of the treaty, I will vote for the disclosure of
such documents, subject to mechanisms such as in camerainspection or executive sessions that would have accorded
due regard to executive privilege. However, the reason behind such a position will be based not on the right to
information, but rather, on the right of the Senate to fully exercise its constituent function of ratifying treaties.
DISSENTING OPINION
PUNO,C.J.:
Some 22,000 years ago, the homo sapiens in the Tabon caves of Palawan gathered food, hunted, and used stone
tools to survive. Advancing by thousands of years, the early inhabitants of our land began to trade with neighboring
countries. They exchanged wax, rattan, and pearls for porcelain, silk, and gold of China, Indo-China, and
Malaysia.1 The 16th century then ushered in the galleon trade between Manila and Acapulco. The 1700s saw the
genesis of the Filipino trading with the British, followed by the German and the French in the 1800s. The 1900s
opened commerce between the Philippines and the United States of America. 2 Today, with the onset of globalization
of the economy and the shrinking of the world through technology, a far more complicated interna-
_______________
1 Philippine Yearbook 2005, National Statistics Office (2005), p. 44.

2 Id., at pp. 50-51, 54-55.
569
VOL. 558, JULY 16, 2008 569
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tional trade has become a matter of survival—much like gathering food and hunting 22,000 years ago—to both
countries and individuals.
The growth and development envisioned by globalization are premised on the proposition that the whole world
economy would expand and become more efficient if barriers and protectionist policies are eliminated. Expansion
will happen as each country opens its doors to every other producer, and more efficient producers start to compete
successfully with countries that produce at higher costs because of special protections that domestic laws and
regulations provide. Smaller countries and small enterprises will then concentrate their resources where they can be
most competitive. The logic is that ultimately, the individual consumer will benefit and lower cost will stimulate
consumption, thus increasing trade and the production of goods and services where it is economically advantageous. 3
Not a few world leaders, however, have cautioned against the downside of globalization. Pope John Paul II
observed that “(g)lobalization has also worked to the detriment of the poor, tending to push poorer countries to the
margin of international economic and political relations. Many Asian nations are unable to hold their own in a global
market economy.”4 Mahatma Gandhi’s words, although referring to infant industrialization, are prescient and of
similar import: “The world we must strive to build needs to be based on the concept of genuine social equality . . .
economic progress cannot mean that few people charge ahead and more and more are left behind.”
_______________
3 De Leon, A., “Entering the Lists: SMEs in Globalized Competition,” Bridging the Gap: Philippine Small and
Medium Enterprises and Globalization, Alfonso, O., ed. (2001), p. 49.
4 Pope John Paul II, “Ecclesia in Asia,” Synod of Bishops in Asia, 1999.
570
ANNOTATED
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The key to resolving the decisive issue in the case at bar turns on the proper framework of analysis. The instant
case involves primarily not an assessment of globalization and international trade or of the extent of executive
privilege in this global arena, but a valuation of the right of the individual and his representatives in Congress to
participate in economic governance. Economic decisions such as forging comprehensive free trade agreements
impact not only on the growth of our nation, but also on the lives of individuals, especially those who are powerless
and vulnerable in the margins of society.
First, the facts.
In 2002, Japanese Prime Minister Junichiro Koizumi introduced the “Initiative for Japan-ASEAN
Comprehensive Economic Partnership.”5 President Gloria Macapagal-Arroyo proposed the creation of a working
group to study the feasibility of an economic partnership with Japan. 6 In October of that year, the Working Group on
the Japan-Philippine Economic Partnership Agreement (JPEPA) was formed, consisting of representatives from
concerned government agencies of the Philippines and Japan. It was tasked to study the possible coverage and
content of a mutually beneficial economic partnership between the two countries. 7
On 28 May 2003, the Philippine Coordinating Committee (PCC), composed of representatives from eighteen
(18) government agencies, was created under Executive Order No. 213. It was tasked to negotiate with the Japanese
representatives on the proposed JPEPA, conduct consultations with concerned government and private sector
representatives, and draft a proposed framework for the JPEPA and its implementing agreements. 8
_______________
5 Petition, p. 17; see also Comment, p. 4.

6 Id.
7 Id., at p. 18.
8 §2, Executive Order No. 213, promulgated May 28, 2003.
571
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In June 2003, the Working Group signified that both countries were ready to proceed to the next level of
discussions and thus concluded its work. The Joint Coordinating Team (JCT) for JPEPA, composed of
representatives from concerned government agencies and the private sector, was then created. 9
On 11 December 2003, Prime Minister Koizumi and President Macapagal-Arroyo agreed that the Japanese and
Philippine governments should start negotiations on JPEPA in 2004 based on the discussions and outputs of the
Working Group and the Joint Coordinating Team. In February 2004, negotiations on JPEPA commenced. 10
On 25 January 2005, petitioners Congressman Lorenzo R. Tañada III and Congressman Mario Joyo Aguja
jointly filed House Resolution No. 551, “Directing the Special Committee on Globalization to Conduct an
Urgent Inquiry in Aid of Legislation on Bilateral Trade and Investment Agreements that Government Has
Been Forging, with Far Reaching Impact on People’s Lives and the Constitution But with Very Little Public
Scrutiny and Debate.”11 In the course of the inquiry conducted by the Special Committee on Globalization
(Committee), respondent DTI Undersecretary Thomas G. Aquino was requested to furnish the Committee a copy of
the latest draft of the JPEPA. Respondent Undersecretary Aquino was the Chairperson of the PCC. He did not
accede to the request.12
On 10 May 2005, Congressman Herminio G. Teves, as Chairperson of the Special Committee on Globalization,
wrote to respondent Executive Secretary Eduardo Ermita, requesting that the Committee be furnished all documents
on the JPEPA, including the latest drafts of the agreement, the re-
_______________
9 Petition, p. 18; see also Comment, p. 4 and Annex “C.”

10 Id., at p. 19.
11 Id., at p. 19; see also Annex “C.”
12 Id., at pp. 21-22.
572
ANNOTATED
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quests and the offers.13 Executive Secretary Ermita wrote Congressman Teves on 23 June 2005, informing him that
the DFA would be unable to furnish the Committee all documents on the JPEPA, since the proposed
agreement “has been a work in progress for about three years.” He also said that a copy of the draft
agreement would be forwarded to the Committee “as soon as the text thereof is settled and complete.” 14
On 1 July 2005, petitioner Congressman Aguja, as member of the Committee, wrote NEDA Director-General
Romulo Neri and respondent Tariff Commission Chairperson Abon to request copies of the latest text of the JPEPA.
Respondent Chairperson Abon wrote petitioner Congressman Aguja on 12 July 2005 that the former did not have a
copy of the document being requested. He also stated that “the negotiation is still ongoing” and that he was certain
respondent Undersecretary Aquino would provide petitioner Congressman Aguja a copy “once the negotiation was
completed.”15 For its part, NEDA replied through respondent Assistant Director-General Songco that petitioner
Congressman Aguja’s request had been forwarded to the office of respondent Undersecretary Aquino, who would be
in the best position to respond to the request.16
In view of the failure to furnish the Committee the requested document, the Committee resolved to subpoena the
records of the DTI with respect to the JPEPA. However, House Speaker Jose de Venecia requested the Committee to
hold the subpoena in abeyance, as he wanted to secure first the consent of President Macapagal-Arroyo to furnish
the Committee a copy of the JPEPA.17
_______________
13 Id., at p. 22.
14 Id. See also Annex “I.”
15 Id. See also Annex “J.”
16 Id., at pp. 23-24, Annex “K.”
17 Id., at p. 25, citing TSN, Committee Hearing on Resolution No. 551, 12 October 2005.
573
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On 25 October 2005, petitioner Congressman Aguja, as member of the Committee, wrote to the individual
members of the PCC, reiterating the Committee’s request for an update on the status of the JPEPA negotiations, the
timetable for the conclusion and signing of the agreement, and a copy of the latest working draft of the
JPEPA.18 None of the members provided the Committee the requested JPEPA draft. In his letter dated 2 November
2005, respondent Undersecretary Aquino replied that the Committee would be provided the latest draft of the
agreement “once the negotiations are completed and as soon as a thorough legal review of the proposed
agreement has been conducted.”19
As the Committee has not secured a copy of the full text of the JPEPA and its attachments and annexes despite
the Committee’s many requests, petitioners filed the instant Urgent Petition for Mandamus and Prohibition on 9
December 2005. They pray that the Court (1) order respondents to provide them the full text of the JPEPA,
including the Philippine and Japanese offers and all pertinent attachments and annexes thereto; and (2) restrain
respondents from concluding the JPEPA negotiations, signing the JPEPA, and transmitting it to the President until
said documents have been furnished the petitioners.
On 17 May 2006, respondents filed their Comment. Petitioners filed their Reply on 5 September 2006.
On 11 September 2006, a certified true copy of the full text of the JPEPA signed by President Macapagal-
Arroyo and Prime Minister Koizumi with annexes and the implementing agreement was posted on the website of
the Department of Trade and Industry and made accessible to the public. 20 Despite the accessibility of the signed
full text of the JPEPA, petitioners reiterated in their Manifestation and
_______________
18 Id., at p. 26, Annexes “M-1” to “M-15,” “N-1” to “N-7.”

19 Id., at p. 28, Annex “P.”
20 Respondents’ Manifestation, pp. 2-3.
574
ANNOTATED
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Motion filed on 19 September 2007 their prayer that respondents furnish them copies of the initial offers (of the
Philippines and of Japan) of the JPEPA, including all pertinent attachments and annexes thereto, and the final text
of the JPEPA prior to signing by the President(the “subject JPEPA documents”).21
I respectfully submit that the ponencia overlooks the fact that it is the final text of the JPEPA prior to its
signing by the President that petitioners seek to access when the ponencia holds at the outset, viz.:
“Considering, however, that “[t]he principal relief petitioners are praying for is the disclosure of the
contents of the JPEPA prior to its finalization between the two States parties,” (Reply to the Comment of
the Solicitor General, rollo, p. 319 [underscoring supplied]) public disclosure of the text of the JPEPA
after its signing by the President, during the pendency of the present petition, has been largely rendered
moot and academic.
x x x x x x x x x
The text of the JPEPA having been made accessible to the public, the petition has become moot and
academic to the extent that it seeks the disclosure of the “full text” thereof.” (emphasis supplied)
22
Thus, insofar as petitioners’ access to the final text of the JPEPA prior to signing by the President is concerned,
the ponencia failed to include the same among the issues for the Court to resolve.
The issues for resolution in the case at bar are substantive and procedural, viz.:
Do petitioners have standing to bring this action for I. mandamus in their capacity as citizens of the
Republic, taxpayers and members of Congress?
Does the Court have jurisdiction over the instant petition? II.
_______________
21 Petitioners’ Manifestation and Motion, p. 3.

22 Ponencia.
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Do petitioners have a right of access to the documents and information being requested in relation to the
JPEPA? III.
Will petitioners’ right to effective participation in economic decision-making be violated by the deferral of
the public disclosure of the requested documents until such time that the JPEPA has been concluded and
signed by the President? IV.
I shall focus on the jugular issue of whether or not petitioners have a right of access to the subject JPEPA
documents. Let me first take up petitioners’ demand for these documents as members of the House of
Representatives.
I. The context: the question of access of the membersof the House of Representatives to the subject JPEPA
documents is raised in relation tointernational trade agreement negotiations
In demanding the subject JPEPA documents, petitioners suing as members of the House of
Representatives invoke their power over foreign tradeunder Article VI, Section 28 (2) of the 1987 Constitution
which provides, viz.:
The 28 (2). “Sec. Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it 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.” (emphasis supplied)
Respondents, on the other hand, deny petitioners’ demand for information by contending that the President is
the sole organ of the nation in external relations and has sole authority in the negotiation of a treaty; hence,
petitioners as members of the House of Representatives cannot576
ANNOTATED
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have access to the subject JPEPA documents.23 On closer examination, respondents’ contention can be reduced into
two claims: (1) the executive has sole authority in treaty negotiations, hence, the House of Representatives has no
power in relation to treaty negotiations; and (2) the information and documents used by the executive in treaty
negotiations are confidential.
To buttress their contention, which the ponenciaupholds, respondents rely on United States v. Curtiss-Wright
Export Corporation,24 a case that has become a classic authority on recognizing executive primacy or even
exclusivity in foreign affairs in the U.S. 25 and in the Philippines.26 They also cite People’s Movement for Press
Freedom (PMPF) v. Manglapus, the only Philippine case wherein the Court, in an unpublished Resolution,
had occasion to rule on the issue of access to information on treaty negotiations. PMPF v.
Manglapus extensively quoted Curtiss-Wright, viz.:
_______________
23 Comment, p. 24; ponencia. 1987 Phil. Const. Art. VII on the Executive Department, §21 provides, viz.:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all
the Members of the S 21. Section enate.
24 299 U.S. 304 (1936).
25 Ducat, C., Constitutional Interpretation: Powers of Government(2000), Vol. 1, p. 252; Powell, H., “The
President’s Authority over Foreign Affairs: An Executive Branch Perspective,” 67 George Washington Law Review
(March 1999), n.8. See also Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corporation, Civil Aeronautics Board,
333 U.S. 103 (1948); Webster v. Doe, 486 U.S. 592, 605-06 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982).
26 See Santos v. Executive Secretary Catalino Macaraig and Secretary Raul Manglapus, G.R. No. 94070, April 10,
1992, 208 SCRA 74, and People’s Movement for Press Freedom, et al. v. Manglapus, et al., G.R. No. 84642, September
13, 1988.
577
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“In this vast external realm, with its important, complicated, delicate and manifold problems, the
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of
March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.’ Annals, 6th Cong., col. 613. The
Senate Committee on Foreign Relations at a very early day in our history (February 15, 1816), reported to
the Senate, among other things, as follows:
‘The President is the constitutional representative of the United States with regard to foreign nations.
He manages our concerns with foreign nations and must necessarily be most competent to determine
when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For
his conduct he is responsible to the Constitution. The committee considers this responsibility the surest
pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of
foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for
the national safety. The nature of transactions with foreign nations, moreover, requires caution and
unity of design, and their success frequently depends on secrecy and dispatch.’ 8 U.S. Sen. Reports
Comm. on Foreign Relations, p. 24.
It is important to bear in mind that we are here dealing not alone with an authority vested in the
President by an exertion of legislative power, but with such an authority plus the very delicate,
plenary and exclusive power of the President as the sole organ of the federal government in the field
of international relations—a power which does not require as a basis for its exercise an act of
Congress, but which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the
maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be
avoided and success for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord to the Presi- 578

ANNOTATED
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dent a degree of discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic, consular and other
officials. Secrecy in respect of information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first
President refused to accede to a request to lay before the House of Representatives the instructions,
correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of
which was recognized by the House itself and has never since been doubted.” (emphasis supplied)
27
In examining the validity of respondents’ contention and the ponencia’s affirmation thereof, that the executive
has sole authority in treaty negotiations, and that information pertaining to treaty negotiations is confidential, let me
begin by tracing respondents’ and the ponencia’ssteps back to U.S. jurisdiction as they heavily rely on Curtiss-
Wright, which was quoted in PMPF v. Manglapus, for their position.
In the U.S., there is a long-standing debate on the locus of the primary or even exclusive power over foreign
affairs.28Ironically, while Curtiss-Wright is considered a most influential decision on asserting presidential primacy
in foreign affairs, the issue in that case was the validity of Congress’ delegation of its foreign affairs power to the
President; President Franklin D. Roosevelt ordered an embargo on ammunition sales to two South American
countries in execu-
_______________
27 United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 319-320 (1936), citing 1 Messages and Papers of
the Presidents, 194.
28 Powell, H., “The President’s Authority over Foreign Affairs: An Executive Branch Perspective,” 67 George
Washington Law Review 527 (1999). See also Henkin, L. Foreign Affairs and the United States Constitution 36 (2nd ed.)
579
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tion of a Joint Resolution of Congress. Towards the end of the ponencia, Justice Sutherland stated that “it was not
within the power of the President to repeal the Joint Resolution.” 29 The oft-quoted “sole organ” remark in Curtiss-
Wright has not a few times been regarded in the U.S. as dictum in that case. 30 I make this observation to caution
against over-reliance on Curtiss-Wright, but the case at bar is not the
_______________
29 United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 331 (1936).
30 Justice Sutherland’s use of the “sole organ” remark in Curtiss-Wright prompted Justice Robert Jackson to say in
the 1952 landmark case Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 579) that at best, what can be drawn from
Sutherland’s decision is the intimation that the President “might act in external affairs without congressional authority, but
not that he might act contrary to an act of Congress.” Justice Jackson also noted that “much of the (Sutherland) opinion is
dictum.” In 1981, the District of Columbia Circuit cautioned against placing undue reliance on “certain dicta” in
Sutherland’s opinion: “To the extent that denominating the President as the ‘sole organ’ of the United States in
international affairs constitutes a blanket endorsement of plenary Presidential power over any matter extending beyond the
borders of this country, we reject that characterization.” (American Intern. Group v. Islamic Republic of Iran, 657 F.2d
430, 438 n.6 [D.C. Cir. 1981]) (Fisher, L., Invoking Executive Privilege: Navigating Ticklish Political Waters, 8 William
and Mary Bill of Rights Journal [April 2000], p. 583, 608-609).
In Dames & Moore v. Regan (453 U.S. 654 [1981]), the U.S. Supreme Court observed that sixteen years after Curtiss-
Wright was decided, Justice Jackson responded to the virtually unlimited powers of the executive in foreign affairs in the
landmark case Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 579, p. 641), viz.:
“The example of such unlimited executive power that must have most impressed the forefathers was the
prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to
doubt that they were creating their new Executive in his image.”
580
ANNOTATED
Aquino
occasion to delve into and settle the debate on the locus of the primary power in the broad area of foreign affairs. In
this vast landscape, I shall limit my view only to the subject matter of the instant case— the openness or secrecy of
treaty negotiations and, more particularly, of trade agreement negotiations.
Aside from the fact that Curtiss-Wright did not involve treaty negotiations, much less trade
agreement negotiations, that case was decided in 1936 or more than 70 years ago. Since then, the dynamics of the
allocation of power over international trade agreements between the executive and the legislature has
dramatically changed. An appreciation of these developments would provide a useful backdrop in resolving the
issue of access to the subject JPEPA documents.
Negotiation of trade agreements: A.

the question of power allocation between
the executive and Congress in U.S. jurisdiction
The U.S. constitution is a good place to start in understanding the allocation of power over international trade
agreements between the executive and the legislative branches of government.
Article II of the U.S. Constitution grants the President the power to make treaties, but only with the approval of
a super-majority of the Senate.31 Under Article I, Congress has the power to regulate foreign trade, 32 including the
power to “lay and collect Taxes, Duties, Imposts and Excises.”33
_______________
31 U.S. Const. Art. II, §2, cl. 2 provides, viz.: “(The President) shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
32 U.S. Const. Art. I, §8, cl. 3 provides, viz.: “The Congress shall have the power . . . to regulate Commerce with
foreign Nations . . . .”
33 U.S. Const. Art. I, §8, cl. 1.
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While the drafters of the U.S. Constitution discussed the commerce power and the power to make treaties, 34 there
is scant information on how they intended to allocate the powers of foreign commerce between the political
branches of government.35 “The well-recognized utility of Congressional involvement in treaty and international
agreement negotiation applies with even greater force when it comes to international trade. For here, the making of
international agreements intersects with the Constitution’s express grant of authority to Congress to regulate
commerce with foreign nations.” (emphasis supplied)36
The drafters of the Constitution gave the President power to negotiate because of the need to demonstrate clear
leadership and a unified front when dealing with other nations.37
_______________
34 Wright, L., “Trade Promotion Authority: Fast Track for the Twenty-First Century?,” 12 William and Mary Bill of
Rights Journal 979, 982 (2004). “See generally 1 The Debates in the Several Conventions on the Adoption of the Federal
Constitution (Jonathan Elliot ed., Burt Franklin reprints, photo. reprint 1987) (2d ed. 1836); The Federalist No. 75
(Alexander Hamilton); James Madison, Journal of the Federal Convention (E.H. Scott ed., Books for Libraries Press 1970)
(1840); 2 James Madison, The Debates in the Federal Convention of 1787 which Framed the Constitution of the United
States of America (Gaillard Hunt & James Brown Scott eds., 1987).” Id., at Note 25.
35 Id., citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States
Constitution, 13 Dick. J. Int’l L. 203, 224 (1995) (“Hardly anything can be found in the documentation relating to the
drafting of the Constitution so as to glean any intent on the separation of powers in the area of foreign commerce.”). Id., at
Note 26.
36 Id., at pp. 981-82, citing 148 Cong. Rec. S10,660 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus).
37 Id. “See The Federalist No. 75 (Alexander Hamilton). Another concern was that the legislative branch would not
represent the best interests of the nation as a whole, whereas the President would place the national interests ahead of those
of individual states. See Robert Knowles, Comment, Starbucks and the New Fed-
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The Senate was given the power to ratify treaties because, as the more “contemplative” arm of the legislature, it was
less subject to short-term interests than the House while still directly representing the interests of the
people.38Congress was granted the power to set tariffs and to regulate commerce in order to check the powers of the
Executive.39
Thus, under the U.S. Constitution, the President has the power to negotiate international treaties, but does not
have the constitutional authority to regulate commerce or to determine tariffs and duties. On the other hand,
Congress has the power to regulate commerce with foreign nations, but does not have the power to negotiate
international agreements directly.40 That there is a question on the demarcation of powers between the President
and Congress in international trade agreements cannot escape the eye. Throughout U.S. history, answers to this
question have come in various permutations.
In the late 1700s, after the U.S. established its independence, it had a weak military and relied on trade policies to
maintain its independence and guard its national security through restriction of imports or exports with offending
great powers.41 Congress implemented these trade policies through
_______________
eralism: The Court’s Answer to Globalization, 95 Nw. U. L. Rev. 735, 771 (2001) (referring to the “concerns raised by
Madison that the treaty-maker should represent the interests of the entire nation”).” Id., at Note 21.
38 Id., at p. 982, citing John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L.
Rev. 703, 760 (2002).
39 See Michael A. Carrier, All Aboard the Congressional Fast Track: From Trade to Beyond, 29 Geo. Wash. J. Int’l
L. & Econ. 687, 688-89 (1996).
40 Supra note 34.
41 Koh, H. & Yoo, J., “Dollar Diplomacy/Dollar Defense: The Fabric of Economics and National Security Law,” 26
Int’l Law 715, 720 (1992).
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legislation42 and ratification of commercial treaties negotiated by the President. 43 This continued in the 1800s—the
President negotiated treaties, including trade treaties, and secured the requisite Senate concurrence. 44
But beginning in the 1920s, Congress began to reassert its power over the development of international trade
policy.45 It began passing protectionist legislation to respond to pressure from domestic industries and
agriculture.46 In 1930, Congress passed the Smoot-Hawley Tariff Act of 1930, 47 which increased tariffs to an average
of fifty-three percent and increased the number of products subject to duties. 48 In retaliation, other countries quickly
subjected
_______________
42 Wilson, T., “Note, Who Controls International Trade? Congressional Delegation of the Foreign Commerce Power,”
47 Drake L. Rev. 141, 164 (1998).
43 Supra note 34, citing John Linarelli, International Trade Relations and the Separation of Powers Under the United
States Constitution, 13 Dick. J. Int’l L. 203, 208-209 (1995) (“Hardly anything can be found in the documentation relating
to the drafting of the Constitution so as to glean any intent on the separation of powers in the area of foreign
commerce.”). Id., at Note 26.
Constitution, 13 Dick. J. Int’l L. 203, 208 (1995).
46 Id., referring to the Tariff Act of 1922.
47 Supra note 34 at p. 983. The Smoot-Hawley Tariff Act, Pub. L. No. 71-361, 46 Stat. 590 (1930). “The Smoot-
Hawley Tariff Act was the ultimate display of U.S. protectionism, John Linarelli, International Trade Relations and the
Separation of Powers Under the United States Constitution, 13 Dick. J. Int’l L. 203, 210 (1995), and resulted from
Congress caving to special interests. Harold Hongju Koh, Congressional Controls on Presidential Trade Policymaking
After I.N.S. v. Chadha, 18 N.Y.U. J. Int’l L. & Pol. 1191, 1194 (1986) (“Because congressional logrolling and
horsetrading contributed to every individual duty rate, Smoot-Hawley set the most protectionist tariff levels in U.S.
history.”).” Id., at Note 36.
48 Supra note 42 at p. 166 referring to the Tariff Act of 1922.
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the U.S. to similar tariffs. In the mid-1930s, Congress realized that its setting of tariffs was at best inefficient 49and
thus passed the Reciprocal Trade Agreement Act of 1934 (the 1934 Act).50
The 1934 Act allowed the President to reduce tariffs within guidelines prescribed by Congress. 51 It
permitted the President to issue a Presidential Proclamation enacting international agreements that lowered tariffs
without any further action by Congress. 52Needless to state, the 1934 Act was a significant delegation of Congress’
power to set tariffs. But the Act had a limited lifespan and, with each extension of the Act, Congress issued more
guidelines and restrictions on the powers it had delegated to the President.53
The modern period saw a drastic alteration in the U.S. approach to negotiating trade agreements. 54Instead
of making additional changes to the 1934 Act, Congress
_______________
Rights Journal 979, 984 (2004), citing John Linarelli, International Trade Relations and the Separation of Powers Under
the United States Constitution, 13 Dick. J. Int’l L. 203, 211 (1995).
50 Id., citing Reciprocal Trade Agreements Act of 1934, Pub. L. No. 73-316, 48 Stat. 943 (1934) (allowing the
President to negotiate tariff agreements with foreign nations and implement them by Presidential Proclamation without
congressional approval).
51 Id., at Note 41, citing John Linarelli, International Trade Relations and the Separation of Powers Under the United
States Constitution, 13 Dick. J. Int’l L. 203, 211 (1995).
Constitution, 13 Dick. J. Int’l L. 203, 211-212 (1995), citing Reciprocal Trade Agreements Act of 1934.
53 Koh, H., “Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha,” 18 N.Y.U. J. Int’l
L. & Pol. 1191, 1196 (1986).
54 Koh, H., “The Fast Track and United States Trade Policy,” 18 Brook. J. Int’l L. 143, 143-48 (1992).
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passed the Trade Act of 1974 (the 1974 Act), which created modern procedures called the “fast track.”55Fast
track legislation was enacted to address conflicts between the President and Congress. 56 These conflicts stemmed
from the presidential exercise of the executive trade agreement authority and the ordinary congressional approval
procedures, which resulted in ongoing amendments and a slower, less reliable trade negotiation process. 57 Fast track
procedures were intended as a “consultative” solution to foreign trade disputes between Congress and the
President.58 It was designed to benefit both branches of government by allowing congressional input into trade
agreement negotiations while enabling “the President to guarantee to international trading partners that Congress
will decide on the final agreement promptly.”59
The 1974 Act broadened the scope of powers delegated to the President who was given the authority to make
international trade agreements affecting both tariff and non-tariff barriers. 60 With the 1974 Act, Congress delegated
to the
_______________
55 Trade Act of 1974, 19 U.S.C.A. §§2191-94.

56 Carr, T., “The Executive Trade Promotion Authority and International Environmental Review in the Twenty-First
Century,” 25 Houston Journal of International Law 141, 144-145 (2002).
57 Id., at p. 145.
58 Id.
59 Id., citing Powell, F., “Environmental Protection in International Trade Agreements: The Role of Public
Participation in the Aftermath of the NAFTA,” 6 Colo J. Int’l Envtl. L. & Pol’y 109, 116 (1995).
60 Supra note 49 at p. 984, citing Wilson, T., “Note, Who Controls International Trade? Congressional Delegation of
the Foreign Commerce Power,” 47 Drake L. Rev. 141, 169-171 (1998). “Nontariff barriers (NTBs) are essentially
anything other than a tariff or quota that is used to restrict trade. The General Agreement on Tariffs and Trade (GATT)
broadly defines NTBs as ‘[l]aws, regulations, judicial decisions and administrative rulings of general application . . .
pertaining to . . . requirements, restrictions or prohibitions on imports
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President both the power to set tariffs and the power to regulate commerce with foreign nations. 61 But while the
scope of the powers granted to the President was broader, the extent of the grant was limited. Unlike in the 1934
Act, Congress did not give the President the authority to enact international trade agreement by a simple
proclamation.62 Instead, the President had to seek congressional approval.63 To facilitate approval, the fast track
mechanism put in place procedures for congressional review of the agreement during the negotiation process. 64 The
most significant feature of the fast track procedure was that Congress could only approve or disapprove, but not
modify, the text of the agreement. 65This mechanism gave the President greater credibility when negotiating
international agreements, be-
_______________
or exports or on the transfer of payments therefore, or affecting their sale, distribution, transportation, insurance,
warehousing, inspection, exhibition, processing, mixing or other use . . . .’ General Agreement on Tariffs and Trade
(GATT), Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194, art. X, para. 1. Examples include customs
valuation, import licensing rules, subsidies, compatibility standards, quality standards, health and safety regulations, and
labeling laws. John J. Jackson et al.,Legal Problems of International Economic Relations 411 (4th ed. 2002).” Id., at Note
47.
61 Id., at p. 985.
Rights Journal 979, 984-85 (2004), citing Wilson, T., “Note, Who Controls International Trade? Congressional
Delegation of the Foreign Commerce Power,” 47 Drake L. Rev. 141, 170 (1998), referring to the Trade Act of 1974.
63 Id.
64 Id., citing Wilson, supra note 62 at pp. 170-172, referring to the Trade Act of 1974.
65 Id.
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cause other countries knew that the agreements would not be subject to prolonged debates and drastic changes by
Congress.66
In the 1980s, legislation made the fast track procedure increasingly complicated. 67 The Trade and Tariff Act of
1984 added a requirement that the President consult with the House Ways and Means Committee and the Senate
Finance Committee before giving notice of his intent to sign the agreement so that the committees could disapprove
the negotiations before formal talks even began.68 Congress effectively retained a bigger portion of its constitutional
authority over regulation of international trade. 69 In 1988, Congress passed the Omnibus Trade and
Competitiveness Act of 1988.70 The Act further “enhance(d) Congress’ power in two respects: by reserving for
either House the power to block extension of the Fast Track authority past the original expiration date and for both
houses to derail already authorized agreements from the Fast Track.” 71 Aside from the House Ways and Means and
Senate Finance Committees, the House Rules Committee was given the power to “derail” an extension of the fast
track.72
_______________
66 Id., at p. 985 (2004), citing Koh, H., “Congressional Controls on Presidential Trade Policymaking After I.N.S. v.
Chadha,” 18 N.Y.U. J. Int’l L. & Pol. 1191, 1200-03.
67 Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat. 2948.
68 Koh, H., “The Fast Track and United States Trade Policy,” 18 Brook. J. Int’l L. 143, 149 (1992).
Rights Journal 979, 986 (2004), citing Koh, H., supra note 68 at p. 150.
70 Pub. L. No. 100-418, 102 Stat. 1107.
72 Supra note 69, citing Koh, H., “The Fast Track and United States Trade Policy,” 18 Brook. J. Int’l L. 143, 151
(1992), referring to the 1988 Act §1103(b)(5)(A)-(B). “Section 1103(b)(5)(A) defines the term ‘extension disapproval
resolution’ as:
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The Act extended the fast-track for only three years.73
The fast track legislation saw its end in 1994.74 For the first time after fifty years, the executive branch was
without
_______________
a resolution of either House of the Congress . . . [that] disapproves the request of the President for the extension . . .
of the [fast-track] provisions to any implementing bill submitted with respect to any trade agreement entered into
under section 1102(b) or (c) of such Act after May 31, 1991, because sufficient tangible progress has not been made
in trade negotiations.
Section 1103(b)(5)(B) provides that extension disapproval resolutions ‘may be introduced in either House of
Congress by any member of such House [and] shall be jointly referred, in the House of Representatives, to the
Committee on Ways and Means and the Committee on Rules.’” Id., at Note 60.
73 Id., citing C. O’Neal Taylor, Fast Track, Trade Policy, and Free Trade Agreements: Why the NAFTA Turned into
a Battle, 28 Geo. Wash. J. Int’l L. & Econ. 1, 31 (1994): The President’s agreements were only to receive fast track
treatment if they were entered into before June 1, 1991. For agreements entered into after May 31, 1991, but before June 1,
1993, fast track was available only if the President requested an extension of negotiating authority and neither house
adopted an extension disapproval resolution before June 1, 1991.
74 Id., at p. 988, citing Housman, R., “The Treatment of Labor and Environmental Issues in Future Western
Hemisphere Trade Liberalization Efforts,” 10 Conn. J. Int’l L. 301, 311-13 (1995).
“Initially, the (Clinton) administration sought a virtually unfettered extension of fast-track authority for a seven year
period. . . . This first proposal was met with immediate and unified opposition . . . . (T)his first surge of opposition
amounted to a game of ‘policy chicken.’
Facing continuing opposition, the administration floated a second fast-track proposal . . . . Republicans and the
business community once again came out against this new proposal. . . . (T)he administration dropped its second fast-track
proposal and floated in its place yet another proposal. . . . While the third proposal garnered
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authority to enter into international trade agreements except through treaties subject to Senate approval. Despite
persistent attempts by President William J. Clinton and President George H.W. Bush to renew the fast
track,75Congress refused to grant the executive branch the power to enter directly into international trade
agreements from 1994 until August 2002.76
Finally, with the dawn of the new millennium, Congress enacted the Bipartisan Trade Promotion Authority Act
of 2002 (Trade Act of 2002),77 which provided for a revised fast-track procedure under the new label, “trade
promotion authority (TPA).”78 The Trade Act of 2002 was billed as “establish(ing) a partnership of equals. It
recognizes that Congress’ constitutional authority to regulate foreign trade and the President’s constitutional
authority to negotiate with foreign nations are interdependent. It requires a
_______________
quick support from opponents of the prior two proposals, it did not fare well (with other groups). The administration
rushed to counter this opposition, relying heavily on the argument that the extension of fast-track was vital to give the
administration credibility. . . . In the end, the Uruguay Round bill went forward without any fast-track extension.” Id., at
Note 70 (footnotes omitted).
75 Id., citing Lenore Sek, Congr. Res. Serv., Pub. No. IB10084, Trade Promotion Auth. (Fast-Track Authority for
Trade Agreements): Background & Devs. in the 107th Congress (2003), detailing multiple proposals and speeches made
by Clinton and Bush requesting renewal of fast-track authority); Clinton Makes Fast Track Plea To Congress, (Nov. 5,
1997), at http:// www.cnn.com/ALLPOLITICS/
1997/11/05/trade/ (last visited Mar. 4, 2003); David Schepp, Bush Wants More Trade Powers, BBC News Online (Mar.
23, 2001), available at http://news.bbc.co.uk/1/hi/business/1238717.stm.
76 Id., citing John R. Schmertz & Mike Meier, U.S. Enacts New “Fast-Track” Trade Bill, 8 Int’l L. Update 126
(2002).
77 19 U.S.C.A. §§3801-13.
78 Trade Act of 2002 §3804 (detailing the new fast-track procedures).
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working relationship that reflects that interdependence.” 79(emphasis supplied) The purpose of the Act was to attempt
again to resolve the ambiguity in the constitutional separation of powers in the area of international trade. 80
The Trade Act of 2002 was intended for Congress to retain its constitutional authority over foreign trade while
allowing performance by the President of the role of negotiatior,81 but with Congress keeping a closer watch on
the President.82 Aside from providing strict negotiating objectives to the President, Congress reserved the right to
veto a negotiated agreement. 83 The President’s power is limited by specific guidelines and concerns identified by
Congress and his negotiations may address only the issues identified by Congress in the statute and must
follow specific guidelines.84 Authorization to negotiate is
_______________
79 Supra note 69, citing 148 Cong. Rec. S10,661 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus).
80 Id., at p. 989.
81 Id., citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (“This will give Congress a
chance to affect the outcome of the negotiations well before they occur.”).
82 Id., citing 148 Cong. Rec. S10,660 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus) (“Indeed, the Trade Act of
2002 contemplates an even closer working relationship between Congress and the Administration . . . .”).
Rights Journal 979, 989 (2004), citing Trade Act of 2002 §3805(b). “If the agreement negotiated by the administration
does not meet the congressional requirements, ‘there are ways that either House of Congress can derail a trade agreement.’
148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (referring to Trade Act of 2002 §3805[b]).” Id.,
at Note 80.
84 Trade Act of 2002 §3803 provides the authorization for the President to negotiate a trade agreement with a foreign
country regarding tariff and/or nontariff barriers and the guidelines he must follow.
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given if the President determines that foreign trade is “unduly burden(ed) and restrict(ed)” and “the purposes,
policies, priorities, and objectives of (the Trade Act of 2002) will be promoted” by the negotiations. 85 The Act
provides five additional limitations on the negotiation of agreements regarding tariff barriers. 86 Negotiation of
agreements regarding non-tariff barriers is subject to the objectives, limitations and requirement of consultation and
notice provided in the Act.87 In addition, the President must notify Congress prior to initiating negotiations, in order
for the final negotiated agreement to be eligible for TPA. 88 The President is also required to consult Congress
regarding the negotiations “before and after submission of the notice.” 89 The Act also requires the President to
make specific determinations and special consultations with Congress in the areas of agriculture and textiles. 90
As oversight to ensure that the President follows the guidelines laid out by Congress, the Trade Act of 2002 created
a Congressional Oversight Group (COG) composed of members of Congress, in order to provide direct
participation and oversight to trade negotiations initiated under the Act. 91 The COG membership includes four
members of the House Committee on Ways and Means, four mem-
_______________
85 Trade Act of 2002 §3803.
86 Id., §3803(a). Limitations on modifications to tariff barriers primarily set minimums for rate of duty reductions.
87 Supra note 83 at p. 990, citing Trade Act of 2002 §3803(b) (limiting agreements as provided in sections 3802 and
3804). “The President’s actions are considerably more restricted under the Trade Act of 2002 than under previous
legislation. Compare Trade Act of 1974, 19 U.S.C.A. §§2101-2495 (1974) and Omnibus Trade and Competitiveness Act
of 1988, Pub. L. No. 100-418, 102 Stat. 1107 with Trade Act of 2002, §§3801-13.” Id., at Note 84.
88 Trade Act of 2002 §3804(a).
89 Id., §3804.
90 Id., §3804(b)-(c).
91 Id., §3807.
592
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bers of the Senate Committee on Finance, and members of the committees of the House and the Senate, “which
would have . . . jurisdiction over provisions of law affected by a (sic) trade agreement negotiations . . . .” 92 Each
member of the COG is an official advisor to the U.S. delegation in negotiations for any trade agreement under
the Act.93 The COG was created “to provide an additional consultative mechanism for Members of Congress and to
provide advice to the (United States Trade Representative) on trade negotiations.”94
To enter into an international agreement using the TPA procedures, the President must first consult with the Senate
Committee on Finance, the House Committee on Ways and Means, and the COG. 95 He must then provide written
notice to Congress of his intention to enter into negotiations. 96 The notice must include the date that negotiations are
scheduled to begin, the specific objectives of the negotiations, and whether the President seeks to create a new
agreement or
_______________
92 Id., §3807(a)(2)-(3).
93 Id., §3807(a)(4). “Without accreditation, congressional representatives would be bystanders and would not be
permitted to participate directly in negotiations. As accredited representatives, the members of the COG have the authority
to act on behalf of the United States in negotiations.” Supra note 83 at p. 992, citing Note 98.
Rights Journal 979, 992 (2004), citing 148 Cong. Rec. S9108 (daily ed. Sept. 24, 2002) (statement of Sen. Grassley); see
also Trade Act of 2002 §3807(a)(4). The purpose of the COG is “to provide advice to the Trade Representative regarding
the formulation of specific objectives, negotiating strategies and positions, the development of the applicable trade
agreement, and compliance and enforcement of the negotiated commitments under the trade agreement.”
95 Trade Act of 2002 §3804(a)(2).
96 Id., §3804(a)(1) (requiring that written notice be provided at least ninety days prior to the commencement of
negotiations).
593
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modify an existing agreement.97 Six months prior to signing an agreement, the President must “send a report to
Congress . . . that lays out what he plans to do with respect to (U.S.) trade laws.” 98 At that time, Congress reviews the
proposed agreement. The Trade Act of 2002 “provides for a resolution process where Congress can specifically find
that the proposed changes are ‘inconsistent’ with the negotiating objectives.” 99
In defending the complexity of the Trade Act of 2002, Congress points out that “the negotiating objectives and
procedures . . . represent a very careful substantive and political balance on some very complex and difficult issues
such as investment, labor and the environment, and the relationship between Congress and the Executive branch
during international trade negotiations.”100 Without doubt, the Act ultimately places much more stringent limitations
on the President’s ability to negotiate effectively with foreign nations than previous fast-track legislation did. 101
Given this slice of U.S. history showing the allocation of power over international trade agreement negotiations
between the executive and Congress in U.S. jurisdiction, it will be turning somersaults with history to contend
that the President is the sole organ for external relations. The “sole organ” remark in Curtiss-Wrightsimply does
not apply to the negotiation of international trade agreements in the U.S. where Congress is allowed, at the very
least, to indirectly participate in trade negotiations through the
_______________
97 Id., §3804(a)(1).
98 Supra note 94, citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (referring to
§3804[a][3]).
99 Id., citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (setting limitations on trade
authorities procedures Trade Act of 2002 §3805[b]).
100 Id., citing 148 Cong. Rec. S9107 (daily ed. Sept. 24, 2002) (statement of Sen. Grassley).
594
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setting of statutory limits to negotiating objectives and procedures, and to almost directly negotiate through the
Congressional Oversight Group.
Let me now discuss the allocation of power over international trade agreements between the Executive and
Congress in Philippine jurisdiction.
Negotiation of trade agreements: B.

the question of power allocation between
the Executive and Congress in Philippine jurisdiction
In their Reply, petitioners refute respondents’ contention that the President is the sole organ of the nation in its
external relations and has exclusive authority in treaty negotiation by asserting that Congress has the power to
legislate on matters dealing with foreign trade; hence, they should have access to the subject JPEPA documents.
Specifically, as aforementioned, petitioners as members of the House of Representatives point to Article VI,
Section 28 (2) of the 1987 Constitution, as basis of their power over foreign trade. It provides, viz.:
The 28 (2). “Sec. Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it 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.” (emphasis supplied)
They contend that, pursuant to this provision, the Executive’s authority to enter into international trade agreements
is a legislative power delegated to the President through Sections 401 and 402 of Presidential Decree No. 1464 or
the Tariff and Customs Code of the Philippines, viz.:
Flexible Clause. 401. “Sec.—
In the interest of national economy, general welfare and/or national security, and subject to the limitations
herein pre- a.595
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scribed, the President, upon recommendation of the National Economic and Development Authority
(hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing
protective rates of import duty (including any necessary change in classification). The existing rates
may be increased or decreased to any level, in one or several stages but in no case shall the increased rate
of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2) to establish
import quota or to ban imports of any commodity, as may be necessary; and (3) to impose an
additional duty on all imports not exceeding ten (10%) percent ad valorem whenever necessary;
x x x x x x x x x
The power of the President to increase or decrease rates of import duty c. within the limits
fixed in subsection “a” shall include the authority to modify the form of duty. In modifying the form of
duty, the corresponding ad valorem or specific equivalents of the duty with respect to imports from the
principal competing foreign country for the most recent representative period shall be used as bases.
x x x x x x x x x
Promotion of Foreign Trade. 402. Sec.—
For the purpose of expanding foreign markets for Philippine products as a means of assistance in the
economic development of the country, in overcoming domestic unemployment, in increasing the
purchasing power of the Philippine peso, and in establishing and maintaining better relations between the
Philippines and other countries, a. the President, is authorized from time to time:
To enter into trade agreements with foreign governments or instrumentalities thereof; and (1)
To modify import duties (2) (including any necessary change in classification) and other import
restrictions, as are required or appropriate to carry out and promote foreign trade with other
countries:. . .
The duties and other import restrictions as modified in subsection “a” above, shall apply to
articles which are the growth, produce or manufacture of the specific country, whether imported
directly or indirectly, with which the Philippines has entered into a trade agreement: x x x b.596

ANNOTATED
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Nothing in this section shall be construed to give any authority to cancel or reduce in any
manner any of the indebtedness of any foreign country to the Philippines or any claim of the
Philippines against any foreign country. c.
Before any trade agreement is concluded with any foreign government or instrumentality
thereof, reasonable public notice of the intention to negotiate an agreement with such government
or instrumentality shall be given in order that any interested person may have an opportunity to
present his views to the Commission d. which shall seek information and advice from the Department
of Agriculture, Department of Natural Resources, Department of Trade and Industry, Department of
Tourism, the Central Bank of the Philippines, the Department of Foreign Affairs, the Board of
Investments and from such other sources as it may deem appropriate.” (emphasis supplied)
102
Indeed, it is indubitable that Article VI, Section 28 (2) of the 1987 Constitution, vests Congress with power
over foreign trade, at least with respect to the fixing of tariff rates, import and export quotas, tonnage and
wharfage dues and other duties and imposts, similar to the power of Congress under the U.S.
Constitution. This grant of power to the Philippine Congress is not new in the 1987 Constitution. The 1935
Constitution, in almost similar terms, provides for the same power under Article VI, Section 22(2), viz.:
The Congress may 22(2). “Sec. by law authorize the President, subject to such limitations and
restrictions as it may impose to fix, within specified limits, tariff rates, import and export quotas, and
tonnage and wharfage dues.” (emphasis supplied)
103
_______________
102 §§401-402, Tariff and Customs Code of the Philippines, Presidential Decree No. 1464, promulgated June 11,
1978, amending Republic Act No. 1937, An Act to Revise and Codify the Tariff and Customs Laws of the Philippines,
enacted on June 22, 1957.
103 Congress authorized the President to enter into foreign trade agreements and to impose and regulate duties and
other im-
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Pursuant to this provision, Congress enacted Republic Act. No. 1937, entitled, “An Act to Revise and Codify the
Tariff and Customs Laws of the Philippines,” in 1957. Section 402 of the Act is the precursor of Section 402 of the
Tariff and Customs Code of the Philippines of 1978, 104which petitioners cite. In almost identical words, these
sections provide for the authority of the President to “enter into trade agreements with foreign governments or
instrumentalities thereof.”105 Section
_______________
port restrictions, under Rep. Act No. 1189, entitled “An Act Authorizing the President of the Republic of the Philippines to
Enter into Trade Agreements with Other Countries for a Limited Period and for Other Purposes,” enacted on June 20,
1954; and Rep. Act. No. 1937, entitled “An Act to Revise and Codify the Tariff and Customs Laws of the Philippines,”
enacted on June 22, 1957.
104 Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides, viz.:
WHEREAS, the Tariff and Customs Code of the Philippines known as Republic Act No. 1937 has been
amended by several Presidential Decrees dating back to the year 1972;
x x x x x x x x x
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, by virtue of
the powers in me vested by the Constitution, do hereby order and decree as follows:
1. SectionCodification of all Tariff and Customs Laws.—All tariff and customs laws embodied in the present
Tariff and Customs Code and various laws, presidential decrees and executive orders including new amendments
thereto made in this Decree, are hereby consolidated into a single Code to be known as theTariff and Customs
Code of 1978 which shall form an integral part of this Decree. (emphasis supplied)
105 §402, Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides for the authority of the President
to enter into trade agreements, viz.:
Sec. 402. Promotion of Foreign Trade.—
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401 of both the Tariff and Customs Code of 1978 and Republic Act No. 1937 also provide for the power of the
President to, among others, increase or reduce rates of import duty.106
_______________
For the purpose of expanding foreign markets for Philippine products as a means of assistance in the economic
development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the
Philippine peso, and in establishing and maintaining better relations between the Philippines and other countries,
a. the President, is authorized from time to time:
(1) To enter into trade agreements with foreign governments or instrumentalities thereof; (emphasis
supplied)
§402, Rep. Act. No. 1937, provides for the authority of the President to enter into trade agreements, viz.:
Sec. 402. Promotion of Foreign Trade
For the purpose of expanding foreign markets for Philippine products as a means of assisting in the economic
development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the
Philippine peso, and in establishing and maintaining better relationship between the Philippines and other countries,
the President, upon investigation by the Commission and a. recommendation of the National Economic
Council, is authorized from time to time:
(1) To enter into trade agreements with foreign governments or instrumentalities thereof; (emphasis
supplied)
106 §401, Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides, viz.:
401. Sec. Flexible Clause.
In the interest of national economy, general welfare and/or national security, and subject to the limitations
herein prescribed, the President, upon recommendation of the National Economic and Development Authority
(hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing protective
rates of import duty (including any necessary change in classification).
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The provision in Article VI, Section 22(2) of the 1935 Constitution—to authorize the President, by law, to fix,
within specified limits, tariff rates, import and export quotas, and tonnage and wharfage dues—was inspired by a
desire to enable the nation, through the President, to carry out a unified national economic program and to
administer the laws of the country to the end that its economic interests would be adequately protected. 107 This
intention to implement a unified national economic program was made explicit in the 1987 Constitution with the
addition of the phrase “within the framework of the national development program of the government,” upon motion
of Commissioner Christian Monsod. He explained the rationale for adding the phrase, viz.:
“The reason I am proposing this insertion is that an economic program has to be internally consistent.
While it is directory to the President—and it says “within specified limits” on line 2—there are
_______________
The existing rates may be increased or decreased to any level, in one or several stages but in no case shall the increased
rate of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2) to establish import quota
or to ban imports of any commodity, as may be necessary; and (3) to impose an additional duty on all importsnot
exceeding ten (10%) percent ad valorem whenever necessary; (emphasis supplied)
§401, Rep. Act. No. 1937, provides, viz.:

Sec. 401. Flexible Clause.
The President, upon investigation by the Commission and recommendation of the National Economic Council, is
hereby empowered to reduce by not more than fifty per cent or to increase by not more than five times the rates of import
duty expressly fixed by statute (including any necessary change in classification) when in his judgment such modification
in the rates of import duty is necessary in the interest of national economy, general welfare and/or national defense.
(emphasis supplied)
107 Aruego, J., The Framing of the Philippine Constitution (1936), Vol. 1, p. 388.
600

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situations where the limits prescribed to the President might, in fact be distortive of the economic
program.
x x x x x x x x x
We are not taking away any power from Congress. We are just saying that as a frame of reference,
the authority and the limits prescribed should be consistent with the economic program of
government which the legislature itself approves.” (emphasis supplied)
108
In sum, while provision was made for granting authority to the President with respect to the fixing of tariffs,
import and export quotas, and tonnage and wharfage dues, the power of Congress over foreign trade, and its
authority to delegate the same to the President by law, has consistently been constitutionally
recognized.109Even Curtiss-Wright, which respondents and the ponencia rely on, make a qualification that the
foreign relations power of the President, “like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution.” 110Congress’ power over foreign trade is one
such provision that must be considered in interpreting the treaty-making power of the President.
Moreover, while Curtiss-Wright admonished that “. . . if, in the maintenance of our international relations,
embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional
legislation
_______________
108 2 Records of the Constitutional Commission, p. 191.

109 The 1973 Constitution similarly provides in Article VIII, Sec. 17(1), viz.:
The National Assembly may by law authorize the Prime Minister to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts. 17(1). Sec.
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which is to be made effective through negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved,” 111 the 1987 Constitution itself, reiterating the 1935 and the 1973 Constitutions,
provides that Congress may, by law, authorize the President to fix tariff rates, import and export quotas, tonnage
and wharfage dues within specified limits, and subject to such limitations and restrictions as Congress may
impose. One cannot simply turn a blind eye on Congress’ foreign trade power granted by the Constitution in
interpreting the power of the Executive to negotiate international trade agreements.
Turning to the case at bar, Congress undoubtedly has power over the subject matter of the JPEPA,112as this
agreement touches on the fixing of “tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts.” Congress can, in fact, revoke or amend the power of the President to fix these as authorized
by law or the Tariff and Customs Code of 1978. Congress can legislate and conduct an inquiry in aid of
legislation on this subject matter, as it did pursuant to House Resolution No. 551. The purpose of the legislative
inquiry in which the subject JPEPA documents are needed is to aid legislation, which is different from the
purpose of the negotiations conducted by the Executive, which is to conclude a treaty. Exercised within their
proper limits, the power of the House of Representatives to conduct a legislative inquiry in aid of legislation and the
power of the executive to negotiate a treaty should not collide with each other.
_______________
111 Id.
112 See Comment, p. 2. The JPEPA is a comprehensive bilateral free trade agreement (FTA). FTAs cover both tariff
and non-tariff barriers.
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It is worth noting that petitioner members of the House of Representatives are not seeking to directly
participate in the negotiation of the JPEPA, nor are they indirectly interfering with the Executive’s negotiation of
the JPEPA. They seek access to the subject JPEPA documents for purposes of their inquiry, in aid of legislation, on
the forging of bilateral trade and investment agreements with minimal public scrutiny and debate, as evinced in the
title of House Resolution No. 551, “Directing the Special Committee on Globalization to Conduct an Urgent
Inquiry in Aid of Legislation on Bilateral Trade and Investment Agreements that Government Has Been
Forging, with Far Reaching Impact on People’s Lives and the Constitution But with Very Little Public
Scrutiny and Debate.”113 In relation to this, the ponencia states, viz.:
“Whether it can accurately be said that the Filipino people were not involved in the JPEPA
negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had
presented documents purporting to show that public consultations were conducted on the JPEPA.
Parenthetically, petitioners consider these “alleged consultations” as “woefully selective and
inadequate.” 114
Precisely, the inquiry in aid of legislation under House Resolution No. 551 seeks to investigate the sufficiency of
public scrutiny and debate on the JPEPA, considering its expansiveness, which is well within the foreign trade
power of Congress. At this point, it is in fact impossible for petitioners to interfere with the JPEPA negotiations,
whether directly or indirectly, as the negotiations have already been concluded. Be that as it may, the earlier
discussion on the allocation of international trade powers between the Executive and Congress in U.S. jurisdiction
has shown that it is not anathema to the preservation of the treaty-making powers of the President
_______________
113 Id., at p. 19; see also Annex “C.”

114 Ponencia.
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for Congress to indirectly participate in trade agreement negotiations.
Let us now proceed to respondents’ argument that the subject JPEPA documents are covered by the diplomatic
secrets privilege and should therefore be withheld from Congress. In so proceeding, it is important to bear in mind
the interdependence of the power of Congress over foreign trade and the power of the executive over treaty
negotiations.
The power of Congress to conduct inquiry C.

in aid of legislation on foreign trade
vis-à-vis executive privilege
In Senate v. Ermita,115 the Court defined “executive privilege” as the right of the President and high-level
executive branch officials to withhold information from Congress, the courts, and the public.
In the U.S., it is recognized that there are at least four kinds of executive privilege: (1) military and state secrets,
(2) presidential communications, (3) deliberative process, and (4) law enforcement privileges. 116 In the case at bar,
respondents invoke the state secrets privilege covering diplomatic or foreign relations and the deliberative process
privilege. Let me first take up the diplomatic secrets privilege.
1. Diplomatic secrets privilege
In Almonte v. Vasquez,117 the Court recognized a common law governmental privilege against disclosure, with
respect to
_______________
115 G.R. No. 169777, April 20, 2006, 488 SCRA 1, 45.

116 Iraola, R. “Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal
Criminal Investigations and Prosecutions,” 87 Iowa Law Review 1559, 1571 (2002).
117 G.R. No. 95367, May 23, 1995, 244 SCRA 286.
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state secrets bearing on diplomatic matters. 118 In Chavez v. PCGG,119 the Court also recognized the confidentiality of
information on inter-government exchanges prior to the conclusion of treaties and executive agreements subject to
reasonable safeguards on the national interest. 120 It also reiterated the privilege against disclosure of state secrets
bearing on diplomatic matters, as held in Almonte.Citing Chavez, Senate v. Ermita also acknowledged the states
secrets privilege bearing on diplomatic matters. In PMPF v. Manglapus, the Court upheld the confidentiality of
treaty negotiations. In that case, petitioners sought to compel the representatives of the President in the
then ongoing negotiations of the RP-U.S. Military Bases Agreement to give them access to the negotiations, to
treaty items already agreed upon, and to the R.P. and U.S. positions on items that were still being contested.
In determining the applicability of the diplomatic secrets privilege to the case at bar, I reiterate the primordial
principle in Senate v. Ermita that a claim of executive privilege may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Thus, even while Almonte and Senate v. Ermitaboth
recognized the state secrets privilege over diplomatic matters, and Chavez and PMPF v. Manglapus both
acknowledged the confidentiality of inter-government exchanges during treaty negotiations, the validity of the
claim of the diplomatic secrets privilege over the subject JPEPA documents shall be examined under the particular
circumstances of the case at bar. I especially take note of the fact that unlike PMPF v. Manglapus, which
involved a request for access to information during negotiations of a military
_______________
118 Id., citing 10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4 and 7, pp.
427-29, 434
119 G.R. No. 130716, December 9, 1998, 299 SCRA 744.
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treaty, the case at bar involves a request for information after the conclusion of negotiations of an international
trade agreement. Bearing this context in mind, let me now delve into the merits of the invocation of executive
privilege.
Almonte, Chavez, Senate v. Ermita, and PMPF v. Manglapus did not discuss the manner of invoking the
diplomatic secrets privilege. For the proper invocation of this privilege, U.S. v. Reynolds121 is instructive. This case
involved the military secrets privilege, which can be analogized to the diplomatic secrets privilege, insofar as they
are both based on the nature and the content of the information withheld. I submit that we should follow the
procedure laid down in Reynolds to determine whether the diplomatic secrets privilege is properly invoked, viz.:
“The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.
x x x x x x x x x
It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military matters which, in the interest of national
security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and
the court should not jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers.” (emphasis supplied) (footnotes
122
omitted)
_______________
121 345 U.S. 1 (1953).

122 Id., at pp. 7-8, 10.
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In the case at bar, the reasons for nondisclosure of the subject JPEPA documents are stated in the 23 June 2005
letter of respondent Secretary Ermita to Congressman Teves, Chairperson of the House Special Committee on
Globalization, viz.:
“Dear Congressman Teves,
x x x x x x x x x
In its letter dated 15 June 2005 (copy enclosed), DFA explains that the Committee’s request to be
furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed
Agreement has been a work in progress for about three years. A copy of the draft JPEPA will
however be forwarded to the Committee as soon as the text thereof is settled and complete. (emphasis
supplied)
In the meantime, DFA submits copies of the following documents:
 Joint Statement on the JPEPA issued in December 2002

 JPEPA Joint Coordinating Team Report dated December 2003
 Joint Announcement of the Philippine President and the Japanese Prime Minister issued in
December 2003
 Joint Press Statement on the JPEPA issued in November 2004
x x x x x x x x x
For your information.
Very truly yours,
(Signed)
Eduardo R. Ermita
Executive Secretary” 123
Respondents’ Comment further warned of the danger of premature disclosure of the subject JPEPA
documents, viz.:
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123 Petition, Annex “I.”

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“. . . At the time when the Committee was requesting the copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain
and subject to change. Considering the status and nature of such documents then and now, these
are evidently covered by executive privilege . . .
Practical and strategic considerations likewise counsel against the disclosure of the “rolling
texts” which may undergo radical change or portions of which may be totally abandoned.
Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must
be allowed to explore alternatives in the course of the negotiations . . .” 124
The reasons cited by respondents for refusing to furnish petitioners the subject JPEPA documents demonstrate
that these documents contain matters that should not be disclosed, lest the ongoing negotiations be hampered. As
respondents further explain in their Comment, if premature disclosure is made while negotiations are ongoing, the
Philippine panel and the President would be “hampered and embarrassed by criticisms or comments from persons
with inadequate knowledge of the nuances of treaty negotiations or worse by publicity seekers or idle kibitzers.” 125
Without ruling on the confidentiality of the subject JPEPA documents during negotiations (as this is no longer in
issue), I submit that the reasons provided by respondents for invoking the diplomatic secrets privilege while
the JPEPA negotiations were ongoing no longer hold now that the negotiations have been concluded. That
respondents were claiming confidentiality of the subject JPEPA documents during—not after—negotiations and
providing reasons therefor is indubitable. The 23 June 2005 letter of respondent Secretary Ermita to Congressman
Teves states that the “proposed Agreement has been a work in progress
_______________
124 Comment, p. 21.
125 Id., at p. 23.
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for about three years.” Likewise, respondents’ Comment states that “(a)t the time when the Committee was
requesting the copies of such documents, the negotiations were ongoing as they are still now.” Both statements
show that the subject JPEPA documents were being withheld from petitioners during and not after negotiations,
and that the reasons provided for withholding them refer to the dangers of disclosure while negotiations are
ongoing and not after they have been concluded.
In fact, respondent Secretary Ermita’s 23 June 2005 letter states that a “copy of the draft JPEPA” as soon as
“the text thereof is settled and complete” would be forwarded to the Committee, which is precisely one of the
subject JPEPA documents, i.e., the final text of the JPEPA prior to its signing by the President.Similarly, in his
letter dated 2 November 2005, respondent Undersecretary Aquino replied that the Committee would be provided
the latest draft of the agreement “once the negotiations are completed and as soon as a thorough legal review of
the proposed agreement has been conducted.”126 Both letters of Secretary Ermita and Undersecretary Aquino refer to
the draft texts of the JPEPA that they would provide to the Committee once the negotiations and text are
completed, and not to the final text of the JPEPA after it has been signed by the President. The
discussion infra will show that in the case of the North American Free Trade Agreement (NAFTA), the complete
text of the agreement was released prior to its signing by the Presidents of the U.S., Canada and Mexico.
Likewise, draft texts of the Free Trade Area of the Americas (FTAA) have been made accessible to the public. It
is not a timeless absolute in foreign relations that the text of an international trade agreement prior to its signing by
the President should not be made public.
_______________
126 Id., at p. 28, Annex “P.”

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For a claim of diplomatic secrets privilege to succeed, it is incumbent upon respondents to satisfy the Court
that the disclosure of the subject JPEPA documents after the negotiations have been concluded would prejudice
our national interest, and that they should therefore be cloaked by the diplomatic secrets privilege. It is the
task of the Executive to show the Court the reason for the privilege in the context in which it is invoked, as
required by Senate v. Ermita, just as the U.S. government did in Reynolds.127 Otherwise, the Court, which has the
duty to determine with finality whether the circumstances are appropriate for a claim of privilege, 128will not have any
basis for upholding or rejecting respondents’ invocation of the privilege. The requirement to show the reason for the
privilege is especially important in the case at bar, considering that the subject JPEPA documents are part of trade
agreement negotiations, which involve the interdependent powers of the Executive over treaty negotiations
and the legislature over foreign trade, as recognized in both Philippine and U.S. jurisdictions. Upon the
Executive’s showing of the
_______________
127 In Reynolds, the Secretary of the Air Force filed a formal “Claim of Privilege” and objected to the production of
the document “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly
secret mission of the Air Force.” The Judge Advocate General of the U.S. Air Force also filed an affidavit, which claimed
that the demanded material could not be furnished “without seriously hampering national security, flying safety and the
development of highly technical and secret military equipment.” On the record before the trial court, it appeared that the
accident that gave rise to the case occurred to a military plane that had gone aloft to test secret electronic equipment.
The Reynolds Court found that on the basis of all the circumstances of the case before it, there was reasonable danger that
the accident investigation report would contain references to the secret electronic equipment that was the primary concern
of the mission, which would be exposed if the investigation report for the accident was disclosed.
128 345 U.S. 1, 8 (1953).
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reason and circumstances for invoking the diplomatic secrets privilege, the Court can then consider whether the
application of the privilege to the information or document in dispute is warranted. As the Executive is given the
opportunity to show the applicability of the privilege, there is a safeguard for protecting what should rightfully be
considered privileged information to uphold national interest.
With respondents’ failure to provide reasons for claiming the diplomatic secrets privilege after the conclusion
of negotiations, the inevitable conclusion is that respondents cannot withhold the subject JPEPA documents.
The contentions in the Concurring Opinion of Justice Carpio that a State may wish to keep its offers
“confidential even after the signing of the treaty because it plans to negotiate similar treaties with other countries
and it does not want its negotiating positions known beforehand by such countries,” and that “(i)f the Philippines
does not respect the confidentiality of the offers and counter-offers of its negotiating partner State, then other
countries will be reluctant to negotiate in a candid and frank manner with the Philippines” 129 are speculative and
matters for respondents to show the Court. The same holds true as regards the assertion in the Separate Opinion
of Justice Tinga that “with respect to the subject treaty, the Government of the Philippines should expectedly heed
Japan’s normal interest in preserving the confidentiality of the treaty negotiations and conduct itself accordingly in
the same manner that our Government expects the Japanese Government to observe the protocol of
confidentiality.”130
Respondents having failed in shielding the subject JPEPA documents with the diplomatic secrets privilege, let
us now proceed to determine whether they can keep these documents secret under the deliberative process
privilege, which is a distinct kind of executive privilege. The Separate Opin-
_______________
129 Concurring Opinion of Justice Antonio T. Carpio.

130 Separate Opinion of Justice Dante O. Tinga.
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ion of Justice Tinga asserts, however, that while there is a distinction between the diplomatic secrets privilege and
the deliberative process privilege, “they should be jointly considered if the question at hand, as in this case, involves
such diplomatic correspondences related to treaty negotiations . . . Thus, it would not be enough to consider the
question of privilege from only one of these two perspectives as both species of privilege should be ultimately
weighed and applied in conjunction with each other.”
Indeed, the diplomatic character of the JPEPA deliberations or negotiations and the subject JPEPA documents
was considered in determining the applicability of the diplomatic secrets privilege in the above discussion. But as
respondents have failed in protecting the subject JPEPA documents with this kind of privilege that considers the
diplomatic character of negotiations, the next question to consider is whether another kind of privilege—that does
not hinge on the diplomatic nature of negotiations, but on the deliberative status of information alone—can shield
the subject JPEPA documents.
2. Deliberative process privilege

The “deliberative process privilege” was not literally invoked in the 23 June 2005 letter of respondent
Secretary Ermita or in respondents’ Comment. Nevertheless, Secretary Ermita’s statement that “the Committee’s
request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed
Agreement has been a work in progress for about three years, (a) copy of the draft JPEPA will however be
forwarded to the Committee as soon as the text thereof is settled and complete,” and respondents’ afore-quoted
assertion of danger of premature disclosure131 in their Comment show reliance on the deliberative process privilege.
_______________
131 “. . . At the time when the Committee was requesting the copies of such documents, the negotiations were ongoing
as they are
612
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In the U.S., it is settled jurisprudence that the deliberative process privilege justifies the government’s
withholding of documents and other materials that would reveal “advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are formulated.”132 In
1958, the privilege was first recognized in a U.S. federal case, Kaiser Aluminum Chemical Corp. v. United
States,133 in which the term “executive privilege” was also originally used.
Kaiser was a suit filed against the U.S. in the Federal Court of Claims. Plaintiff Kaiser sought documents from
the General Services Administration in the context of an action for breach of the most favored purchaser clause of a
contract for the sale of war aluminum plants to plaintiff. The Court of Claims held that the production of advisory
opinion on intra-office policy in relation to the sale of aluminum plants to plaintiff and to another entity was
contrary to public interest; thus, the U.S. must be allowed to claim the executive privilege of nondisclosure. The
Court sustained the following justification of the government for withholding a document:
_______________
still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of
such documents then and now, these are evidently covered by executive privilege . . .
. . . Practical and strategic considerations likewise counsel against the disclosure of the “rolling texts” which may
undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the
negotiations . . .” Comment, p. 21.
132 In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40
F.R.D. 318, 324 (D.D.C.1966), aff’d, 384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35
L.Ed.2d 119 (1973).
133 157 F. Supp. 939 (Ct. Cl. 1958).
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“The document . . . contains opinions that were rendered to the Liquidator of War Assets by a member
of his staff concerning a proposed sale of aluminum plants. Those opinions do not necessarily reflect
the views of, or represent the position ultimately taken by, the Liquidator of War Assets. A
disclosure of the contents of documents of this nature would tend to discourage the staffs of
Government agencies preparing such papers from giving complete and candid advice and would
thereby impede effective administration of the functions of such agencies.” (emphasis supplied)
134
Thereupon, the Court etched out the classic justificationof the deliberative process privilege,135 viz.:
“Free and open comments on the advantages and disadvantages of a proposed course of
governmental management would be adversely affected if the civil servant or executive assistant were
compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the
responsible individual with power to decide and act.” (emphasis supplied)
136
The Court also threw in public policy and public interest as bases for the deliberative process privilege, viz.:
“. . . Government from its nature has necessarily been granted a certain freedom from control beyond that
given the citizen . . . There is a public policy involved in this claim of privilege for this advisory
opinion—the policy of open, frank discussion between subordinate and chief concerning
administrative action. 137
x x x x x x x x x
_______________
134 Id., Note 4.
135 Kennedy, M., “Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege,” 99 Northwestern
University Law Review (hereafter Kennedy) 1769 (2005).
136 157 F. Supp. 939 (Ct. Cl. 1958), pp. 945-946.
137 Id., at p. 946.
614

ANNOTATED
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. . . Viewing this claim of privilege for the intra-agency advisory opinion in its entirety, we determine that
the Government’s claim of privilege for the document is well-founded. It would be definitely contrary to
the public interest in our view for such an advisory opinion on governmental course of action to be
produced by the United States under the coercion of a bar against production of any evidence in defense
of this suit for contract damages.” (emphasis supplied)
138
The Court also held that the judicial branch, and not the executive branch, is the final arbiter of whether the
privilege should apply, contrary to the government’s assertion that the head of the relevant agency should be
allowed to assert the privilege unilaterally.139
Courts and scholars have identified three purposes140of the privilege: (1) to protect candid discussions within
an agency;141 (2) to prevent public confusion from premature disclosure of agency opinions before the agency
has established a final policy;142 and (3) to protect against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales for a course of action, when these were not in fact
the ultimate reasons for the agency’s action.143
Two requisites are essential for a valid assertion of the privilege: the material must be pre-decisional and delib-
_______________
138 Id., at p. 947.
139 Id., at pp. 947-948.
140 Kennedy, supra note 135 at p. 1769; see also Iraola, R. “Congressional Oversight, Executive Privilege, and
Requests for Information Relating to Federal Criminal Investigations and Prosecutions,” Iowa Law Review, vol. 87, no.
5, August 2002, pp. 1559 and 1578, citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995), aff’d, 76 F.3d
1232 (D.C. Cir. 1996).
141 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).
142 Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997).
143 Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980).
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erative. To be “pre-decisional,” a document must be generated before the adoption of an agency policy.To be
“deliberative,” it must reflect the give-and-take of the consultative process. 144 Both requirements stem from the
privilege’s “ultimate purpose (which) . . . is to prevent injury to the quality of agency decisions” by allowing
government officials freedom to debate alternative approaches in private. 145 The deliberative process privilege does
not shield documents that simply state or explain a decision the government has already made; nor does the
privilege cover material that is purely factual, unless the material is so inextricably intertwined with the deliberative
sections of documents that its disclosure would inevitably reveal the government’s deliberations. 146 There must also
be a formal assertion of the privilege by the head of the department in control of the information based on his
actual personal consideration of the matter and an explanation as to why the information sought falls within the
scope of the privilege.147
Once the agency has shown that the material is both pre-decisional and deliberative, the material enjoys
a qualified privilege that may be overcome by a sufficient showing of need, as held in In re Sealed Case
(Espy).148 In general, courts balance the need for information against the harm that may result from
disclosure. Thus, “each time (the deliberative process privilege) is asserted, the district court must undertake a fresh
balancing of the competing interests,” taking into account factors such as “the relevance of the evidence,” “the
availability of other evidence,”
_______________
144 Id.
145 In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 736, citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132
(1975).
146 Id., at p. 736.
147 Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984).
148 In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
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“the seriousness of the litigation,” “the role of the government,” and the “possibility of future timidity by
government employees.”149 These rulings were made in the context of the refusal of the White House to submit some
documents sought by a grand jury subpoena.150
In our jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the delibera-
_______________
149 Id., at pp. 737-38; see also In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634
(D.C. Cir. 1992) (discussing how, in balancing competing interests, the court should consider a number of factors such as
the relevance of the evidence, seriousness of the litigation, and availability of other evidence); Jensen, K., “ The
Reasonable Government Official Test: A Proposal for the Treatment of Factual Information under the Federal
Deliberative Process Privilege,” 49 Duke L.J. 561, 578-579 (1999) (discussing and identifying the factors).
150 The In re Sealed Case (Espy) arose because of allegations that U.S. Secretary of Agriculture, Mike Espy, may
have improperly accepted gifts from individuals and organizations with business before the U.S. Department of
Agriculture. These allegations led to the appointment of an Independent Counsel, to investigate the allegations and to
prosecute any related violations of federal law that the Office of the Independent Counsel (OIC) reasonably believed had
occurred. The same allegations led the President of the United States to direct the White House Counsel to investigate
Espy’s conduct in order to advise the President on whether he should take executive action against Espy. The White House
publicly released a report on Espy produced by the White House Counsel. Subsequently, a grand jury issued the
subpoena duces tecum at issue in this case. The subpoena sought all documents on Espy and other subjects of the OIC’s
investigation that were “accumulated for, relating in any way to, or considered in any fashion, by those persons who were
consulted and/or contributed directly or indirectly to all drafts and/or versions” of the White House Counsel’s report. The
subpoena specifically requested notes of any meetings in the White House concerning Espy and of any conversations
between Espy or his counsel and White House employees. The White House produced several folders of documents, but
withheld some on the basis mostly of deliberative process privilege.
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tive process privilege. In the recent case Neri v. Senate Committees,151 the Court recognized the claim of the
presidential communications privilege, which is closely associated with the deliberative process privilege. 152 In In re
Sealed Case (Espy), the distinction between the two privileges was explained, viz.:
“Both are executive privileges designed to protect executive branch decision-making, but one
(deliberative process privilege) applies to decision-making of executive officials generally, the other
specifically to decision-making of the President. The presidential privilege is rooted in constitutional
separation of powers principles and the President’s unique constitutional role; the deliberative
process privilege is primarily a common law privilege. . . Consequently, congressional or judicial
negation of the presidential communications privilege is subject to greater scrutiny than denial of the
deliberative privilege . . . Unlike the deliberative process privilege (which covers only material that is
pre-decisional and deliberative), the presidential communications privilege applies to documents in
153
their entirety, and covers final and post-decisional materials as well as pre-
deliberative ones.” (emphasis supplied)
154
The distinction notwithstanding, there is no reason not to recognize in our jurisdiction the deliberative process
privilege, which has essentially the same purpose as the presidential
_______________
151 G.R. No. 180643, March 25, 2008, 549 SCRA 77.

152 With respect to deliberative process privilege, only pre-decisional and deliberative materials are covered; hence,
the agency must first show that the agency material sought is pre-decisional and deliberative for a qualified privilege to
attach. With respect to presidential communications privilege, the presidential communications must be made in the
performance of the President’s responsibilities of his office and in the process of shaping policies and making decisions.
Once this requisite is satisfied, a qualified privilege attaches to the presidential communication.
153 In re Sealed Case, 121 F.3d. at p. 737.
154 Id., at p. 745.
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communications privilege, except that it applies to executive officials in general.
Let us now determine whether the deliberative process privilege will shield from disclosure the following
JPEPA documents sought by petitioners: (1) the initial offers (of the Philippines and Japan) of the JPEPA, including
all pertinent attachments and annexes thereto; and (2) the final text of the JPEPA prior to the signing by the
President. The answer is in the negative.
It is my considered view that the subject JPEPA documents do not come within the purview of the kind of
information which the deliberative process privilege shields in order to promote frank and candid discussions and
protect executive branch decision-making of the Philippine government. The initial offers are not in the nature of
“advisory opinions, recommendations and deliberations”155 similar to those submitted by the subordinate to the
chief in a government agency, as in the seminal case of Kaiser. The initial offer of the Philippines is not a
document that offers alternative courses of action to an executive official to aid in the decision-making of the latter,
but is instead a proposal to another government, the Japanese government, to institute negotiations. The end in
view of these negotiations is not a decision or policy of the Philippine government, but a joint decision or agreement
between the Philippine and the Japanese governments.
Likewise, the final text of the JPEPA prior to signing by the President is not in the nature of an advice or
recommendation or deliberation by executive officials of the Philip-
_______________
155 In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40
F.R.D. 318, 324 (D.D.C.1966), aff’d,384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35
L.Ed.2d 119 (1973).
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pine government, as it is the handiwork of the Philippine and the Japanese negotiating panels working
together. The documents sought to be disclosed are not of the same nature as internal deliberations of the
Department of Trade and Industry or the Philippine negotiating panel in crafting and deciding the initial offer of the
Philippines or internal memoranda of Philippine government agencies to advise President Macapagal-Arroyo in her
decision to sign the JPEPA. Extending the mantle of protection of the deliberative process privilege to the
initial offers of the Philippines and of Japan and the final JPEPA text prior to signing by President
Macapagal-Arroyo will be tantamount to extending the protection of executive branch decision-making to the
executive branch not only of the Philippine government, but also of the Japanese government, which, in trade
agreement negotiations, represents an interest adverse to that of the Philippine government. As seen from the
rationale and history of the deliberative process privilege, this is not the intent of the deliberative process
privilege.156 Given the nature
_______________
156 This conclusion is in line with the ruling of the U.S. District Court of the District of Columbia in Center for
International Environmental Law (CIEL) v. Office of the United States Trade Representative (237 F. Supp. 2d 17) which
the ponencia discusses. However, CIEL was litigated under the Freedom of Information Act (FOIA) in the U.S. which
requires that information/communication should be “inter-agency” for it to come within the protection of the deliberative
process privilege. The FOIA does not have a counterpart in the Philippines. Instead, the above conclusion on the non-
application of the deliberative process privilege to the subject JPEPA documents was reached by going back to the
rationale and history of deliberative process privilege.
In CIEL, nonprofit groups monitoring international trade and environmental issues brought a Freedom of Information
Act (FOIA) suit against the Office of the United States Trade Representative, seeking information related to
the negotiation of the U.S.-Chile Free Trade Agreement. Under the FOIA, deliberative and pre-
620
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of the subject JPEPA documents, it is the diplomatic secrets privilege that can properly shield them upon sufficient
show-
_______________
decisional communications between and within agencies of the U.S. government are exempt from government duty
to disclose information. Accordingly, the U.S. District Court of the District of Columbia held that communications
between the U.S. and Chile, in the course of treaty negotiations, were not “inter-agency” within the meaning of
FOIA exemption and thus should be disclosed to the nonprofit groups seeking access to them.
The District Court explained its ruling, viz.:

For purposes of the inter-agency requirement, the Supreme Court has noted that the term “ ‘agency’ means
‘each authority of the Government of the United States,’ § 551(1), and ‘includes any executive department,
military department, Government corporation, Government controlled corporation, or other establishment in the
executive branch of the Government . . . , or any independent regulatory agency,’ § 522(f).” Klamath Water
Users, 532 U.S. at 9, 121 S.Ct. 1060. In general, this definition establishes that communications between agencies
and outside parties are not protected under Exemption 5 (deliberative process privilege) . . . See, e.g.,
Brownstein Zeidman & Schomer v. Dep’t of the Air Force, 781 F.Supp. 31, 35 (D.D.C.1991) (“While FOIA
exemption 5 does protect intra-governmental deliberations, it does not cover negotiations between the
government and outside parties.”); see also Mead Data Central, Inc. v. United States Dep’t of the Air Force, 566
F.2d at pp. 257-58 (policy objectives of Exemption 5 not applicable to negotiations between agency and outside
party).
. . . Chilean officials are not “enough like the agency’s own personnel to justify calling their communications
‘intra-agency.’ “ Klamath Water Users, 532 U.S. at 12, 121 S.Ct. 1060. Nor did the documents that Chile submitted
to USTR play “essentially the same part in [the] agency’s process of deliberation as documents prepared by agency
personnel might have done.” . . . It may be true, as defendants assert, that Chilean proposals and responses are
essential to USTR’s development of its own negotiating positions, but the role
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ing of reasons for their confidentiality. Hence, the invocation of deliberative process privilege to protect the subject
JPEPA documents must fail.
_______________
played by such documents is unmistakably different from the role of internally created documents; Chile
shares its positions not in order to advise or educate USTR but in order to promote its own interests. See Def.
Mem. at 22 (acknowledging that “Chile seeks to achieve its own objectives through the negotiations”). Nor does the
fact that USTR “needs to understand what is important to Chile in order to develop its own positions” confer inter-
agency status on these external documents. Def. Mem. at p. 21. ( 237 F. Supp. 2d 17, 25).
x x x x x x x x x
The decision in Ryan v. Dep’t of Justice, 617 F.2d 781, also is distinguishable. In Ryan, the court of appeals
held that communications produced by Senators in response to an agency questionnaire regarding nominating
procedures for judicial candidates fell within the narrow ambit of Exemption 5 (deliberative process privilege). The
court characterized the Senators as “temporary consultants” who were “solicited to give advice only for specific
projects.” . . . In the instant case, by contrast, the Chilean officials were not solicited for advice but rather
negotiated with and treated as adversaries openly seeking to advance their own interests . . . (237 F. Supp. 2d
17, 28). (emphasis supplied)
The District Court of the District of Columbia distinguished the CIEL case from Fulbright & Jaworski v. Dep’t. of
Treasury (545 F. Supp. 615 [D.D.C. 1982]), which also dealt with deliberative process privilege in relation to treaty
negotiations (and which the ponencia likewise discussed), viz.:
In that case (Fulbright & Jaworski), one of very few to consider Exemption 5 (deliberative process privilege) in
the context of foreign relations, individual notes taken by a United States negotiator during treaty discussions
with France were protected from release under Exemption 5. The court held that “releasing these snapshot
views of the negotiations would be comparable to releasing
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But this is not all. In Senate v. Ermita, the Court also required that executive privilege must be invoked by the
President, or the Executive Secretary “by order of the President,” unlike in U.S. jurisdiction where, as afore-
discussed, the formal assertion of the head of the department claiming the privilege suffices. 157 In the case at bar,
the Executive Secretary invoked both the deliberative process privilege and the diplomatic secrets privilege not “by
order of the President,” as his 23 June 2005 letter quoted above shows. Accordingly, the invocation of executive
privilege was not properly made and was therefore without legal effect.
Senate v. Ermita was decided on 20 April 2006 and became final and executory on 21 July 2006. Hence, it may
be argued that it cannot be used as a yardstick to measure whether respondent Secretary Ermita properly invoked
executive privilege in his 23 June 2005 letter. It must be noted, however, that the case at bar has been pending
decision even after the finality of Senate v. Ermita.During the time of its pendency, respondents failed to inform the
Court whether Executive Secretary Ermita’s position bore the imprimatur of the Chief Executive. The period of
nearly two years from the time Senate v. Ermitabecame final up to the present is
_______________
drafts of the treaty” and consequently would risk great harm to the negotiations process . . . Despite the
superficial similarity of context – the “give-and-take” of treaty negotiations—the difference is that the
negotiator’s notes at issue in Fulbright & Jaworski were clearly internal. The question of disclosure turned not
on the inter-agency requirement of Exemption 5 but on whether or not the documents were part of the agency’s pre-
decisional deliberative process . . . Judge Green’s discussion of the harm that could result from disclosure therefore
is irrelevant, since the documents at issue here are not inter-agency, and the Court does not reach the question
of deliberative process. (237 F. Supp. 2d 17, 29) (emphasis supplied)
157 U.S. v. Reynolds, 345 U.S. 1 (1953); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir.
1984).
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more than enough leeway for the respondents to comply with the requirement that executive privilege be invoked by
the President, or the Executive Secretary “by order of the President.” Contrary to the assertion of the ponencia,158the
Court would not be overly strict in exacting compliance with the Senate v. Ermita requirement, considering the two-
year margin the Court has afforded respondents.
Let us now determine whether the public’s constitutional right to information and participationcan be
trumped by a claim of executive privilege over the documents sought to be disclosed.
The context: the question of the right of access II.

of the petitioner private citizens to the subject JPEPA documents is raised in relation to international trade
agreement negotiations on the strength of a constitutional right to information and participation
The developing openness of trade agreement negotiations in U.S. jurisdiction A.
The waning of the exclusivity of executive power over negotiations of international trade agreements vis-à-
visCongressional power over foreign trade was accompanied by a developing openness to the public of
international trade agreement negotiations in U.S. jurisdiction.
Historically, the American public only had an indirect participation in the trade negotiation process. Public
involvement primarily centered on electing representatives who were responsible for shaping U.S. trade
policy.159From the
_______________
158 Ponencia.
159 Schoenborn, B., “Public Participation In Trade Negotiations: Open Agreements, Openly Arrived At?,” 4
Minnesota Journal of Global Trade 103 (1995). “As delegates, elected representatives act on their constituents’ behalf in
both foreign and domestic affairs. Interested private parties or organizations meet with their elected
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18th century until the early 1930s, U.S. international trade relations 160 were largely left to the interplay between
these public delegates in the legislative and the executive branches and similar officials in foreign nations. 161 But this
trend be-
_______________
officials to discuss U.S. foreign trade policy when current issues pertain to their particular businesses. Typically, these
occasions arise when issues are ‘intermestic.’ Intermestic issues are those that effect both domestic and international
policies. John W. Spanier & Eric M. Uslaner, American Foreign Policy Making and the Democratic Dilemmas 28 (1994).
Intermestic issues, such as trade and energy issues, attract increased interest group representation, articulation, and
influence. Often ‘so many groups have interests in the outcome of policies and see the stakes as so high that these groups
may control much of the policy process. Businesses, banks, agriculture and shipping interests, and labor organizations
have a natural interest in trade, foreign investment, and tariff issues.’” Id., at Note 10 (citations omitted).
160 Id. “For most of U.S. history, international trade relationships were considered a relatively minor area of
government activity. Generally, domestic issues are more important than foreign issues to Americans because the public
considers those issues that most closely affect daily life to be most important to them. According to the Gallup Poll, since
the late 1960s, Americans have consistently placed domestic issues far above foreign issues when considering the most
important problem facing the country. Harold W. Stanley & Richard G. Niemi, Vital Statistics on American Politics 164
(4th ed. 1994). In most years after 1972, over 80% of those surveyed chose a domestic issue over a foreign one. While
international trade most certainly affects life in the broad sense by creating new markets for goods and increasing the size
of the economy, many Americans do not see it as a pressing issue, central to the way in which they live their lives.” Id., at
Note 11 (citations omitted).
161 Id., citing John Day Larkin, Trade Agreements: A Study in Democratic Methods 122-28 (1940). “For example, the
Fordney-McCumber Act of 1922, though it delegated some congressional tariff-making powers to the President, still led to
increased tariffs because the President found himself under too much congressional scrutiny to act in the best interests of
the nation. Overall, when considering international trade agreements, most members of Con-
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gan to see changes during the Great Depression in the early 1930s and the enactment of the Trade Agreements
Act of 1934,162 under which regime the 1936 case Curtiss-Wright was decided.
As afore-discussed, the U.S. Congress passed the Reciprocal Trade Agreement Act of 1934 (the 1934 Act). As an
economic stimulus, the 1934 Act authorized the President to address economic stagnation by reducing tariffs on
foreign goods by as much as fifty percent. 163When the President took such an action, America’s trading partners
reciprocated by reducing tariffs placed on U.S. goods, thereby stimulating the U.S. economy. 164Confronted with the
Great Depression and the subsequent deterioration of the global economy, the 1934 Act called for a single,
strong voice to deal effectively with foreign nations. Thus, the President,
_______________
gress may be divided into two groups: those who are protectionist at all times and give interest groups whatever they need
to retain their tariffs; and those who do not, in principle, favor protectionism but feel they must not let their constituents
down while a tariff bill is pending. As a result, allowing legislative input into the process of enacting trade agreements led
only to increased tariffs with relatively few instances of tariff reductions. To avoid the evils of logrolling and partisan
politics, Congress enacted legislation establishing general policies to be carried out by the administration. This action was
the only way to lower tariffs “in the public interest without opening up a logrolling orgy.” Id., at Note 16 (citations
omitted).
162 Id., at pp. 105-06.

163 19 U.S.C. §1351(a)(2) (1934) (current version at 19 U.S.C. §1351 [1988]) (“No proclamation shall be made
increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the
dutiable and free lists.”).
164 Supra note 159 at p. 108. “From 1934 to 1939, the reciprocal trade agreements stimulated the domestic economy
enormously. Walter La Feber, The American Age 356 (1989). U.S. exports rose by nearly one billion dollars and the U.S.
favorable trade imbalance increased from one-half billion dollars to one billion dollars.” Id., at Note 21.
626
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with this Congressional mandate, became the chief American trade negotiator with complete and unrestricted
authority to enter into binding international trade agreements. 165
While the 1934 Act gave trading muscle to the President, it also created the first formal method of public
participation in the international trade negotiation process. Section 4 of the 1934 Act required “reasonable
public notice” of the President’s intention to enter into agreements with foreign states, 166 thereby giving American
citizens the opportunity to know with which foreign nations the U.S. government proposed to
negotiate.Pursuant to the 1934 Act, the President established the Trade Agreements Committee, which was
composed of high-ranking members of the executive branch. 167 The Trade Agreements Committee, commonly
known as the Committee for Reciprocity Information, conducted public hearings at which specific items up for
negotiation with a particular country would be discussed. 168 But with the Congress left almost completely outside the
trade negotiation process and agreements being concluded
_______________
165 Id.
166 As codified in 19 U.S.C. §1354 (1934), the 1934 Act provided:
Before any foreign trade agreement is concluded with any foreign government or instrumentality thereof under the
provisions of Part III of this title, reasonable public notice of the intention to negotiate an agreement with such government
or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the
President, or to such agency as the President may designate, under such rules and regulations as the President may
prescribe; and before concluding such agreement the President shall seek information and advice with respect thereto from
the United States Tariff Commission, the Departments of State, Agriculture, and Commerce and from such other sources
as he may deem appropriate. (current version at 19 U.S.C. §1354 [1988]).
167 Supra note 159 at 109, citing Larkin, J.D., Trade Agreements: A Study in Democratic Methods, 48-58 (1940).
168 Id., at p. 109, Note 24.
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and implemented in relative obscurity, the attention of Congress and the public turned more toward the pressing
domestic issues, at least until the dawn of the ‘70s.169
The Cold War and the lingering Vietnam War made international relations increasingly significant to the
general welfare of the U.S. By the mid-1970s, the post-World War II economic dominance of the U.S. began to
deteriorate.170 Under Japan’s lead, Asia began gaining economic strength, quickly joining Europe as a major global
industrial competitor to the U.S. At the same time, increased media coverage brought international trade issues
to the public’s attention171and moved the public to challenge the traditions, institutions, and authority of
government with respect to trade issues.
With the swell of public activism, the U.S. Congress re-analyzed its transfer of powers over international trade
issues. Thus, as afore-discussed, in 1974, after forty years of continuous presidential authority over international
_______________
169 Id., at pp. 111-112.

170 Id., at p. 112. “According to the Economic Report of the President, 1975 was the last year the United States
experienced a merchandise trade surplus (i.e., the value of exports was greater than the value of imports). Stanley &
Niemi, Vital Statistics on American Politics 370 (4th ed. 1994). Moreover, in 1974 and 1975, America’s gross domestic
and national products declined as the nation suffered a recession. Id., at p. 417.” Id., at Note 34.
171 “One issue that raised public awareness with regard to international trade was the oil embargo of 1973. The
Organization of Petroleum Exporting Countries (OPEC) agreed on reduced production levels that increased world prices.
This action was taken in retaliation for the U.S. support of Israel in the Arab-Israeli War. As a result of America’s
dependence on Middle-Eastern oil, prices skyrocketed and long lines at the gas pump led to a wave of economic insecurity
across America. See generally Ibrahim F.I. Shihata, The Case for the Arab Oil Embargo (1975) (discussing the history and
politics surrounding the 1973 Arab oil embargo).” Id., at Note 36.
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trade matters, Congress passed the Trade Act of 1974.172The Trade Act of 1974 increased the levels of public
involvement in international trade negotiations, far beyond the requirement of notice of a proposed trading
partner under the 1934 Act. The 1974 Act required international agreements to include provisions creating
domestic procedures through which interested public parties could participate in the international trade
process.173 It also required the President to seek information and advice from both private and public
sectors.174 For this purpose, it incorporated the use of advisory committees and included spontaneous opportunities
for acceptance of information from the public. 175 Thus, the 1974 Act, supplemented by several amendments passed
in 1979 and 1988, opened the door to unprecedented formal and direct public participation 176 in the negotiation
of international
_______________
172 Trade Act of 1974, 19 U.S.C. §§2101-2487 (Supp. V 1975) (current version at 19 U.S.C. §§2101-2487 [1988]).
With regard to the Act of 1974, Professors Jackson and Davey have stated that “[i]n many ways, the struggle of Congress
to regain some authority over international economic affairs was best manifested in the passage of the 1974 Trade Act . . .”
Jackson & Davey, Legal Problems of International Economic Relations 77 (2d ed. 1986).
173 19 U.S.C. §2155 (Supp. V 1975) (current version at 19 U.S.C. §2155 [1988]).
174 The president must seek information and advice on negotiating objectives, bargaining positions, the operation of a
trade agreement once entered into, and other matters arising in connection with the development, implementation, and
administration of U.S. trade policy. 19 U.S.C. §2155(a).
175 19 U.S.C. §2155(a)-(c).
176 Additionally, §2155 of the 1974 Act created the Advisory Council for Trade Policy and Negotiations (ACTPN).
That group was established as a permanent group to provide constant policy advice on matters such as negotiating
objectives, bargaining positions, and the operation of trade agreements. 19 U.S.C. §2155.
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trade agreements and contributed to a rekindled awareness of government activities and their impact on the public. 177
Towards the latter half of the 1980s, government leaders and trade experts again began to advocate reduced
trade barriers as an answer to economic difficulty. They became convinced that increased emphasis on free
global trade was the key to future economic prosperity. The idea of increasing the size and strength of the national
economy by reducing restrictions on foreign trade was the impetus behind trade agreements such as the 1993 North
American Free Trade Agreement (NAFTA)178 concluded among the U.S., Mexico and Canada. The launch of the
NAFTA and the completion of the World Trade Organization’s (WTO) Uruguay round in the mid-’90s swept in a
new era of unprecedented international collaboration on trade policy.179
In the 1990s, the changing nature of world politics and economics focused international issues on
economic well-being rather than on political and military dominance. Fearing environmental destruction and
increased unemployment, members of Congress, commentators, and special interest groups have used trade
agreements such as NAFTA and the mass media to heighten public awareness and participation in
international trade
_______________
Minnesota Journal of Global Trade 103, 113-114 (1995).
178 Id., at pp. 114-115. “As a result of a similar economic climate which, during the Great Depression, spurred the
passage of the 1934 Act, the Reagan and Bush Administrations initiated the concept of reducing barriers to trade between
Mexico, Canada, and the United States in order to increase the economies of all three nations involved. President Clinton
supported and Congress passed the North American Free Trade Agreement in December 1993.” Id., at Note 48.
179 Katt, Jr., W., “The New Paper Chase: Public Access to Trade Agreement Negotiating Documents,” 106 Columbia
Law Review 679, Note 2 (2006).
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relationships.180 The 1990s led the American public to realize that international trade issues had a direct impact
on their standard of living and way of life, 181thus fomenting public participation in international trade
negotiations. With the growing concern over the far-reaching implications of bilateral and multilateral international
trade agreements and the increased focus upon the processes by which they are negotiated, calls for greater openness
and public participation in their negotiation have come in many forms and from many corners, particularly in the
U.S. A central component of the demand for participation has been to gain access to negotiating documents
shared by the U.S. with other governments prior to the conclusion of a free trade agreement. 182
_______________
Minnesota Journal of Global Trade 103, 116 (1995). “James O. Goldsborough notes that the public is becoming more
engaged in U.S. foreign policy in the post-Cold War period. ‘The idea is that foreign and domestic policy are becoming
one, and that presidents no longer can treat foreign policy as their own privileged—and private—domain.’ James O.
Goldsborough, Whose View? Despite Heightened Public Interest in Foreign Policy, the President Must Prevail, San Diego
Union-Trib., Jun. 14, 1993, at B5. Goldsborough also states that the public will continue to demand a stronger voice in
international affairs.
In an era of free trade with Mexico, fair trade with Japan and environmental treaties that attempt to preserve the earth
for future generations, foreign policy has achieved a domestic content it has not had before. There is nothing ‘foreign’
about such issues. They have a direct impact on the quality of life of individuals.” Id., at Note 50.
181 Id., at p. 116. “‘(N)ow, for the first time, ordinary Americans are beginning to discover that national and
international trade decisions have critical relevance to their daily lives. And as they increasingly seek a greater voice ... the
trading game will never again be the same.’ Charles Lewis, The Treaty No One Could Read: How Lobbyists and Business
Quietly Forged NAFTA, Wash. Post, June 27, 1993, at C1.” Id., at Note 52.
182 Supra note 179.
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The 1990s saw a continuous expansion of public access to the international trade agreement process.Rather
than simply being left to point out failures in already existing agreements, individuals were now allowed to help
shape future agreements. In reemphasizing the open government mentality of the 1970s, the 1990s marked the
beginning of a new era in trade negotiations. Private individuals now played an important role in many areas
throughout the international trade agreement process. 183 The Trade Act of 2002 was then passed, enhancing
transparency through increased and more timely access to information regarding trade issues and activities
of international trade institutions; increased public access to meetings, proceedings, and submissions at the
World Trade Organization (WTO); and increased and more timely public access to all notifications and
supporting documentation by parties to the WTO.184
Public participation in international trade negotiations affects trade negotiations in two distinct ways. First, it
serves as a check on the power of elected and bureaucratic leaders by generating and limiting the issues that
require government action. Second, it provides those in positions of power and influence with specific, detailed
information upon which to base their decisions; for in the absence of public input, government officials risk
making decisions based on incomplete information, thereby compromising public policy.185
_______________
Minnesota Journal of Global Trade 103, 123 (1995).
Law Review (2006) 679, citing 19 U.S.C.A. §3802(b)(5).
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The public participates in trade negotiations in various ways. Individuals influence governmental action by
electing the President and members of Congress, joining special interest groups that lobby influential members of
the executive and the legislative branches, initiating litigation, serving on presidentially appointed advisory
committees, testifying at international trade commission hearings, and protesting individually or as a group.
But ultimately, the degree of public involvement in any area of government policy depends on the amount of
available access.186
Although the NAFTA negotiations have been criticized for being shrouded in much secrecy, the U.S.
government released on 6 September 1992, the most recent text of the NAFTA, prior to its signing by Canadian
Prime Minister Brian Mulroney, U.S. President George H.W. Bush and Mexican President Carlos Salinas on
October 7, 1992.187
The negotiation of the Free Trade Area of the Americas (FTAA) that began in 1995 has also shown a changing
landscape that allows for greater public participation in international trade negotiations. In their Santiago Summit in
1998, the heads of thirty-four Western Hemisphere states extended principles of participation explicitly to the
FTAA:
“The FTAA negotiating process will be transparent . . . in order to create the opportunities for the
full participation by all countries. We encourage all segments of civil society to participate in and
contribute to the process in a constructive manner, through our respective mechanisms of dialogue
and consultation and by presenting their views through the mechanism created in the FTAA negotiating
process.” 188
_______________
186 Id., at p. 122.
187 Gregory, M. “Environment, Sustainable Development, Public Participation and the NAFTA: A Retrospective,” 7
Journal of Environmental Law and Litigation (1992), 99, 101.
188 Dannenmaier, E., “Trade, Democracy, and the FTAA: Public Access to the Process of Constructing a Free Trade
Area of the Americas,” 27 Fordham International Law Journal 1066, 1078 (2004)
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The Santiago Declaration also includes a pledge to “promote the necessary actions for government institutions to
become more participatory structures.”189 (emphasis supplied) In the Quebec Summit in 2001, the heads of State
went even further and declared their commitment to “the full participation of all persons in the political, economic,
social and cultural life of our countries.” 190 They also addressed participation in the context of an FTAA and
committed to—
“Ensure the transparency of the negotiating process, including through publication of the
preliminary draft FTAA Agreement in the four official languages as soon as possible and
the dissemination of additional information on the progress of negotiations; [and to] Foster through
their respective national dialogue mechanisms and through appropriate FTAA mechanisms, a process
of increasing and sustained communication with civil society to ensure that it has a clear perception
of the development of the FTAA negotiating process; [and to] invite civil society to continue to
contribute to the FTAA process . . .” (emphasis supplied)
191
Thus, the Presidential summits, which have established both the impetus and the context for an FTAA, unmistakably
contemplate public access to the negotiating process, and the FTAA itself is a central part of that process. 192 In July
2001 came the first public release of the preliminary
_______________
citing Second Summit of the Americas: Declaration of Principles and Plan of Action, Santiago, Chile, Apr. 19, 1998,
reprinted in 37 I.L.M. 947, 950 (1998).
189 Id., at p. 1078 citing Second Summit of the Americas: Declaration of Principles and Plan of Action, Santiago,
Chile, Apr. 19, 1998, reprinted in 37 I.L.M. 947, 951 (1998).
190 Id., citing Third Summit of the Americas: Declaration of Principles, Quebec City, Canada, Apr. 22, 2001,
available at http://www.ftaa-alca.org/summits/quebec/declara_ e.asp.
191 Id., citing Third Summit: Declaration of Principles; Plan of Action at 14-15.
192 Id.
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official text of the FTAA. A revised draft of the text was released in November 2002 and again in 2003. 193This
notwithstanding, civil society organizations have expressed great concern for and emphasis on the timeliness of
information given to the public and input given to negotiators. They have observed that the draft text is published
long after issues are actually negotiated; they have thus proposed specific mechanisms for the timely release of
negotiating documents, many of which were procedures already in place in the World Trade Organization (WTO). 194
The need to create meaningful public participation during negotiation and implementation applies to both
multilateral agreements, such as the FTAA, and to bilateral agreements. 195 Public participation gives legitimacy to
the process and result, and it strengthens the political will of populations who must support ratification and
implementation once the text is finalized. The wide range of expertise available outside of governmental corridors
would also be more fully accessible to officials if an organic and meaningful exchange of ideas is part of the
process. While it is true that participation implies resource allocation and sometimes delay, these are investments in
a democratic outcome and should not be seen as costs.196
Secrecy has long played an integral but also controversial role in the negotiation of international agreements. It
facilitates frank discussion, minimizes posturing and allows flexibility in negotiating positions. But it is also prone
to abuse and is often assailed as undemocratic and facilitating abuse of power. In the public eye, excessive secrecy
can weaken accountability and undermine the legitimacy of gov-
_______________
193 Id., at pp. 1082-83.

194 Id., at p. 1096.
195 Id., at p. 1116.
196 Id., at p. 1115.
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ernment action.197 Generally, it can also undermine the faith of the public in the need for secrecy 198 for “secrecy
can best be preserved only when credibility is truly maintained.”199
The tension between secrecy and the demand for openness continues, but circumstances have changed, as
the international trade agreements of today tend to be far more authoritative and comprehensive than those
negotiated by Presidents Woodrow Wilson, George Washington and John Jay. These trade agreements have
broader and more direct consequences on private conduct. As the trend on international trade agreements will
only continue, it is important to revisit the tension between secrecy and openness. The fact alone that secrecy
shrouded negotiations of international agreements three hundred or even twenty-five years ago can no longer
justify the continuation of that approach in today’s era of the NAFTA, CAFTA (Central American Free
Trade Agreement), and a prospective FTAA.200
These developments in the openness to the public of international trade agreement negotiations show
that secrecy in the negotiation of treaties is not a rule written in stone. Revisiting the balance between secrecy
and openness is an imperative, especially in the Philippines where the right to information has been elevated to
a constitutional right essential to our democratic society.
_______________
Law Review 679, 681 (2006).
198 Id., at p. 697, citing Robert P. Deyling, Judicial Deference and De Novo Review in Litigation over National
Security Information under the Freedom of Information Act, 37 Vill. L. Rev. 67, 93 (1992).
199 N.Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring).
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Democracy and the rights to information B.
and participation
1. Philippine Constitutional provisions

on information and transparency
Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct the people’s role in
governance. As a first principle of government, the 1987 Constitution declares in Article II, Section 1, Declaration
of Principles and State Policies, that the Philippines is not only a republican but also a democratic state. The
word “democratic” was added to “republican” as a “pardonable redundancy” to highlight the importance of the
people’s role in government, as evinced by the exchanges in the 1986 Constitutional Commission, viz.:

I am putting the word “democratic” because of the provisions that we are now adopting which are covering MR.
NOLLEDO. consultations with the people. For example, we have provisions on recall, initiative, the right of the
people even to participate in lawmaking and other instances that recognize the validity of interference by the
people through people’s organizations . . .201x x x x x x x x x
MR. OPLE.The Committee added the word “democratic” to “republican,” and, therefore, the first sentence
states: “The Philippines is a republican and democratic state.”
May I know from the committee the reason for adding the word “democratic” to “republican”? The constitutional framers
of the 1935 and 1973 Constitutions were content with “republican.” Was this done merely for the sake of emphasis?
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vs. Aquino
Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the
Commissioner to know that MR. NOLLEDO. “democratic” was added because of the need to
emphasize people power and the many provisions in the Constitution that we have approved related to recall,
people’s organizations, initiative and the like, which recognize the participation of the people in policy-making in
certain circumstances.”
I thank the Commissioner. That is a very clear answer and I think it does meet a need. . . MR. OPLE.
x x x x x x x x x
According to Commissioner Rosario Braid, “democracy” here is understood as participatory democracy. MR.
NOLLEDO.202 (emphasis supplied)
Of a similar tenor is the following exchange between Commissioners Abraham Sarmiento and Adolfo
Azcuna:
When we speak of republican democratic state, are we referring to representative democracy? MR. SARMIENTO.
That is right. MR. AZCUNA.
So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words “republican
state” because “republican state” would refer to a democratic state where people choose their representatives?
MR. SARMIENTO.
We wanted to emphasize the participation of the people in government. MR. AZCUNA.203 (emphasis supplied)

In line with this desideratum, our fundamental law enshrined in rubric the indispensability of the people’s
partici-
_______________
202 Id., at p. 752.
203 Id., at p. 769.
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pation in government through recall,204 initiative,205 and referendum.206
Similarly, it expressly provided for the people’s right to effective and reasonable participation in Article
XIII, Section 16, on Social Justice and Human Rights, viz.:
“The right of the people and their organizations to effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be abridged. The State shall, by law,
facilitate the establishment of adequate consultation mechanisms.” (emphasis supplied)
To prevent the participation of the people in government from being a mere chimera, the 1987 Constitution also
gave more muscle to their right to information, protected in the Bill of Rights, by strengthening it with the
provision on transparency in government, and by underscoring the importance of communication. Thus, the 1987
Constitution provides in Article III, Section 7 of the Bill of Rights, viz.:
“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.” (emphasis supplied)
Symmetrical to this right to information are the following provisions of the 1987 Constitution:
Article II, Section 28, Declaration of State Principles and Policies:
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclo-
_______________
204 1987 PHIL. CONST., Art. X, §3.

205 1987 PHIL. CONST., Art. VI, §32; Art. X, §3.
206 1987 PHIL. CONST., Art. VI, §32; Art. X, §3.
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sure of all its transactions involving public interest.(emphasis supplied)
Article XI, Section 21, National Economy and Patrimony:
Foreign loans may be incurred in accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or guaranteed by the Government shall be made
available to the public. (emphasis supplied)
The objective of the 1987 Constitution is to attain an open and honest government predicated on the people’s
right to know, as shown by the following portion of the deliberations of the 1986 Constitutional Commission, viz.:
Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Treñas, Romulo, Regalado and
Rosario Braid. It reads as follows: “SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY
OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE
SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW.” MR. OPLE.
x x x x x x x x x
In the United States, President Aquino has made much of the point that the government should be open and accessible to
the public. This amendment is by way of providing an umbrella statement in the Declaration of Principles for all
these safeguards for an open and honest government distributed all over the draft Constitution. It establishes a
concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the people’s
right to know as the centerpiece.207 (emphasis supplied)
_______________

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The correlative policy of public disclosure and the people’s right to information were also expounded by
Constitutional Commissioners Joaquin Bernas and Napoleon Rama, viz.:
Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the
right to information) talks about the right of the people to information, and corresponding to every right is a duty. In
this particular case, FR. BERNAS. corresponding to this right of the people is precisely the duty of the State
to make available whatever information there may be needed that is of public concern. Section 6 is very
broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of
Section 6 is that it challenges citizens to be active in seeking information rather than being dependent on
whatever the State may release to them.
x x x x x x x x x
There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights.
The basic difference is that the Bill of Rights contemplates collision between the rights of the citizens and the State.
Therefore, it is MR. RAMA. the right of the citizen to demand information. While under the Declaration of
Principles, the State must have a policy, even without being demanded, by the citizens, without being sued by
the citizen, to disclose information and transactions. So there is a basic difference here because of the very
nature of the Bill of Rights and the nature of the Declaration of Principles. 208 (emphases supplied)
Going full circle, the 1987 Constitution provides for the vital role of information in nation-building in the
opening Declaration of State Principles and Policies and in the General Provisions towards the end of the
Constitution.
_______________
Id., at p. 26.
208
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Article II, Section 24, provides, viz.:
The State recognizes the 24. “Sec. vital role of communication and information in nation-
building.” (emphasis supplied).
Article XVI, Section 10, General Provisions provides, viz.:
The State shall provide the policy environment for the full development of Filipino capability and
the 10. “Sec. emergence of communication structures suitable to the needs and aspirations of the
nation and the balanced flow of information into, out of, and across the country, in accordance with
a policy that respects the freedom of speech and of the press.” (emphasis supplied)
Constitutional Commissioner Rosario Braid explained the rationale of these provisions on information and
communication in her sponsorship speech, viz.:
We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision
of society. Here we have a preferred vision where opportunities are provided for participation by as many people,
where there is unity even in cultural diversity, for there is freedom to have options in a pluralistic society.
Communication and information provide the leverage for power. They enable the people to act, to make decisions,
to share consciousness in the mobilization of the nation. MS. ROSARIO BRAID.209 (emphasis supplied)
With the constitutional provisions on transparency and information brightlined in neon as backdrop, we now focus
on the people’s right to information.
2. Focusing on the right to information
The constitutional provision on the people’s right to information made its maiden appearance in the Bill of
Rights of
_______________
209 Id., at p. 83.
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the 1973 Constitution, but without the phrase “as well as to government research data used as basis for policy
development.” The phrase was added in the 1987 Constitution to stop the government practice during Martial Law
of withholding social research data from the knowledge of the public whenever such data contradicted policies that
the government wanted to espouse.210
Likewise, the framers of the 1987 Constitution expanded the scope of “transactions” that may be accessed, to
include negotiations leading to the consummation of contracts and treaties, but subject to “reasonable safeguards on
national interest.”211
_______________
210 1 Records of the Constitutional Commission, pp. 708-710, 757-758, 760.

211 The Records of the Constitutional Commission state, viz.:

And when we say “transactions” which should be distinguished from contracts, agreements, or treaties or whatever, does
the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract
itself? MR. SUAREZ.
The “transactions” used here, I suppose, is generic and, therefore, it can MR. OPLE. cover both steps leading to a
contract, and already a consummated contract, Mr. Presiding Officer.
This contemplates MR. SUAREZ. inclusion of negotiations leading to the consummation of the transaction?
Yes, MR. OPLE. subject to reasonable safeguards on the national interest.
Thank you. Will the MR. SUAREZ. word “transactions” here also refer to treaties, executive agreements and
service contracts particularly?
I suppose that is MR. OPLE. subject to reasonable safeguards on national interest which include the national
security. (emphasis supplied) (5 Records of the Constitutional Commission, p. 25)
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The intent of the constitutional right to information, as pointed out by Constitutional Commissioner Wilfrido V.
Villacorta, is “to adequately inform the public so that nothing vital in state affairs is kept from them” 212 In Valmonte
v. Belmonte,213 we explained the rationale of the right of access to information, viz.:
“An informed citizenry with access to the diverse currents in political, moral and artistic
thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is
vital to the democratic government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to the State. In this system,
governmental agencies and institutions operate within the limits of the authority conferred by the people.
Denied access to information on the inner workings of government, the citizenry can become prey to the
whims and caprices of those to whom the power had been delegated . . .
x x x x x x x x x
. . . The right of access to information ensures that these freedoms are not rendered nugatory by the
government’s monopolizing pertinent information. For an essential element of these freedoms is to keep
open a continuing dialogue or process of communication between the government and the people. It is in
the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people’s will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in a discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of and therefore
restricted in application by the exercise of the freedoms of
_______________

213 G.R. No. 74930, February 13, 1989, 170 SCRA 256 (1989).
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speech and of the press. Far from it. The right to information goes hand-in-hand with the
constitutional policies of full public disclosure (footnote omitted) and honesty in the public
service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental
decision-making as well as in checking abuse in government.” (emphases supplied)
214
Notably, the right to information was written in broad strokes, as it merely required that information sought to be
disclosed must be a matter of public concern.215 In Legaspi v. Civil Service Commission,216 the Court elucidated on
the meaning of “matters of public concern,” viz.:
“In determining whether or not a particular information is of public concern, there is no rigid test
which can be applied. “Public concern” like “public interest” is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.” (emphasis 217
supplied)
Under both the 1973 and the 1987 Constitutions, the right to information is self-executory. It is a public right that
belongs to and can be invoked by the people. Consequently,every citizen has the “standing” to challenge any
violation of the right and may seek its enforcement. 218 The self-executory status and the significance in a democracy
of the
_______________
214 Id., at pp. 264-266.

215 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (hereafter Bernas) (2003), p.
372.
216 G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
217 Id., at p. 541.
218 Id., at p. 371.
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right of access to information were emphasized by the Court in Gonzales v. Narvasa,219 viz.:
“Under both the 1973 (footnote omitted) and 1987 Constitutions, this (the right to information) is
a self-executory provision which can be invoked by any citizen before the courts . . .
Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71
SCRA 14 [1976]. . .) that “[t]he incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no realistic
perception by the public of the nation’s problems, nor a meaningful democratic decision-making if
they are denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times.” (emphases supplied)
220
Prior to the 1973 Constitution, this right was merely statutory in character, as stressed in Subido v. Ozaeta.221In
said case, Subido was an editor of the Manila Post. He filed a petition for mandamus to compel the respondents
Secretary of Justice and Register of Deeds of Manila to furnish him the list of real estate properties sold to aliens and
registered with the Register of Deeds of Manila since the promulgation of Department of Justice Circular No. 128,
or to allow him to examine all records in the respondents’ custody relative to the said transactions, after his requests
to the Secretary of Justice and the Register of Deeds were denied.
The Court upheld the contention of the respondents that the 1935 Constitution did not guarantee freedom of
information or freedom to obtain information for publication. The Court ruled that “the right to examine or inspect
public records is purely a question of statutory construc-
_______________
219 G.R. No. 140835, August 14, 2000, 337 SCRA 733.

220 Id., at pp. 746-747.
221 80 Phil. 383 (1948).
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tion.”222 Section 56 of Act No. 496, as amended by Act No. 3300, saved the day for Subido, as it provided that “all
records relating to registered lands in the office of the Register of Deeds shall be open to the public subject to such
reasonable regulations as may be prescribed by the Chief of the General Land Registration Office with the approval
of the Secretary of Justice.” Hence, the petition for mandamus was granted.
The Subido Court’s interpretation of the 1935 Constitution followed U.S. jurisprudence that did not and
continues not to recognize a constitutional right of access to information on matters of public concern. Let us
briefly examine the right of access to information in U.S. and other jurisdictions.
3. Right to information in U.S. and other jurisdictions
U.S. jurisdiction a.
The U.S. Supreme Court has recognized a constitutional right to receive information integral to the freedom of
speech under the First Amendment to the U.S. Constitution. It has ruled, however, that the right of access to
information is not constitutionally mandated, but statutorily granted.223
The U.S. Supreme Court first identified a constitutional right to receive information in the 1936 case Grosjean v.
American Press Company.224 In that case, the U.S. High Court, citing Judge Cooley, held that a free and general
discussion of public matters is essential to prepare the people for an intelligent exercise of their rights as
citizens.225 In the 1976
_______________
222 Id.
223 Dissenting Opinion of Justice Reynato S. Puno in Tolentino v. COMELEC, et al., G.R. No. 148334, January 21,
2004, 420 SCRA 438, 489.
224 297 U.S. 233 (1936).
225 Id., at pp. 249-250, citing 2 Cooley, Const. Lim. 8th ed. p. 886.
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case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 226 widely considered to be the
seminal “right to receive” case, 227 a Virginia statute forbidding pharmacists from advertising the prices of
prescription drugs was held unconstitutional by the U.S. High Court. It reasoned that the free speech guarantee of
the First Amendment covered not only the speaker, but also the recipient of the speech. While commercial
speech was involved in that case, the Court left no doubt that the constitutional protection for receipt of
information would apply with even more force when more directly related to self-government and public policy.228
On the premise that information is a prerequisite to meaningful participation in government, the U.S. Congress
passed the Freedom of Information Act of 1966 (FOIA). 229 In the leading FOIA case, Environmental Protection
Agency v. Mink,230 the U.S. Supreme Court held that the FOIA “seeks to permit access to official information long
shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such
information from possibly unwilling official hands.” 231 In Department of Air Force v. Rose,232 the same Court held
that the basic purpose of the law was “to open agency action to the light of public scrutiny.” In National Labor
Relations Board v. Robbins Tire &
_______________
226 425 U.S. 748 (1976).

227 Bunker, M., Splichal, S., Chamberlin, B., Perry, L., “Access to Government-Held Information in the Computer
Age: Applying Legal Doctrine to Emerging Technology,” 20 Florida State Law Review 543, 549 (1993).
228 425 U.S. 748, 765, Note 19 (1976).
229 Wilcox, W., “Access to Environmental Information in the United States and the United Kingdom,” 23 Loyola of
Los Angeles International & Comparative Law Review 121, 124-125 (2001).
230 410 U.S. 73 (1973).
231 Id., at p. 80.
232 425 U.S. 352, 372 (1976).
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Rubber Co.,233 the U.S. High Court ruled that the basic purpose of the FOIA “is to ensure an informed citizenry, vital
to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable
to the governed.”234
Under the FOIA, the reason for the request for information has no bearing on the merits of the request. 235But
while the FOIA promotes a policy of public disclosure, it recognizes certain exemptions from disclosure, among
which are matters “specifically authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order.” 236
Still and all, the U.S. Supreme Court characterized the right of access to information as statutory and not
constitutional in Houchins v. KQED, Inc., et al.,237viz.: “(T)here is no constitutional right to have access to
particular government information, or to require openness from the bureaucracy. . . The Constitution itself is
neither a Freedom of Information Act nor an Official Secrets Act.” 238 Neither the U.S. courts nor the U.S.
Congress recognizes an affirmative constitutional obligation to disclose information concerning governmental
affairs; such a duty cannot be inferred from the language of the U.S. Constitution itself.239
Like the U.S., other countries also recognize a statutory right to information as discussed below.
_______________
233 437 U.S. 214 (1978).

234 Id., at p. 242.
235 EPA v. Mink, 410 U.S. 73 (1973).
236 5 U.S.C. 552 (b)(1).
237 438 U.S. 1 (1978).
238 Id., at p. 14, citing Pell v. Procunier, 417 U.S. 817 (1974) and Stewart, “Or of the Press,” 26 Hastings LJ 631, 636
(1975).
239 Note, “The Rights of the Public and the Press to Gather Information,” 87 Harvard Law Review 1505, 1512-13
(1974).
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Other jurisdictions b.
(i.e., UK, Australia and New Zealand)
In the United Kingdom, the last four decades of the 20th century saw a gradual increase in the rights of the
individual to elicit information from the public authorities. 240 This trend culminated in the passage of the “Freedom
of Information Act 2000” (FOIA 2000). FOIA 2000 conferred a right of access to official information to every
person, irrespective of that person’s interest in the information. It covers all information, regardless of subject
matter, but also provides for specific exemptions.
Exemptions under FOIA 2000 can be either absolute or qualified. When the exemption is absolute, the right to
disclosure does not apply; but when it is qualified, the right will not be applied only if the public interest in
maintaining the exemption outweighs the public interest in disclosure of the information. 241 The weighing of the
public interest must be carried out by reference to the particular circumstances existing at the time a request for
information is made. “The central question in every case is the content of the particular information in
question. Every decision is specific to the particular facts and circumstances under consideration.”242 Thus,
while a public authority may properly refuse to disclose information subject to a qualified exemption, a change in
surrounding circumstances may result in the public authority being obliged to disclose the information upon a
subsequent request.243
_______________
240 Coppel, P., Information Rights (2007), p. 2.

241 Id., pp. 4-5, 8, 505; Freedom of Information Act 2000, §2(2)(b).
242 Export Credits Guarantee Department v. Friends of the Earth, [2008] EWHC 638 (Admin), citing Department
for Education and Skills v. Information Commissioner and the Evening Standard (2007) UKIT EA 2006 0006 at [20].
243 Coppel, P., supra note 240 at p. 550.
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Among the qualified exemptions are information that “would be likely to prejudice . . . relations between the
United Kingdom and any other State”244 and “confidential information obtained from a State other than the United
Kingdom . . .”245
Ahead of the United Kingdom, the Commonwealth of Australia passed its “Freedom of Information Act 1982
(Act 1982).” Act 1982 gives every person a legally enforceable right to obtain access to information of a public
agency without requirement to demonstrate a need to know.246 At the same time, it recognizes two basic kinds of
exemptions: (1) exemptions which protect a document of a particular class or kind without a need to refer to the
effects of disclosure (class exemption), and (2) exemptions which depend on demonstrating a certain likelihood
that a particular harm would result from disclosure of a document (harm-based exemption).
Covered by the harm-based exemptions are documents that “would, or could reasonably be expected to, cause
damage to . . . the international relations of the Commonwealth” or “would divulge any information or matter
communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an
international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a
person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.” 247
Almost simultaneous with Australia, New Zealand enacted the “Official Information Act 1982 (OIA),” which
allows its citizens, residents, persons in New Zealand, and companies incorporated in New Zealand to request
official informa-
_______________
244 Freedom of Information Act 2000, §27(1)(a).

245 Id., at §27(2).
246 Freedom of Information Act 1982, §11(2).
247 Id., at §33.
651
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tion. Under the OIA, exemptions may be divided into two broad classes: (1) “those that are engaged upon their terms
being satisfied,” and (2) “those that will be disengaged if, in the circumstances, the withholding of particular
information is outweighed by other considerations which render it desirable in the public interest to make that
information available.”248 Among the exemptions included in the first class is information that would be likely
to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the
government of any other country or any agency of such government.249
Taking into account the higher constitutional status of the right of access to information in Philippine
jurisdiction compared with the statutorily granted right of access to information in U.S. and other jurisdictions, let
me now turn to the question of whether executive privilege can constitute an exception to the right of access and be
used to withhold information from the public.
Adjudicating the constitutional right to C.

information vis-à-vis executive privilege in
Philippine jurisdiction
1. The general rule and the exception

With the elevation of the right to information to constitutional stature, the starting point of the inquiry is
the general rule that the public has a right to information on matters of public concern and the State has a
corresponding duty to allow public access to such information. It is recognized, however, that the constitutional
guarantee admits of exceptions such as “limitations as may be provided by law.”250 Thus, as
_______________
248 Coppel, P., supra note 240 at p. 67.

249 Official Information Act 1982, §§6(b) and 27(1); Coppel, supra note 240, pp. 68-69.
250 1987 Phil. Const. Art. III, §7.
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held in Legaspi, “in every case, the availability of access to a particular public record” is circumscribed by two
elements: (1) the information is “of public concern or one that involves public interest,” and, (2) it is “not
exempt by law from the operation of the constitutional guarantee.” 251
The question of access is first addressed to the government agency having custody of the information
sought. Should the government agency deny access, it “has the burden of showing that the information
requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from
the operation of the guarantee” because “(t)o hold otherwise will serve to dilute the constitutional right. As aptly
observed, ‘. . . the government is in an advantageous position to marshal and interpret arguments against release . . .’
(87 Harvard Law Review 1511 [1974]).”252 Furthermore, the Court ruled that “(t)o safeguard the constitutional right,
every denial of access by the government agency concerned is subject to review by the courts.”253
There is no dispute that the subject JPEPA documents are matters of public concern that come within the
purview of Article III, Section 7 of the Bill of Rights. The thorny issue is whether these documents, despite being
of public concern, are exempt from being disclosed to
_______________
251 G.R. No. L-72119, May 29, 1987, 150 SCRA 530.

252 Id. Analogously, in the U.S., the Freedom of Information Act (FOIA) was enacted to facilitate public access to
government documents. The statute was designed “to pierce the veil of administrative secrecy and to open agency action
to the light of public scrutiny.” Consistent with this purpose and the plain language of the FOIA, the burden is on the
government agency to justify the withholding of any requested documents. (references omitted) U.S. Department of State
v. Ray, et al., 502 U.S. 164, 173 (1991).
253 G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
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petitioner private citizens on the ground that they are covered by executive privilege.254
Unlike the U.S., U.K., Australia, and New Zealand, the Philippines does not have a comprehensive freedom of
information law that enumerates the exceptions or sources of exceptions 255 to the right to information. In our
jurisdiction, various laws provide exceptions from the duty to disclose information to the public, such as Republic
Act No. 8293 or the “Intellectual Property Code,” Republic Act No. 1405 or the “Secrecy of Bank Deposits Act,”
and Republic Act No. 6713 or the “Ethical Standards Act.”256
Respondents contend that Executive Order 464 (E.O. 464), “Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation under the Constitution, and for
_______________
254 See Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530, 541; See
also Comment, pp. 15-21.
255 For example, the U.S. FOIA provides for the following sources of exceptions from the duty to disclose
information, viz.:
This section (referring to the FOIA) does not apply to matters that are— (b)
(A) specifically authorized under criteria established by an (1) Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
x x x x x x x x x
specifically exempted from disclosure by (3) statute (other than section 552b of this title), provided that such statute
(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to particular types of matters to be withheld . . . (5 U.S.C. 552 [b][1]
and [3])
256 Bernas, pp. 372-73.
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other Purposes,”257 provides basis for exemption of the subject
_______________
257 Issued by President Gloria Macapagal-Arroyo on September 28, 2005. E.O. 464 provides in relevant part, viz.:
Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution
and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government,
all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress. 1. Section
When the security of the State or the public interest so requires and the President so states in writing, the appearance
shall only be conducted in executive session.
2. SectionNature, Scope and Coverage of Executive Privilege.
(a)Nature and Scope.—The rule of confidentiality based on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995, 244 SCRA 286). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials
and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995, 244 SCRA 286; Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002, 384 SCRA 152);
Military, diplomatic and other national security matters which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995, 244 SCRA 286; Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998, 299 SCRA 744).
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JPEPA documents from the operation of the constitutional guarantee of access to information. They argue that
while Senate v. Ermita struck down Sections 2(b) and 3 of E.O. 464 as unconstitutional, Section 2(a), which
enumerates the scope of executive privilege including information prior to the conclusion of treaties, was spared
from a declaration of consti-
_______________
Information between inter-government agencies prior to the conclusion of treaties and executive agreements ( Chavez
v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998, 299 SCRA 744);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998, 299 SCRA 744);
atters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002,
384 SCRA 152).
Who are covered. The following are covered by this executive order: b)
Senior officials of executive departments who in the judgment of the department heads are covered by the executive
privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in
the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive
privilege; and
Such other officers as may be determined by the President.
3. SectionAppearance of Other Public Officials Before Congress.—All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights
of public officials appearing in inquiries in aid of legislation.
656
ANNOTATED
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tutional infirmity.258 However, it is easily discernible from the title and provisions of E.O. 464 that this presidential
issuance applies to executive privilege invoked against the legislature in the context of inquiries in aid of
legislation, and not to executive privilege invoked against private citizens asserting their constitutional right
to information.259 It thus cannot be used by respondents to discharge their burden of showing basis for exempting
the subject JPEPA documents from disclosure to petitioners suing as private citizens.
Respondents also rely on Almonte, Chavez v. PCGG, Senate v. Ermita, and PMPF v. Manglapus to carve out
from the coverage of the right to information the subject JPEPA documents. Let us put these cases under the lens of
scrutiny to determine the correctness of respondents’ reliance upon them.
As noted earlier, Almonte recognized a common law governmental privilege against disclosure, with respect
to state secrets bearing on military and diplomatic matters. 260 his case involved an investigation by the Office of
the Ombudsman that required the Economic Intelligence and Investigation Bureau (EIIB) to produce records
pertaining to their personnel. As the Court found that no military or diplomatic secrets would be disclosed by the
production of these records and there was no law making them classified, it held that disclosure of the records to the
Office of the Ombudsman was
_______________
258 Comment, pp. 18-20.

259 The Court ruled in Senate v. Ermita, viz.:
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of
public concern.
260 G.R. No. 95367, May 23, 1995, 244 SCRA 286, citing 10 Anno., Government Privilege Against Disclosure of
Official Information, 95 L. Ed. 3-4 and 7, pp. 427-29, 434.
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warranted. In arriving at this conclusion, the Court noted that the case did not concern a demand by a citizen for
information under the freedom of information guarantee of the Constitution, but involved the power of the
Office of the Ombudsman to obtain evidence in connection with an investigation conducted by it vis-a-visthe claim
of privilege of an agency of the Government. It is thus not difficult to see that the facts and issue of Almontestarkly
differ from the case of petitioner private citizens who are enforcing their constitutional right to
information. Given this distinction, I submit that Almonte cannot provide the backbone for exemption of the
subject JPEPA documents from disclosure. The same holds true with respect to Senate v. Ermita in which the
constitutionality of E.O. 464 was at issue, and the Court ruled, viz.:
“E.O. 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearingsconducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern.” (emphasis supplied)
261
In Chavez v. PCGG, the Court, citing the above-quoted exchanges of the Constitutional Commissioners regarding
the constitutional right to information, recognized that “information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national
interest.” Be that as it may, in Chavez v. PCGG, the Court resolved the issue whether the government, through the
Presidential
_______________
261 G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006). The right to information was involved in that case only “(t)o
the extent that investigations in aid of legislation are generally conducted in public;” thus, “any executive issuance tending
to unduly limit disclosures of information in such investigations necessarily deprives the people of information which,
being presumed to be in aid of legislation, is presumed to be a matter of public concern.”
658
ANNOTATED
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Commission on Good Government (PCGG), could be compelled to disclose the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth. The Court did not have occasion to
rule on the diplomatic secrets privilege vis-à-vis the constitutional right to information.
It was in PMPF v. Manglapus that the Court was confronted with a collision between a citizen’s constitutional
right to information and executive secrecy in foreign affairs. As afore-discussed, the Court, in denying the petition in
an unpublished Resolution, quoted at length Curtiss-Wright’s disquisition on the necessity of secrecy in foreign
negotiations. Again, the relevant portion of that quote, which was cited by respondents, reads, viz.:
“In this vast external realm, with its important, complicated, delicate and manifold problems, the
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument
of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.’ Annals, 6th Cong., col. 613.
x x x x x x x x x
It is important to bear in mind that we are here dealing not alone with an authority vested in the
President by an exertion of legislative power, but with such an authority plus the very delicate,
plenary and exclusive power of the President as the sole organ of the federal government in the field
of international relations—a power which does not require as a basis for its exercise an act of
Congress, but which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the
maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be
avoided and success for our aims achieved, congressional 659
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legislation which is to be made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom from statutory restriction which
would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials. Secrecy in respect of information gathered by them may be highly
necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this
true that the first President refused to accede to a request to lay before the House of Representatives the
instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the
wisdom of which was recognized by the House itself and has never since been doubted.” (emphasis 262
supplied)
The Court followed this quote with the conclusion that “(w)e have the same doctrine of separation of powersin
the Constitution and the same grant of authority in foreign affairs to the President as in the American system. The
same reasoning applies to treaty negotiations by our Government.”
Taking a hard look at the facts and circumstances of PMPF v. Manglapus, it cannot escape one’s eye that
this case did not involve a question of separation of powers arising from a legislative inquiry , as in the case of
the House of Representative’s demand on President Washington for papers relating to the Jay Treaty. In PMPF v.
Manglapus, petitioners invoked their right to information under Article III, Section 7; and freedom of speech and
the press under Article III, Section 4. They sought to compel the representatives of the President of the Philippines
in the then ongoing negotiations of the RP-U.S. Military Bases Agreement to (1) open to petitioners the
negotiations/sessions of respondents with their U.S. counterparts on the RP-U.S.
_______________
262 PMPF v. Manglapus, G.R. No. 84642, September 13, 1988, pp. 5-6.
660
ANNOTATED
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Military Agreement; (2) reveal and/or give petitioners access to the items which they (respondents) had already
agreed upon with their American counterparts relative to the review of the RP-U.S. Military Bases Agreement; and
(3) reveal and/or make accessible to petitioners the respective positions of respondents and their U.S. counterparts
on items they had not agreed upon, particularly the compensation package for the continued use by the U.S. of their
military bases and facilities in the Philippines. The above quote from Curtiss-Wright, referring to a conflict between
the executive and the legislative branches of government, was therefore different from the factual setting of PMPF
v. Manglapus. The latter case which involved a collision between governmental power over the conduct of foreign
affairs with its secrecy prerogative on the one hand, and the citizen’s right to information under the Constitution on
the other.
The PMPF Court did stress that secrecy of negotiations with foreign countries did not violate freedom of access
to information and freedom of speech and of the press. Significantly, it quoted The New American Government
and Its Work, viz.:
“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.
Although much has been said about “open” and “secret” diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of
Mr. Stimson:
“A complicated negotiation… cannot be carried through without many, many private talks and
discussions, man to man; many tentative suggestions and proposals. Delegates from other countries come
and tell you in confidence of their troubles at home and of their differences with other countries and with
other delegates; they tell you of what they do under certain circumstances and would not do under other
circumstances . . . If these reports . . . should become public . . . who would ever trust American
Delegations in another661
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conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284).
x x x x x x x x x
“There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all
subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed
by one writer, ‘It can be said that there is no more rigid system of silence anywhere in the world.’ (E.J.
Young, Looking Behind the Censorship, J.B. Lippincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have ‘open covenants, openly arrived
at.’ He quickly abandoned his thought.
“No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to ‘muscle in.’ An ill-timed speech
by one of the parties or a frank declaration of the concessions which are extracted or offered on
both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty
has been drafted and its terms are fully published, there is ample opportunity for discussion before
it is approved.”(The New American Government and Its Work, James T. Young, 4th edition, p.
194)” (emphasis supplied)
263
It is worth noting that while the above quote speaks of the evil of “open” diplomacy, it does not discuss the
value of the right of access to information; much less, one that is constitutional in stature. The New American
Government and Its Work was published in 1940, long before the Freedom of Information Act was passed in the
U.S. in 1966. It did not and could not have taken into account the expanded statutory right to information in
FOIA. It is more doubtful if this book can be used to calibrate the importance of the right of access to
information in the Philippine setting, considering its elevation as a constitutional right.
_______________
263 PMPF v. Manglapus, G.R. No. 84642, September 13, 1988, pp. 3-4.
662
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Be that as it may, I submit that as both Chavez v. PCGG and PMPF v. Manglapus are extant case law
recognizing the constitutionally-based diplomatic secrets privilege over treaty negotiations, respondents have
discharged the burden of showing the bases for exempting the subject JPEPA documents from the scope of the
constitutional right to information.
Prescinding from these premises, the next question to grapple with is whether the exemption or diplomatic
secrets privilege over treaty negotiations as recognized in Chavez v. PCGG and PMPF v. Manglapus is absolute or
qualified.
2. Diplomatic secrets privilege covering treaty negotiations: An absolute or qualified exemption?
It is my considered view that the diplomatic secrets privilege is a qualified privilege or qualified exemption from
the coverage of the right to information. In Chavez v. PCGG, the Court cited the following deliberations of the 1986
Constitutional Commission in recognizing that “inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national interest,” viz.:
And when we say “transactions” which should be distinguished from contracts, agreements, or treaties or whatever, does
the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract
itself? MR. SUAREZ.
The “transactions” used here, I suppose, is generic and, therefore, it can MR. OPLE. cover both steps leading to a
contract, and already a consummated contract, Mr. Presiding Officer.
This contemplates MR. SUAREZ. inclusion of negotiations leading to the consummation of the transaction?
Yes, MR. OPLE. subject to reasonable safeguards on the national interest.663
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vs. Aquino
Thank you. Will the MR. SUAREZ. word “transactions” here also refer to treaties, executive agreements and
service contracts particularly?
I suppose that is MR. OPLE. subject to reasonable safeguards on national interest which include the national
security.”264 (emphasis supplied)
The above deliberations show that negotiation of treaties and executive agreements may or may not come within the
purview of “transactions” covered by the right to information, subject to reasonable safeguards to protect
national interest.265 In other words, the diplomatic secrets privilege over treaty negotiations may provide a ground
for exemption, but may be overcome if there are reasonable safeguards to protect the national interest. It is
thus not an absolute exemption or privilege, but a qualified one.
The Freedom of Information Act 2000 of the United Kingdom provides that when an exemption is qualified,
the right to information will not be upheld only ifthe public interest in maintaining the exemption outweighs
the public interest in disclosure of the information. The Act treats as qualified exemptions information that
“would be likely to prejudice . . . relations between the United Kingdom and any other State” 266 and “confidential
information obtained from a State other than the United Kingdom. . . .”267 As such, these exemptions may be
overcome by a higher public interest in disclosure.
_______________

265 With respect to the disclosure of the subject JPEPA documents to the House Special Committee on Globalization
conducting an inquiry in aid of legislation, the “reasonable safeguard(s) for the sake of national interest” is that the said
documents are released only after employing a “balancing of interests test” as will subsequently be shown.
266 Freedom of Information Act 2000, §27(1)(a).
267 Id., at §27(2).
664
ANNOTATED
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It may be argued that the subject JPEPA documents consist of information similar to information covered by the
above-cited qualified exemptions under the Freedom of Information Act 2000. The qualification of the above
exemptions in the United Kingdom is made in the context of a statutory grant of a right to information. In the
Philippines where the right to information has more force and effect as a constitutional right, there is all the more
reason to give it stronger muscle by qualifying the diplomatic secrets privilege exemption. This approach minimizes
the risk of unjustifiably withholding diplomatic information that is of public concern but covered by overly broad
absolute exemptions.
We thus come to the task of cobbling the appropriate test to weigh the public interest in maintaining the
exemption or privilege over diplomatic secrets and the public interest in upholding the constitutional right to
information and disclosing the subject JPEPA documents.
3. The test to use in adjudicating the constitutional right to information vis-à-vis executive
privilege is the “balancing of interests,”
and not the “showing of need”
While I agree with the ponencia’s treatment of the diplomatic secrets privilege as a qualified privilege and its
recognition of the need to formulate a weighing test, it is my humble view that, contrary to its position, we cannot
use the test laid down in U.S. v. Nixon,268 Senate Select Committee v. Nixon,269 and In re Sealed Case (Espy)270that
the Court should determine whether there is a “sufficient showing of need” for the disclosure of disputed
documents. None of these three cases can provide the proper test. The re-
_______________
268 418 U.S. 683 (1974).

269 498 F.2d 725, 162 U.S. App. D.C. 183.
270 121 F.3d 729, 326 App. D.C. 276.
665
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quirement of “showing of need” applies when executive privilege is invoked against an evidentiary need for
information, such as in the case of another government entity seeking information in order to perform its
function; that is, the court in U.S. v. Nixon, the Senate in Senate Select Committee, and the grand jury in In re
Sealed Case (Espy).
In the adjudication of rights guaranteed in the Constitution, however, the Court has never used “showing
of need” as a test to uphold rights or allow inroads into them. I respectfully submit that we ought not to weigh
the need to exercise the right to free speech or free assembly or free practice of religion. These are freedoms that
have been won by all for the benefit of all, without the requisite showing of need for entitlement. When we valuate
these constitutional rights, we do not consider their necessity for the performance of a function, as in the case of
government branches and entities. The question in the adjudication of constitutional rights is whether the incursion
into a right is peripheral or essential, as when there is only a “soft restraint” on the potential extraditee’s right to
procedural due process; 271 or whether there is a heavier public interest that must prevail over a constitutional right
in order to preserve an ordered society, such as when there is a “clear and present danger” of a substantive evil
that the State has a right to prevent as demonstrated in free speech cases, 272 or when there is a “compelling state
interest” that must override the free exercise of religion.273
_______________
271 Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000, 322 SCRA 160.
272 Cabansag v. Fernandez, 102 Phil. 152 (1957); Gonzales v. Commission on Elections, 137 Phil. 489; 27 SCRA
835 (1969); Bradenburg v. Ohio, 395 U.S. 444 (1969).
273 Estrada v. Escitor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA 1.
666
ANNOTATED
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The right to information lies at the heart of a government that is not only republican but also
democratic. For this reason, Article III, Section 7 274 of the 1987 Constitution, calls for “an informed citizenry with
access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange
of ideas and discussion of issues thereon is vital to the democratic government envisioned under our
Constitution.”275 Thus, employing the “balancing of interests” test, the public interest in upholding this
constitutional right of the public to information must be carefully balanced with the public interest in nondisclosure
of information in relation to treaty negotiations. This test is in line with the approach adopted in the right to access
statute of the United Kingdom and New Zealand.
There is a world of difference between employing the “balancing of interests” test and the “showing of need”
test adopted by the ponencia from U.S. v. Nixon, Senate Select Committee v. Nixon, and In re Sealed Case
(Espy). In U.S. v. Nixon, the “showing of need” was necessary, as the information was being sought by a court
as evidence in a criminal proceeding. In Senate Select Committee, the information was being sought by the Senate
to resolve conflicting testimonies in an investigation conducted in the exercise of its oversight functions over
the executive branch and in aid of legislation pertaining to executive wrongdoing. Finally, in In re Sealed Case
(Espy), the information was being sought by the grand jury to inves-
_______________
274 1987 Phil. Const. Art. III, §7 provides, viz.:

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.
275 Valmonte, supra at p. 264.
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tigate whether a government official had committed a crime.
In weighing the “showing of need” in all three cases, the courts considered the relevance of the evidence, the
availability of other evidence, and the criticality of the information sought in the performance of the functions of the
court, the Senate, and the grand jury, respectively. These considerations have no meaning in petitioners’ assertion of
their right to information, for there is no proceeding in relation to which these considerations can be measured. It
easily leaps to the eye that these considerations do not apply to adjudication on the constitutional right to
information in relation to executive privilege, but the ponencia does not state what the “showing of need” consists of
in the context of the public’s assertion of the right to information
Insofar as the constitutional right of access is concerned, the writing on the wall indicates that it suffices that
information is of public concern for it to be covered by the right, regardless of the public’s need for the
information—whether to assess the performance of the JPEPA Philippine negotiating panel and express satisfaction
or dissatisfaction, or to protest the inclusion of repulsive provisions in the JPEPA, or to keep public officials on their
toes by making them aware that their actions are subject to public scrutiny—or regardless ofthe public’s lack of
need for the information, if they simply want to know it because it interests them.276
The right to information is a constitutional right in and of itself and does not derive its significance only in
relation to the exercise of another right, such as the right to free speech or a free press if that is the kind of
“function” of an individual
_______________
276 Similarly, as afore-discussed, the statutes on the right of access to information of the United States, United
Kingdom, and Australia, among others, do not require a demonstration of need or reason to access information.
668
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that can be equated with the functions of government agencies in the above cases cited by the ponencia. To
reiterate, Valmonte teaches that the right to information is not merely an adjunct of the right to free speech and a
free press. Stated another way, the right to information is an end in itself, even as it may be exercised in
furtherance of other rights or purposes of an individual. To say that one exercises the right to information simply to
be informed, and not because of a particular need, is not a meaningless tautology. Thus, instead of using “showing
of need” as a passport to access purportedly privileged information, as in the case of government entities needing
information to perform a constitutionally mandated duty, the yardstick with respect to individuals exercising a
constitutionally granted right to information should be the importance of the right and the public interest in
upholding it.
Prescinding from these premises, I respectfully submit that the test laid down by the ponencia—which
predicates access to information on a “showing of need” understood in the context of U.S. v. Nixon, Senate Select
Committee v. Nixon, and In re Sealed Case (Espy)—will have the pernicious effect of subverting the nature,
purpose and wisdom of including the “right to information on matters of public concern” in the Bill of Rights as
shown in the above-quoted deliberations of the 1986 Constitutional Commission. It sets an emasculating
precedent on the interpretation of this all-important constitutional right and throws into perdition the philosophy
of an open government, painstakingly enshrined by the framers of the 1987 Constitution in the many scattered
provisions from beginning to end of our fundamental law.
Applying the balancing of interests test to the case at bar leads to the ineluctable conclusion that the scale must be
tilted in favor of the people’s right to information for, as shown earlier, the records are bereft of basis for finding
a public interest to justify the withholding of the sub-669
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ject JPEPA documents after the negotiations have been concluded. Respondents have not shown a sufficient
and specific public interest to defeat the recognized public interest in exercising the constitutional right to
information to widen the role of the citizenry in governmental decision-making by giving them a better
perspective of the vital issues confronting the nation,277 and to check abuse in government.278
As aforestated, the negotiations are already concluded and the JPEPA has been submitted to the Senate for its
concurrence. The treaty has thus entered the ultimate stage in which the people can exercise their right to
participate in the discussion on whether the Senate should concur in its ratification or not. This right will be
diluted, unless the people can have access to the subject JPEPA documents.
The ponencia cites PMPF v. Manglapus, Chavez v. PCGG and Chavez v. Public Estates
Authority279 and Senate v. Ermita as authorities for holding that the subject JPEPA documents are traditionally
privileged; and emphasizes that “(t)he privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being claimed under different
circumstances.”280 This approach espoused by the ponencia, however, deviates from the fundamental teaching
of Senate v. Ermita that a claim of executive privilege may be held “valid or not depending on the ground
invoked to justify it and the context in which it is made.”
_______________
277 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530, 541; 1 Records of the
Constitutional Commission, p. 709.
278 G.R. No. 74930, February 13, 1989, 170 SCRA 256, 266.
279 433 Phil. 506; 384 SCRA 152 (2002).
280 Ponencia.
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In U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S. Supreme Court was careful to delineate
the applicability of the principles of the case in stating that “(w)e are not here concerned with the balance between
the President’s generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with
that between the confidentiality interest and congressional demands for information, nor with the President’s interest
in preserving state secrets. We address only the conflict between the President’s assertion of a generalized privilege
of confidentiality and the constitutional need for relevant evidence in criminal trials.” 281 I respectfully submit that
the Court likewise ought to take half a pause in making comparisons and distinctions between the above
Philippine cases cited by the ponencia and the case at bar; and examine the underlying reasons for these
comparisons and distinctions, lest we mistake apples for oranges.
That the application of the “showing of need” test to executive privilege cases involving branches of government
and of the “balancing of interests” test to cases involving the constitutional right to information could yield different
results is not an absurdity. The difference in results would not be any more absurd than it would be for an accused to
be adjudged innocent in a criminal action but liable in a civil action arising from one and the same act he
committed.282 There is no
_______________
281 418 U.S. 683, 712 at Note 19.

282 Similarly, the application of the U.S. Freedom of Information Act (FOIA) can yield different results between a
request for information by the public and by the legislature. The FOIA requires executive agencies to make documents
available to the public, but sets forth nine exemptions from the Act, including matters that are specifically authorized
under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and
are in fact properly classified pursuant to such executive order . . . These exemptions justify denial to the public of
information from executive agencies, but they do not apply to Congress. FOIA
671
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absurdity when a distinction is made where there are real differences.
Indeed, it is recognized that executive privilege is also constitutionally based. Proceeding from the respondents’
and the ponencia’s reliance on Curtiss-Wright, even this case, as aforestated, makes a qualification that the foreign
relations power of the President, “like every other governmental power, must be exercised in subordination to
the applicable provisions of the Constitution.” 283 In drawing the contours and restrictions of executive privilege,
which finds its origins in the U.S., the constitutional status of the right to information in the Philippines—which is
not true of the statutory right to information in the U.S.—must at the same time be given life, especially
considering the many contested provisions of the JPEPA as shown in the ensuing discussion.
Right to information, informed debate, D.

and the contested provisions of the JPEPA
The exercise of the right to information and informed debate by the public on the JPEPA are crucial in light of
the comprehensiveness and impact of this agreement. It is an amalgam of two distinct agreements—a bilateral free
trade agreement and a bilateral investment agreement. Thus, international and constitutional law expert Justice
Florentino P. Feliciano cautions that we must be “twice as awake, twice as vigilant” in examining very carefully
the provisions of the agreement.284 The nearly 1,000-page JPEPA contains 16 chapters, 165 articles and eight annexes
covering a wide
_______________
specifically provides that these exemptions do not constitute authority to withhold information from Congress.
284 TSN, Hearing of the House of Representatives Special Committee on Globalization and WTO, 12 October 2005,
p. 11.
672
ANNOTATED
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range of economic cooperation including trade in goods, rules of origin, customs procedures, paperless trading,
mutual recognition, trade in services, investment, movement of natural persons, intellectual property, government
procurement, competition, improvement of the business environment, cooperation and dispute avoidance and
settlement.
The JPEPA’s comprehensive scope is paralleled by the widespread expression of concern over its
ratification. In the Senate, there is a move to concur in the President’s ratification provided that the JPEPA comply
with our constitutional provisions on public health, protection of Filipino enterprises, ownership of public lands and
use of natural resources, ownership of private lands, reservation of certain areas of investment to Filipinos, giving to
Filipinos preference in the national economy and patrimony, regulation of foreign investments, operation of public
utilities, preferential use of Filipino labor and materials, practice of professions, ownership of educational
institutions, state regulation of transfer of technology, ownership of mass media, and ownership of advertising firms.
Among scholars and the public, not a few have registered strong reservations on the ratification of the JPEPA
for its being studded with provisions that are detrimental to the Filipino interest. 285 While the executive branch and
other groups have expressed support for the JPEPA, these contested provisions, at the very least, merit public
debate and access to the subject JPEPA documents, for they have far-reaching effects on the public’s interest
and welfare.
Two highly contested JPEPA provisions are Articles 89 and 94. Advocates against the JPEPA contend that these
provisions run afoul of the 1987 Constitution, primarily Arti-
_______________
285 See Salazar, M., “JPEPA Concerns,” Manila Bulletin, 2 June 2008; Aning, J., “Santiago slammed for “conditional”
stance on JPEPA, Philippine Daily Inquirer (www.inq7.net), 26 April 2008.
673
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cle XII, on the National Economy and Patrimony. Article 89 of the JPEPA provides for National Treatment, viz.:
89 Article
National Treatment
Each Party shall accord to investors of the other Party and to their investments treatment no less
favorable than that it accords, in like circumstances, to its own investors and to their
investments with respect to the establishment, acquisition, expansion, management, operation,
maintenance, use, possession, liquidation, sale, or other disposition of investments.
In the opinion rendered by Justice Feliciano in response to the invitation to deliver a statement at a hearing of
the Senate Joint Committee on Foreign Relations and the Committee on Trade and Commerce, he explained that the
“national treatment” obligation requires the Philippines to “treat Japanese investors as if they were Philippine
nationals, and to treat Japanese investments in the Philippines as if such investments were owned by Philippine
nationals.”286 This provision raises serious constitutional questions and need untrammeled discussion by the public,
as entry into certain sectors of economic activity in our country is restricted to natural persons who are Philippine
citizens or to juridical persons that are at least sixty, seventy or one hundred percent owned by Philippine citizens.
Among these constitutional provisions are Article XII, Section 2 on the utilization of lands and other natural
resources of the Philippines;287 Article XII,
_______________
286 Memorandum of Justice Florentino P. Feliciano on the Constitutional Law Aspects of the Japan-Philippines Economic
Partnership Agreement (JPEPA), Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade
and Commerce, 8 October 2007, p. 7.
287 1987 Phil. Const. Art. XII, §2 provides, viz.:
All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of po- 2.
Section
674
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Section 11 on the operation of public utilities;288 Article XII,
_______________
tential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development,
and utilization of natural resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or
industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and
technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty
days from its execution.
288 1987 Phil. Const. Art. XII, §11 provides, viz.:
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Section 14, paragraph 2 on the practice of professions;289and Article XIV, Section 4(2),290 among others.291

_______________
No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted
except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at
least sixty 11. Section per centum of whose capital is owned by such citizens; nor shall such franchise, certificate,
or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or
right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the
Congress when the common good so requires. The State shall encourage equity participation in public utilities by
the general public. The participation of foreign investors in the governing body of any public utility enterprise shall
be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation
or association must be citizens of the Philippines.
289 1987 Phil. Const. Art. XII, §14 provides in relevant part, viz.:
. . . The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by
law.
290 1987 Phil. Const. Art. XIV, §4(2) provides, viz.:
4 . . . . (2) Educational institutions, other than those established by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or corporations or associations at least sixty Section per centum of the
capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity
participation in all educational institutions.
The control and administration of educational institutions shall be vested in citizens of the Philippines.
No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more
than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other
foreign temporary residents.
676
ANNOTATED
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To be sure, Article 94 of the JPEPA provides for an option on the part of the Philippines to uphold the
constitutional and statutory provisions referred to above despite their collision with the “national treatment”
obligation in Article 89. That option is exercised by listing, in the Schedule to Part I of Annex 7 of the JPEPA, the
existing non-conforming constitutional and legal provisions that the Philippines would like to maintain in effect,
notwithstanding the requirements of Article 89 of the JPEPA. 292 The Philippines exercised that option by attaching its
Schedule to Part I of Annex 7 of the JPEPA. Be that as it may, some scholars note that the Philippine Schedule is not
a complete list of all the currently existing constitutional and statutory provisions in our legal system that provide for
exclusive access to certain economic sectors by Philippine citizens and Philippine juridical entities that have a
prescribed minimum Philippine equity content. They claim that the most dramatic example of an omission is the
aforementioned Article XII, Section 11 of the Constitution, relating to the operation of public utilities. They cite
other examples: the afore-mentioned Article XII, Section 14 relating to the practice of all professions, save in cases
prescribed by law; Article XIV, Section 4(2) relating to ownership and administration of educational institutions;
Article XVI, Section 11(1)293 relating to mass media; and Article XVI, Section 11(2)294
_______________
291 Supra note 286 at pp. 7-8.

292 Id., at p. 8.
293 1987 Phil. Const. Art. XVI, §11 (1) provides, viz.:
The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by such citizens. (1) 11. Section
294 1987 Phil. Const. Art. XVI, §11 (1) provides, viz.:
The advertising industry is impressed with public interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare. (2) 11. Sec.
677
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relating to the advertising industry.295
On trade and investment, former U.P. College of Law Dean Merlin Magallona, an international law expert,
explained as resource person in the hearing of the Senate Joint Committee on Foreign Relations and the Committee
on Trade and Commerce that, under Articles 96 and 98 of the JPEPA, the Philippines stands as an insurance
company for Japanese investments against private acts.296
Articles 96 and 98 of the JPEPA provide, viz.:
96 Article
Protection from Strife
Each Party shall accord to investors of the other Party that have suffered loss or damage relating to
their investments in the Area of the former Party due to armed conflict or state of emergency such as
revolution, insurrection, civil disturbance or any other similar event in the Area of that former Party,
treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less
favorable than the most favorable treatment which it accords to any investors. 1.
_______________
Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by
such citizens shall be allowed to engage in the advertising industry.
The participation of foreign investors in the governing body of entities in such industry shall be limited to their
proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of
the Philippines.
295 Supra note 286 at pp. 8-9.
296 Dean Merlin Magallona, TSN, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade
and Commerce, 8 October 2007; see also Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on
Foreign Relations and Committee on Trade and Commerce, 4 October 2007, p. 8, citing Dean Merlin Magallona’s August 14
Senate lecture on the Constitutional and Legal Implications of the JPEPA.
678

ANNOTATED
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Any payments made pursuant to paragraph 1 above shall be effectively realizable, freely convertible
and freely transferable. 2.
Article 98
Subrogation
If a Party or its designated agency makes a payment to any of its investors pursuant to an indemnity,
guarantee or insurance contract, arising from or pertaining to an investment of that investor within the
Area of the other Party, that other Party sh 1.all:
recognize the assignment, to the former Party or its designated agency, of any right or claim of
such investor that formed the basis of such payment; and (a)
recognize the right of the former Party or its designated agency to exercise by virtue of
subrogation any such right or claim to the same extent as the original right or claim of the
investor. (b)
Articles 95, 96 and 97 shall apply 2. mutatis mutandis as regards payment to be made to the Party or
its designated agency first mentioned in paragraph 1 above by virtue of such assignment of right or claim,
and the transfer of such payment.
Dean Magallona pointed out that under Articles 96 and 98 of the JPEPA, the Japanese government may execute with
a Japanese investor in the Philippines a contract of indemnity, guaranty, or insurance over loss or damage of its
investments in the Philippines due to revolution, insurrection, or civil disturbance. Compensation by the Japanese
government to its investor under such contract will give rise to the right of the Japanese government to be
subrogated to the right or claim of the Japanese investor against the Philippine government. The Philippines
recognizes explicitly this assignment of right or claim of the Japanese investor against the Philippine Government
under Article 98. In effect, he warns that the Philippines has made itself liable for acts of private individuals engaged
in revolution, insurrection or civil disturbance. He submits that this is an abdication of sovereign prerogative,
considering that under general or customary international law, the Philippines is subject to international
responsibility679
VOL. 558, JULY 16, 2008 679
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only by reason of its own sovereign acts, not by acts of private persons.297
Environmental concerns have also been raised in relation to several provisions of the JPEPA, among which is
Article 29 on Originating Goods, which provides, viz.:
Article 29
Originating Goods
Except as otherwise provided for in this Chapter, a good shall qualify as an originating good of a Party
where: 1.
the good is wholly obtained or produced entirely in the Party, as defined in paragraph 2
below; (a)
the good is produced entirely in the Party exclusively from originating materials of the Party;
or (b)
the good satisfies the product specific rules set out in Annex “2,” as well as all other applicable
requirements of this Chapter, when the good is produced entirely in the Party using nonoriginating
materials. (c)
For the p 2.urposes of subparagraph 1(a) above, the following goods shall be considered as being
wholly obtained or produced entirely in a Party:
x x x x x x x x x
articles collected in the Party which can no longer perform their original purpose in the Party nor
are capable of being restored or repaired and which are fit only for disposal or for the recovery of
parts or raw materials; (i)
scrap and waste derived from manufacturing or processing operations or from consumption in
the Party and fit only for disposal or for the recovery of raw materials; (j)
parts or raw materials recovered in the Party from articles which can no longer perform their
original purpose nor are capable of being restored or repaired; and (k)
_______________
297 Id.
680

ANNOTATED
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goods obtained or produced in the Party exclusively from the goods referred to in subparagraphs
(a) through (k) above. (l)
Annex 1298 of the JPEPA reduced the tariff rates for these goods to zero percent, below the minimum set forth in
the current Philippine schedule, JPEPA opponents point out. 299 There are allegations from the public that the above
provisions on trade of toxic and hazardous wastes were deleted in the working draft text of the JPEPA as of 21
April 2003, but these provisions found their way back into the final text signed by President Macapagal-Arroyo. If
true, it would be in the public’s interest to know why said provisions were put back, as they affect the public
welfare; and how it is in the Philippine interest to include them in the JPEPA.300

_______________
298 Some of these goods provided in Annex “1” of the JPEPA are the following:
Heading Description
No.
2620.60 Ash and residues (other than from the
00 manufacture of iron or steel) containing
arsenic, mercury, thallium or their
mixtures, of a kind used for the
extraction of arsenic or those metals or
for the manufacture of their chemical
compounds
2621.1000 Ash and residues from the incineration
of municipal waste
3006.80 Waste pharmaceuticals
3825.5000 Wastes of metal pickling liquors,
hydraulic fluids, brake fluids and anti-
freeze fluids
299 Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and
Committee on Trade and Commerce, 4 October 2007, p. 3.
300 Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and
Committee on Trade and Commerce, 4 October 2007, citing provisions of the working draft text of the JPEPA as of 21
April 2003 (accessed through the Philippine Institute for Development Studies, the government re-
681
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Various concerned sectors have also expressed their objection to some provisions of the JPEPA. A substantial
number of fishermen harp on the inadequacy of protection given to their sector and the violation of the Philippine
Constitution with respect to deep-sea fishing. In Annex 7, 2B (Schedule of the Philippines) 301 of the JPEPA, the
Philippine government made a reservation on national treatment by invoking Article 12 of the 1987 Constitution
under the heading: “Sector: Fisheries, Sub-sector: Utilization of Marine Resource.” 302 The measures invoked by the
Philippine government are: 1) no foreign participation is allowed for small-scale utilization of marine resources in
archipelagic waters, territorial sea and Exclusive Economic Zones; 2) for deep-sea fishing corporations, associations
or partnerships having a maximum 40
_______________
search institution tasked to study the JPEPA) and Article 29 of the JPEPA signed by President Gloria Macapagal-Arroyo.
301 Annex “7,” 2B of the JPEPA provides, viz.:
2B: Schedule of the Philippines
Sector: Fisheries 1.
Sub-Sector: Utilization of Marine Resource
Industry Classification:
Type of National Treatment (Article 89)
Reservation:
Measures: The Constitution of the Republic of the Philippines, Article XII
Description: 1. No foreign participation is allowed for small-scale utilization of marine resources in
archipelagic waters, territorial sea and exclusive economic zones.
2. For deep-sea fishing, corporations, associations or partnerships with maximum 40 percent foreign equity
can enter into coproduction, joint venture or production sharing agreement with the Philippine Government.
(emphasis supplied)
302 Position Paper of Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya), Hearing of the Senate
Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
682
ANNOTATED
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percent foreign equity can enter into co-production, joint venture or production-sharing agreement with the
Philippine government.303 Concerned sectors contend, however, that the second measure violates Article XII, Section
2 of the Philippine Constitution which mandates, without qualification, the protection of the nation’s marine wealth
in Philippine archipelagic waters, territorial sea and EEZ; and reserves “its use and enjoyment exclusively to
Filipino citizens.”304
The food sector also complains about the insufficiency of protection from export subsidies under Article 20 of
the JPEPA, which, according to it, makes it possible for Japan to engage in agriculture dumping, one of the most
trade-distorting practices of rich countries.305 Article 20 of the JPEPA, provides viz.:
Article 20
Export Duties
Each Party shall exert its best efforts to eliminate its duties on goods exported from the Party to the other
Party. (emphasis supplied)
This sector raises the objection that while the JPEPA only requires “best efforts,” both the Japan-Indonesia
Economic Partnership Agreement (JIEPA) and the Japan-Malaysia
_______________
303 Id.
304 Position Paper of Magkaisa Junk JPEPA Coalition, Hearing of the Senate Joint Committee on Foreign Relations
and Committee on Trade and Commerce, 14 September 2007, p. 14.
1987 Phil. Const. Art. XII, §2 provides in relevant part, viz.:
The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino citizens.
305 Position Paper of Task Force Food Sovereignty and the Magkaisa Junk JPEPA Coalition, Hearing of the Senate
Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
683
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Economic Partnership Agreement (JMEPA) disallow the introduction or the maintenance of agriculture export
subsidies.306
Without adjudging the merits of objections to the above provisions of the JPEPA, the fact that these concerns are
raised and that these provisions will impact on the lives of our people stress the need for an informed debate by the
public on the JPEPA. Rooted in the unique Philippine experience, the 1987 Constitution strengthened
participatory democracy not only in our political realm but also in the economic arena. Uninformed
participation in the governance of the country impairs the right of our people to govern their lives while
informed debate serves as the fountainhead from which truth and the best interest of the country will spring.
By upholding the constitutional right to information over the invocation of executive privilege in the instant
case, it is my considered view that the subject JPEPA documents should be disclosed considering the particular
circumstances of the case at bar. In arriving at this conclusion, a balancing of interests test has to be employed
which will allow the executive to show the public interest it seeks to protect in invoking executive privilege. The test
serves as a safeguard against disclosure of information that should properly be kept secret. There is thus no
foundation for the fears expressed in the Separate Opinion of Justice Tinga, viz.: “(The ruling) would establish a
general rule that diplomatic negotiations of treaties and other international agreements . . . belong to the public
record since it is encompassed within the constitutional right to information . . . if indeed the Philippines would
become unique among the governments of the world in establishing that these correspondences related to treaty
negotiations are part of the public record, I fear that such doctrine would impair the ability of the Philippines to

_______________
306 Id.

684
ANNOTATED
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negotiate treaties or agreements with foreign countries.” As afore-discussed, allowing public access to trade
agreement negotiations and draft texts, in various degrees and ways, has gained momentum in the landscape of U.S.
diplomatic and foreign relations. I submit that, when warranted, we must overcome the entropy of the old
tradition of secrecy.
Contrary to the Separate Opinion of Justice Tinga, the Executive as the custodian of records of negotiations of
treaties and other international agreements has the discretion to classify information as confidential in accordance
with applicable laws, and not let it become part of the public record of a government in the sunshine. But when the
executive is haled to court to enforce a constitutional right to this information, it is the court’s task in each
particular case to balance the executive’s need for secrecy in treaty negotiations with the constitutional right
to information, and decide whether that particular information should be disclosed or kept confidential. 307 Finally,
the discussion in the Separate Opinion of Justice Tinga on the application of Article 32, Supplementary Means of
Interpretation, of the Vienna Convention on the Law of Treaties308 and the question of whether the
_______________
307 This approach is similar to the observation in the Separate Opinion of Justice Tinga that it can be deduced from an
18 July 1997 decision of the International Criminal Tribunal for the former Yugoslavia that the “invocation of states
secrets cannot be taken at face value but must be assessed by the courts.”
308 The Vienna Convention on the Law of Treaties provides in Article 32, viz.:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 (General rule
of interpretation), or to determine the meaning when the interpretation according to article 31:
leaves the meaning ambiguous or obscure; or (a)
685
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Aquino
subject JPEPA documents constitute “preparatory work” under this provision are premature, as the Philippine
Senate has not concurred in the ratification of the JPEPA; hence, it has not entered into force. I submit that the
question is not relevant to the resolution of the case at bar, as we are not here engaged in an interpretation of the
JPEPA.
In sum, transparency and opacity are not either-or propositions in the conduct of international trade agreement
negotiations. The degree of confidentiality necessary in a particular negotiation is a point in a continuum where
complete disclosure and absolute secrecy are on opposite ends. 309 In assigning this fulcrum point, it is my humble
view that the Court should balance the need for secrecy of the Executive and the demand for information by the
legislature or the public. The balancing act in every case safeguards against disclosure of information prejudicial to
the public interest and upholds the fundamental principle enunciated in Senate v. Ermita310—that a claim of
executive privilege “may be valid or not depending on the ground invoked to justify it and the context in which
it is made.”311
We elevated the right to information to constitutional stature not without reason. In a democracy, debate
—by the people directly or through their representatives in Congress—is a discussion of and by the informed
and not an exchange of surpluses of ignorance.312 In the arena of economic governance, the right
_______________
(b) leads to a result which is manifestly absurd or unreasonable.
Law Review 679, 693 (2006).
310 G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006).
311 Id., at p. 51.
312 In the words of Thomas Jefferson, “if a nation expects to be ignorant and free in a state of civilization, it expects what
never was and will never be.” Letter from Thomas Jefferson to Colonel Charles
686
ANNOTATED
Aquino
to debate and participate is exercised not as an end in itself. Especially for the powerless whose sword and
shield against abuse is their voice, the exercise of the right is not merely rhetoric. It is a fight from the gut to
satisfy basic human needs and lead a humane life.
I vote to grant the petition.
Petition dismissed.
G.R. No. 169777. April 20, 2006.

* **
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President,
JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity
as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO
G. BIAZON, “COMPAÑERA” PIA S. CAYETANO, JINGGOY EJERCITO
_______________
Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a government
*
official or agency, the petitioner which is the most directly affected by the issuance shall be first in the order of
enumeration of the titles of the petitions irrespective of their docket numbers or dates of filing.
EN BANC.
**
2
Senate of the Philippines vs. Ermita
ESTRADA, LUISA “LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO
M. LACSON, ALFREDO S. LIM, M.A. MADRIGAL, SERGIO OSMEÑA III, RALPH G. RECTO, and MAR
ROXAS, petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines,
respondents.
G.R. No. 169659. April 20, 2006.*

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASIÑO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) represented by ATTY. REMEDIOS BALBIN, petitioners, vs. EDUARDO ERMITA, in his capacity as
Executive Secretary and alter ego of President Gloria Macapagal-Arroyo, respondent.
G.R. No. 169660. April 20, 2006.*

FRANCISCO I. CHAVEZ, petitioner, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as
AFP Chief of Staff, respondents.
G.R. No. 169667. April 20, 2006.*

ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. HON. EDUARDO R. ERMITA, in his capacity as
Executive Secretary, respondent.
G.R. No. 169834. April 20, 2006.*

PDP-LABAN, petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, respondent.
3
VOL. 488, APRIL 20, 2006 3
G.R. No. 171246. April 20, 2006.*
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO,
ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES,
petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, respondent.
Constitutional Law; Republicanism; Public Officers; Public Accountability and Transparency; Right to Information; A
transparent government is one of the hallmarks of a truly republican state; History has been a witness to the fact that the power
to withhold information lends itself to abuse, hence, the necessity to guard it zeal-ously .—A transparent government is one of the
hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the
head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: “Decision,
activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” History has
been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it
zealously.
Same; Judicial Review; Requisites.—Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case.
4

ANNOTATED
Same; Same; Executive Order No. 464 (E.O. 464); Locus Standi; Legislators; The Senate, including its individual
members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464; Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators.—That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for sound legislation is not disputed. E.O. 464,
however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. Verily, the
Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the
proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official
action which they claim infringes their prerogatives as legislators.
Same; Same; Same; Same; Same; Party-list representatives likewise are allowed to sue to question the constitutionality
of E.O. 464, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members
of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws.—In the
same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casiño (Bayan Muna), Joel Virador (Bayan Muna),
Crispin Beltran (Anak-pawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the
constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its
committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O.
464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws.
5
VOL. 488, APRIL 20, 2006

Same; Same; Same; Same; Same; A national political party likewise meets the standing requirement, provided that it has
obtained three seats in the House of Representatives in a national elections, which entitles it to participate in the legislative
process.—The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with
the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to contribute to the formulation and enactment of
legislation that will benefit the nation. As Bayan Muna and Representatives Ocampo, et al. have the standing to file their
petitions, passing on the standing of their co-petitioners COURAGE and CODAL is rendered unnecessary.
Same; Same; Same; Same; Same; Citizen Suits; It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal.—It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives, 415
SCRA 44, 136 (2003), this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal interest.
Same; Same; Same; Same; Political Parties; The allegation that E.O. 464 hampers a political party’s legislative agenda
is vague and uncertain, and at best is only “generalized interest” which it shares with the rest of the political parties; Concrete
injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form
traditionally capable of judicial resolution.—As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in
view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis.
For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the
funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or
statu-
6

ANNOTATED
tory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a
more direct and specific interest in raising the questions being raised. The first and last determinants not being present as no
public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the
resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers
its legislative agenda is vague and uncertain, and at best is only a “generalized interest” which it shares with the rest of the
political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to
cast it in a form traditionally capable of judicial resolution. In fine, PDP-Laban’s alleged interest as a political party does not
suffice to clothe it with legal standing.
Same; Same; Same; Case or Controversy Requirement; E.O. 464 does not require either deliberate withholding of
consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress; It would
be a sheer abandonment of duty if the Supreme Court would refrain from passing on the constitutionality of E.O. 464 .—The
Court finds respondents’ assertion that the President has not withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O.
464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to
bar officials from appearing before Congress. As the implementation of the challenged order has already resulted in the absence
of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event
before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now
refrain from passing on the constitutionality of E.O. 464.
Same; Presidency; Congress; Separation of Powers; Checks and Balances; Power of Inquiry; Congress has authority to
inquire into the operations of the executive branch, and its power of inquiry extends to executive officials who are the most
familiar with and informed on executive operations.—Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not extend to execu-
7
VOL. 488, APRIL 20, 2006

tive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of
inquiry, “with process to enforce it,” is grounded on the necessityof information in the legislative process. If the information
possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure thereof.
Same; Same; Same; Same; Same; Same; Executive Privilege;Even where the inquiry is in aid of legislation, there are
still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.” —Even
where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall
under the rubric of “executive privilege.” Since this term figures prominently in the challenged order, it being mentioned in its
provisions, its preambular clauses, and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Same; Same; Executive Privilege; Words and Phrases; The phrase “executive privilege” is not new in this jurisdiction;
Executive privilege has been defined as “the power of the Government to withhold information from the public, the courts, and
the Congress,” as well as “the right of the President and high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public.”—The phrase “executive privilege” is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it
has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as “the power of the
Government to withhold information from the public, the courts, and the Congress.” Similarly, Rozell defines it as “the right of
the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the
public.” Executive privilege is, nonetheless, not a clear or unitary concept.It has encompassed claims of varying kinds. Tribe, in
fact, comments that while it is customary to employ the phrase “executive privilege,” it may be more accurate to speak of
executive privileges “since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of
considerations, and may be
8

ANNOTATED
asserted, with differing degrees of success, in the context of either judicial or legislative investigations.”
Same; Same; Same; Varieties of Executive Privilege.—One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its
disclosure would subvert crucial military or diplomatic objectives.Another variety is the informer’s privilege, or the privilege of
the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental
documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.
Same; Same; Same; In determining the validity of a claim of privilege, the question that must be asked is not only whether
the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a
given procedural setting.—That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege
should be honored in a given procedural setting.
Same; Same; Same; Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only
in relation to certain types of information of a sensitive character; The extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive secrecy and in favor of disclosure.—From the above discussion on the
meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information
9
VOL. 488, APRIL 20, 2006

by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure.
Same; Same; Same; Congress; Power of Inquiry; Question Hour; In the context of a parliamentary system of
government, the “question hour” has a definite meaning—it is a period of confrontation initiated by Parliament to hold the
Prime Minister and the other ministers accountable for their acts and the operation of the government, corresponding to what is
known in Britain as the question period.—In the context of a parliamentary system of government, the “question hour” has a
definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the government, corresponding to what is known in Britain as the question period.
There was a specific provision for a question hour in the 1973 Constitution which made the appearance of ministers mandatory.
The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is
the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime
Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this
confidence is lost the Prime Minister and the Cabinet may be changed.
Same; Same; Same; Same; Same; Same; Separation of Powers; The framers of the 1987 Constitution removed the
mandatory nature of appearance by department heads during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers.—The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers.
To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not
10

0 ANNOTATED
be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit
information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce
Congress’ right to executive information in the performance of its legislative functionbecomes more imperative.
Same; Same; Same; Same; Same; When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom,
as Chief Executive, such department heads must give a report of their performance as a matter of duty, but when the inquiry in
which Congress requires their appearance is “in aid of legislation” under Section 21, Article VI of the Constitution, the
appearance is mandatory for the same reasons stated in Arnault v. Nazareno, 87 Phil. 29 (1950); The oversight function of
Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.—Sections 21
and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same
power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress’ oversight function. When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that Congress may only requesttheir appearance.
Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the
appearance is mandatory for the same reasons stated in Arnault. In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
11
VOL. 488, APRIL 20, 2006 1

1
Same; Same; Same; Same; Same; When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege—they are not exempt by the mere fact that they are department
heads.—Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When
Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted
from this power—the President on whom executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-
equal branch of government which is sanctioned by a long-standing custom. By the same token, members of the Supreme Court
are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each
member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during
the oral argument upon interpellation of the Chief Justice.
Same; Same; Same; Same; Same; Executive Order No. 464; Section 1 of E.O. 464, in view of its specific reference to
Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed
as limited in its application to appearances of department heads in the question hour contemplated in said Section 22, but could
not be applied to appearances of department heads in inquiries in aid of legislation; The requirement to secure presidential
consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. —Section 1, in view of its
specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of
legislation, must be construed as limited in its application to appearances of department heads in the question
hourcontemplated in the provision of said
12

2 ANNOTATED
Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as
much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1,
limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution,
the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot, however, be applied to
appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal
of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President
herself or by the Executive Secretary.
Same; Same; Same; Same; Same; Words and Phrases; Execu-tive privilege is properly invoked in relation to specific
categories of information and not to categories of persons; The reference in Sec. 2(b) of E.O. 464 to persons being “covered by
the executive privilege” may be read as an abbreviated way of saying that the person is in possession of information which is, in
the judgment of the head of office concerned, privileged as defined in Section 2(a). —Section 3 of E.O. 464 requires all the public
officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The
enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior
national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads,
Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.” The
enumeration also includes such other officers as may be determined by the President. Given the title of Section 2—“Nature,
Scope and Coverage of Executive Privilege”—, it is evident that under the rule of ejusdem generis, the determination by the
President under this provision is intended to be based on a similar finding of coverage under executive privilege. En passant, the
Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the
doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to
categories of persons. In light, however, of Sec. 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive
privilege, the reference to persons being “covered by the executive privilege” may be read as an abbre-
13
VOL. 488, APRIL 20, 2006 1

3
viated way of saying that the person is in possession of information which is, in the judgment of the head of office
concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.
Same; Same; Same; Same; Same; While there is no Philippine case that directly addresses the issue whether executive
privilege may be invoked against Congress, it is gathered from Chavez v. Public Estates Authority, 384 SCRA 152 (2002), that
certain information in the possession of the executive may validly be claimed as privileged even against Congress, such as
Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings.—While there is no Philippine
case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez
v. Public Estates Authority, 384 SCRA 152, 189 (2002), that certain information in the possession of the executive may validly
be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded
by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of
the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the
situation in the instant case. (Emphasis and italics supplied) Section 3 of E.O. 464, therefore, cannot be dismissed outright as
invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.
Same; Same; Same; Same; Same; While the validity of claim of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied privilege, a defect
that renders it invalid per se; Certainly, Congress has the right to know why the executive
14

4 ANNOTATED
considers the requested information privileged; A claim of privilege, being a claim of exemption from an obligation to
disclose information, must be clearly asserted.—While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of
privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive
Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation
of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged
order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even
intended to be comprehensive, but a mere statement of what is included in the phrase “confidential or classified information
between the President and the public officers covered by this executive order.” Certainly, Congress has the right to know why the
executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves
Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms
that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it with the information that it has requested. A claim of
privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted.
Same; Same; Same; Same; Same; Separation of Powers; Due respect for a co-equal branch of government demands no
less than a claim of privilege clearly stating the grounds therefor.—Due respect for a co-equal branch of government, moreover,
demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S.,
364 U.S. 372, 81 S.Ct. 138, 5 L.Ed. 2d 136 (1960): We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S.
Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for
failing to produce the records of
15
VOL. 488, APRIL 20, 2006 1

5
the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would
have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given
the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. ‘To
deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an
obstruction of its processes. His failure to make any such statement was “a patent evasion of the duty of one summoned to
produce papers before a congressional committee[, and] cannot be condoned.”
Same; Same; Same; Same; Same; Same; 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.—Upon the other hand,
Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. A useful analogy in determining the requisite degree of particularity would
be the privilege against self-incrimination. Thus, Hoffman v. U.S. declares: “The witness is not exonerated from answering
merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of
incrimination. It is for the court to say whether his silence is justified, and to require him to answer if ‘it clearly appears
to the court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to prove the hazard in the
sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.” x x x
Same; Same; Same; Same; Same; The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is invalid
per se since it is not asserted but merely implied.—The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b)
is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise
16

6 ANNOTATED
and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under
the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O.
464 must be invalidated.
Same; Same; Same; Same; Same; No infirmity can be imputed to Section 2(a) of E.O. 464 as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege .—No
infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches
of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of
Same; Same; Same; Right to Information; The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.—Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to bear the President’s authority and has the
effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that
it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere
silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high
degree as to
17
VOL. 488, APRIL 20, 2006 1

7
outweigh the public interest in enforcing that obligation in a particular case.
Same; Same; Same; Delegation of Powers; In light of the highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege, though she may authorize the Executive Secretary to invoke
the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the President,”
which means that he personally consulted with her.—In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the
President,” which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded
only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
Same; Same; Same; Separation of Powers; When an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege.—When an official is being summoned by Congress on a
matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive
privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
18

8 ANNOTATED
Same; Same; Same; Executive Order No. 464; Section 3 of E.O. 464 is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated—that such authorization is partly motivated by the need to ensure
respect for such officials does not change the infirm nature of the authorization itself.—The Court notes that one of the expressed
purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure “respect for the
rights of public officials appearing in inquiries in aid of legislation.” That such rights must indeed be respected by Congress is an
echo from Article VI Section 21 of the Constitution mandating that “[t]he rights of persons appearing in or affected by such
inquiries shall be respected.” In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the
need to ensure respect for such officials does not change the infirm nature of the authorization itself.
Same; Same; Same; Same; Right to Information; Power of Inquiry; There are clear distinctions between the right of
Congress to information which underlies the power of inquiry and the right of the people to information on matters of public
concern.—There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of
inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government
officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of
representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.
Same; Same; Same; Same; Same; To the extent that investigations in aid of legislation are generally conducted in public,
any executive issuance tending to unduly limit disclosures of information which being presumed to be in aid of legislation, is
presumed to be a matter of public concern.—To the extent that investigations in aid of legislation are generally conducted in
public, however, any executive issuance tending to unduly limit disclosures of information in such
19
VOL. 488, APRIL 20, 2006 1

9
investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter before Congress—opinions which they can then communicate to their
representatives and other government officials through the various legal means allowed by their freedom of expression. Thus
holds Valmonte v. Belmonte, 170 SCRA 256 [1989]: It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people’s will. Yet, this
open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear
fruit.(Emphasis and italics supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry.
Same; Same; Same; Same; Same; Publication; Due Process;While E.O. 464 applies only to officials of the executive
branch, it does not follow that the same is exempt from the need for publication—it is a matter of public interest which members
of the body politic may question before the Supreme Court; Due process requires that the people should have been apprised of
this issuance before it was implemented.—While E.O. 464 applies only to officials of the executive branch, it does not follow that
the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to
people in general, Tañada v. Tuvera, 146 SCRA 446 (1986), states: The term “laws” should refer to all laws and not only to those
of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionablydoes not
apply directly to all the people. The subject of suchlaw is a matter of public interest which any member of thebody politic may
question in the political forums or, if he is a proper party, even in courts of justice. (Emphasis and italics sup-
20

0 ANNOTATED
plied) Although the above statement was made in reference to statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information
on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before
this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.
Republicanism; Right to Information; What republican theory did accomplish was to reverse the old presumption in favor
of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the
doctrine of popular sovereignty.—The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By
the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That
is impermissible. For “[w]hat republican theory did accomplish . . . was to reverse the old presumption in favor of secrecy, based
on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Italics supplied)” Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into
the operations of government, but we shall have given up something of much greater value—our right as a people to take part in
government.

Orlando E. Mendiola for petitioners in G.R. No. 171246.
Francisco I. Chavez for and in his own behalf in G.R. No. 169660.
Melizel F. Asuncion, Raoul P. Barbarona, Raissa H. Jajurie, Carlos P. Medina, Jr., Ma. Lourdes Zerelda S.
Pacu-
21
VOL. 488, APRIL 20, 2006 21
ribot and Marlon J. Manuel for petitioner ALG in G.R. No. 169667.
Luis Ma. Gil L. Gana for petitioners in G.R. No. 169834.
Neri Javier Colmenares for petitioners in G.R. No. 169659.
Pacifico A. Agabin for petitioner in G.R. No. 169777.
Aquilino LL. Pimentel III for petitioner in G.R. No. 169834.
The Solicitor General for respondent.
David Jonathan V. Yap for Senate of the Philippines.
CARPIO-MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential in
pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said: “Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any
greater number; and in proportion as the number is increased, these qualities will be diminished.” 1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse,
hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power
by issuing Executive Order No. 464 (E.O. 464) last September
_______________
HAMILTON, THE FEDERALIST No. 70.

1
22
28, 2005. They thus pray for its declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has
come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once
the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any
issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and offices including those employed in Government Owned and
Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of
the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations dated September 22, 2005
2
to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
_______________
2
Annexes “J-2” to “J-7,” Rollo (G.R. No. 169777), pp. 72-77.
23
VOL. 488, APRIL 20, 2006 23
Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP
Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen.
Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them
to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has Provided Smoking Gun
or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005”; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled “The Philippines as the Wire-
Tapping Capital of the World”; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005
entitled “Clear and Present Danger”; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
—Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, and in the National Interest, on the Role of the Military in the So-called “Gloriagate Scandal”; and (5)
Senate Resolution No. 295 filed by Senator Biazon—Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, on the WireTapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter dated September 27, 2005, requested for its postponement “due to a pressing
3
operational situation that demands [his] utmost personal attention” while “some of the invited AFP officers are
currently attending to other urgent operational matters.”
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R.
Ermita
_______________
3
Annex “G,” Id., at p. 58.
24
a letter dated September 27, 2005 “respectfully request[ing] for the postponement of the hearing [regarding the
4
NorthRail project] to which various officials of the Executive Department have been invited” in order to “afford said
officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation.”
Senate President Drilon, however, wrote Executive Secretary Ermita that the Senators “are unable to accede to
5
[his request]” as it “was sent belatedly” and “[a]ll preparations and arrangements as well as notices to all resource
persons were completed [the previous] week.”
Senate President Drilon likewise received on September 28, 2005 a letter from the President of the North Luzon
6
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been
secured.
On September 28, 2005, the President issued E.O. 464, “ENSURING OBSERVANCE OF THE PRINCIPLE
OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT
FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” which, pursuant to Section 6
7
thereof, took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress.—In accordance with Article VI,
Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all
_______________
4
Annex “B,” Id., at p. 52.
5
Annex “C,” Id., at p. 53.
6
Annex “D,” Id., at pp. 54-55.
7
Annex “A,” Id., at pp. 48-51.
25
VOL. 488, APRIL 20, 2006 25
heads of departments of the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing,
the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.—
(a) Nature and Scope.—The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution ( Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995, 244 SCRA 286). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the
public officers covered by this executive order, including:
1. i.Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002, 384 SCRA 152);
2. ii.Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998, 299
SCRA 744).
3. iii.Information between inter-government agencies prior to the conclusion of treaties and
executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998, 299 SCRA 744);
4. iv.Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998, 299 SCRA 744);
26
1. v.Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R.
No. 133250, 9 July 2002, 299 SCRA 744).
(b) Who are covered.—The following are covered by this ex-ecutive order:
1. i.Senior officials of executive departments who in the judgment of the department heads are

covered by the executive privilege;
2. ii.Generals and flag officers of the Armed Forces of the Philippines and such other officers who
in the judgment of the Chief of Staff are covered by the executive privilege;
3. iii.Philippine National Police (PNP) officers with rank of chief superintendent or higher and such
other officers who in the judgment of the Chief of the PNP are covered by the ex-ecutive
privilege;
4. iv.Senior national security officials who in the judgment of the National Security Adviser are
covered by the execu-tive privilege; and
5. v.Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress.—All public officials

enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing
before either House of Congress to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and italics supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464,
and another letter informing him “that officials of the Execu-tive Department invited to appear at the meeting
8
[regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to
[E.O. 464]”
_______________
8
Annex “F,” Id., at p. 57.
27
VOL. 488, APRIL 20, 2006 27
and that “said officials have not secured the required consent from the President.” On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter to Senator Biazon, Chairperson of
9
the Committee on National Defense and Security, informing him “that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President” and “that no approval has been granted by the
President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and
Security scheduled [on] 28 September 2005.”
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to
face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O.
464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway
Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto
Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel
Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager
_______________
9
Annex “H,” Id., at p. 59.
28
Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson
Gen. Narciso Abaya and Secretary Romulo L. Neri. NorthRail President Cortes sent personal regrets likewise citing
10
E.O. 464. 11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo,
Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casiño, COURAGE, an organization of
government employees, and Counsels for the Defense of Liberties (CO-DAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the
transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for
being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-
ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their
rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464
infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O.
464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws; COURAGE alleges that the tenure of its members in
public office is predicated on, and threatened by, their submission to the require-
_______________
Rollo (G.R. No. 169777), p. 379.

10
Ibid.
11
29
VOL. 488, APRIL 20, 2006 29
ments of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty
to uphold the rule of law, and their rights to information and to transparent governance are threatened by the
imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer
and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null
and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc. (ALG), alleging that as a coalition of 17 legal
12
resource non-governmental organizations engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part
of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on
matters of public concern, a
_______________
12
The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc.
(ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC),
Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Children’s Legal Bureau
(CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation, Economic, Education and Legal
Assistance Volunteers Association, Inc. (FREELAVA), Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang
Pansakahan (KAISAHAN), Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-
Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research
Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc.,
Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng
Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Women’s Legal Bureau (WLB), and Women’s Legal
Education, Advocacy and Defense Foundation, Inc. (WomenLEAD).
30
right which was denied to the public by E.O. 464, prays, that said order be declared null and void for being
13
unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of
the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained
the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the
Senate’s powers and functions and conceals information of great public interest and concern, filed its petition for
certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine
Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No.
169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and
transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative
branches of the government.
Meanwhile, by letter dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and
14
other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga
replied, however, by letter dated February 8, 2006, that “[p]ursuant to Executive Order No. 464, th[e] Headquarters
15
requested for a clearance from the President to allow [them] to appear before the public hearing” and that “they will
attend once [their]
_______________
Rollo (G.R. No. 169667), p. 22.

13
Annex “H,” Id., at pp. 460-461.

14
Annex “H-1,” Id., at p. 462.

15
31
VOL. 488, APRIL 20, 2006 31
request is approved by the President.” As none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue
Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang
Aniprogram of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled
on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana, and those from the Department of Budget and Management having invoked E.O. 464.
17 18
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye, DOJ Secretary Raul M. Gonzalez and Department of Interior and Local
19 20
Government Undersecretary Marius P. Corpus communicated their inability to attend due to lack of appropriate
21
clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization
of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed
their petition for certiorari
_______________
Rollo (G.R. No. 169777), pp. 383-384.

16
Annex “K,” Rollo (G.R. No. 169777), p. 466.

17
Annex “J,” Id., at p. 465.

18
Annex “M,” Id., at p. 468.

19
Annex “N,” Id., at p. 469.

20
Annex “O,” Id., at p. 470.

21
32
and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI,
Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual
case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in
their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda,
paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2)
assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam;
(b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable
contract.22
Petitioners in G.R. No. 169660 and G.R. No. 169777 filed their memoranda on March 7, 2006, while those in
23 24
G.R. No. 169667 and G.R. No. 169834 filed theirs the next day or on
25 26
_______________
Court En Banc Resolution dated February 21, 2006, Rollo (G.R. No. 169659), pp. 370-372.
22
Rollo (G.R. No. 169660), pp. 339-370.

23
Rollo (G.R. No. 169777), pp. 373-439.

24
Rollo (G.R. No. 169667), pp. 388-426.

25
Rollo (G.R. No. 169834), pp. 211-240.

26
33
VOL. 488, APRIL 20, 2006 33
March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna, et al. in G.R. No. 169659, after their motion for extension to file memorandum was 27
granted, subsequently filed a manifestation dated March 14, 2006 that it would no longer file its memorandum in
28
the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 21 30
Art. VI, Sec. 22 31
Art. VI, Sec. 1 32
_______________
Rollo (G.R. No. 169659), pp. 419-421.

27
Id., at pp. 469-471.

28
Court En Banc Resolution dated March 21, 2006, Rollo (G.R. No. 169659), pp. 570-572.
29
Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid
30
of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
Sec. 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the
31
request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto. When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall be conducted in executive session.
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
32
House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
34
Art. XI, Sec. 1 33
Art. III, Sec. 7 34
Art. III, Sec. 4 35
Art. XIII, Sec. 16 36
Art. II, Sec. 28 37
Respondents Executive Secretary Ermita, et al., on the other hand, pray in their consolidated memorandum on 38
March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. 1.Whether E.O. 464 contravenes the power of inquiry vested in Congress;
_______________
33
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.
34
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.
35
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
36
Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of
social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment
of adequate consultation mechanisms.
37
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.
38
Rollo (G.R. No. 169777), pp. 524-569.
35
VOL. 488, APRIL 20, 2006 35
1. 2.Whether E.O. 464 violates the right of the people to information on matters of public concern; and
2. 3.Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to
its publication in a newspaper of general circulation.
Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites
for a valid exercise of the Court’s power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case. 39
Except with respect to the requisites of standing and existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667
make it clear that they, adverting to the non-appearance of several officials of the executive department in the
investigations
_______________
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
39
36
called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or
its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They
maintain that Representatives Ocampo, et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any
investigation called by the House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the marginalized and underrepresented, and
that of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the
Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties
“injured-infact.”
40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct
injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to
assail the constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin and Valmonte v.
42
Philippine Charity Sweepstakes Office, respondents assert that to be

43
_______________
Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), Rollo (G.R. No. 169777), p. 116.
40
Citing Lim v. Hon. Exec. Sec., 430 Phil. 555; 380 SCRA 739 (2002), Rollo (G.R. No. 169777), p. 116.
41
G.R. No. 67752, April 10, 1989, 171 SCRA 657.

42
G.R. No. 78716, September 22, 1987 (res).

43
37
VOL. 488, APRIL 20, 2006 37
considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or
will sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-
making in a democratic system, but more especially for sound legislation is not disputed. E.O. 464, however,
45
allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. Verily,
46
the Senate, including its individual members, has a substantial and direct interest over the outcome of the
controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed
to sue to question the validity of any official action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casiño (Bayan Muna), Joel
Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by
the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in
the
_______________
Rollo (G.R. No. 169777), p. 117.

44
Id., at p. 279.
45
Ibid.
46
Pimentel, Jr. v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622, 631-632.
47
38
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized
and underrepresented sectors, organizations and parties who lack welldefined political constituencies to contribute to
the formulation and enactment of legislation that will benefit the nation. 48
As Bayan Muna and Representatives Ocampo, et al. have the standing to file their petitions, passing on the
standing of their co-petitioners COURAGE and CODAL is rendered unnecessary. 49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members, invoke their 50
constitutional right to
_______________
Section 2 of The Party-List System Act (Republic Act 7941) reads:

48
SEC. 2. Declaration of Policy.—The State shall promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in
the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest
scheme possible.
Chavez v. Presidential Commission on Good Government, G.R. No. 130716, December 9, 1998, 299 SCRA 744,
49
761 (1998).
IBP Board of Governors Resolution No. XVII-2005-18, Rollo (G.R. No 171246), p. 28.
50
39
VOL. 488, APRIL 20, 2006 39
information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464,
is essential to the effective exercise of other constitutional rights and to the maintenance of the balance of power
51
among the three branches of the government through the principle of checks and balances. 52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of
laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives, this Court held that when the proceeding involves the assertion of a public right, the mere fact that
53
he is a citizen satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental
issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be
accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the
funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3)
the lack of any party with a more direct and specific interest in raising the questions being raised. The first and last
54
determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777and
169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of
standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at
best is only a “generalized interest” which it shares
_______________
Rollo (G.R. No. 169667), p. 3.

51
Rollo (G.R. No. 169660), p. 5.

52
53
Francisco, Jr. v. House of Representatives, supra note 39 at p. 139.

54
40
with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a
dispute which serves in part to cast it in a form traditionally capable of judicial resolution. In fine, PDP-Laban’s
55
alleged interest as a political party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to
its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has
actually withheld her consent or prohibited the appearance of the invited officials. These officials, they
56
claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the
President prohibited their attendance. Specifically with regard to the AFP officers who did not attend the hearing
57
on September 28, 2005, respondents claim that the instruction not to attend without the President’s consent was
based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will
abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not withheld her consent or prohibited the
appearance of the officials concerned immaterial in determining the exis-
_______________
Lozada v. Commission on Elections, 205 Phil. 283, 287; 120 SCRA 337, 342 (1983).
55
Rollo (G.R. No. 169659), p. 79.

56
Rollo (G.R. No. 169659), pp. 80-81.

57
41
VOL. 488, APRIL 20, 2006 41
tence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a
deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited to the
hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court
would now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as
the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be respected. (Italics supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it
vests the power of inquiry in the unicameral legislature established therein—the Batasang Pambansa—and its
committees.
42
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, a case decided in
58
1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy,
was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s power to punish
Arnault for contempt, this Court held:
“Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry—with process to enforce it—is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is intended to affect or change; and
where the legislative body does not itself possess the requisite information—which is not infrequently—
recourse must be had to others who do possess it. Experience has shown that mere requests for such
information are often unavailing, and also that information which is volunteered is not always accurate
or complete; so some means of compulsion is essential to obtain what is needed.” . . . (Emphasis and
59
italics supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive
_______________
87 Phil. 29 (1950).

58
Supra at p. 45, citing McGrain v. Daugherty, 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).
59
43
VOL. 488, APRIL 20, 2006 43
with the power to legislate. The matters which may be a proper subject of legislation and those which may be a
60
proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a
proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress
is the guardian, the transaction, the Court held, “also involved government agencies created by Congress and
officers whose positions it is within the power of Congress to regulate or even abolish.”
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to
hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress
to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of
the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of
61
legis-
_______________
Id., at p. 46.
60
G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

61
44
lation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parentheti-cally, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation
on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected,
even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting
in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In
such instances, depending on the particulars of each case, attempts by the Ex-ecutive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry,
which exemptions fall under the rubric of “executive privilege.” Since this term figures prominently in the
challenged order, it
45
VOL. 488, APRIL 20, 2006 45
being mentioned in its provisions, its preambular clauses, and in its very title, a discussion of executive privilege is
62
crucial for determining the constitutionality of E.O. 464.

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

Schwartz defines executive privilege as “the power of the Government to withhold information from the public,
the courts, and the Congress.” Similarly, Rozell defines it as “the right of the President and high-level executive
64
branch officers to withhold information from Congress, the courts, and ultimately the public.” 65
_______________
62
“WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to
explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the operation
of the government and is rooted in the separation of powers under the Constitution;
xxxx
“WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as
well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle
of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in
such inquiries in aid of legislation and due regard to constitutional mandate; x x x”
63
II Record, CONSTITUTIONAL COMMISSION 150-151 (July 23, 1986).
64
B. SCHWARTZ, EXECUTIVE PRIVILEGE AND CONGRESSIONAL INVESTIGATORY POWER, 47 Cal. L. Rev.
3.
65
M. ROZELL, Executive Privilege and the Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069).
46
Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying
66
kinds. Tribe, in fact, comments that while it is customary to employ the phrase “executive privilege,” it may be more
67
accurate to speak of executive privileges “since presidential refusals to furnish information may be actuated by any
of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations.”
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning
with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the informer’s privilege, or the privilege of the Government
not to disclose the identity of persons who furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

“Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the executive
had a right to withhold documents that might reveal military or state secrets. The
_______________
66
P. SHANE & H. BRUFF, SEPARATION OF POWERS: LAW CASES AND MATERIALS 292 (1996).
67
Id., at p. 293.
68
I L.TRIBE, AMERICAN CONSTITUTIONAL LAW 770-1 (3rd ed., 2000).
47
VOL. 488, APRIL 20, 2006 47
courts have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x” (Emphasis and italics supplied)
69
The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding the scope of the
doctrine.
“This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary citizen or organization where such exemption
is necessary to the discharge of highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that
is, those documents reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.” (Emphasis and italics supplied)
70
That a type of information is recognized as privileged does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must
be asked is not only whether the requested information falls within one of the traditional privileges, but also whether
that privilege should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, decided in 1974. In issue in that
72
case was the validity of President Nixon’s claim of executive privilege against a subpoena issued by a district court
requiring
_______________
121 F.3d 729, 326 U.S. App. D.C. 276.

69
BLACK’S LAW DICTIONARY 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp.
70
of America, D.C.D.C., 371 F.Supp. 97, 100.

I L.TRIBE, supra note 68 at p. 771.
71
418 U.S. 683 (1974)

72
48
the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was
based on the President’s general interest in the confidentiality of his conversations and correspondence. The U.S.
Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is
constitutionally based to the extent that it relates to the effective discharge of a President’s powers. The Court,
nonetheless, rejected the President’s claim of privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there
addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent
73
assertion of the privilege to deny information to Congress, beginning with President Washington’s refusal to turn
over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the
issue. However, the
74
_______________
In re Sealed Case 121 F.3d 729, 326 U.S. App. D.C. 276 (1997) states: “It appears that the courts have been drawn
73
into executive-congressional privilege disputes over access to information on only three recent occasions. These
were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977); Senate
Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d 725 (D.C. Cir.
1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983)”; Vide R. IRAOLA, Congressional
Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and
Prosecutions(87 Iowa L. Rev. 1559): “The Supreme Court has yet to rule on a dispute over information requested by
Congress where executive privilege has been asserted; in the past twenty-five years, there have been only three reported
cases dealing with this issue.”
J. CHAPER & R. FALLON, JR., CONSTITUTIONAL LAW: CASES COMMENTS QUESTIONS 197 (9th ed., 2001).
74
49
VOL. 488, APRIL 20, 2006 49
U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon,
recognized the President’s privilege over his conversations against a congressional subpoena. Anticipating the
75
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling
that the balance favored the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion
77
of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of hisconversations and correspondences, like the
claim of confidentiality of judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be
_______________
75
Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C.183 (May 23,
1974).
76
N. REDLICH & B. SCHWARTZ, CONSTITUTIONAL LAW 333 (3rd ed., 1996) states in Note 24: “Now that the Supreme
Court decision has specifically recognized a ‘privilege of confidentiality of Presidential communications,’ the Select
Committee decision appears even stronger. If the need of the Watergate Committee for evidence was not enough before the
Supreme Court recognized executive privilege, the same would surely have been true after the recognition. And, if the demand of
the Watergate Committee, engaged in a specific investigation of such importance, was not enough to outweigh the nondisclosure
claim, it is hard to see what Congressional demand will fare better when met by an assertion of privilege.”
77
314 Phil. 150; 244 SCRA 286 (1995).
50
unwilling to express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and italics
supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court
78
recognized that there are certain types of information which the government may withhold from the public, thus
acknowledging, in substance if not in name, that executive privilege may be claimed against citizens’ demands for
information.
In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a
79
“governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and
other national security matters.” The same case held that closed-door Cabinet meetings are also a recognized
80
limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority, the Court ruled that the right to information does not extend to
81
matters recognized as “privileged information under the separation of powers,” by which the Court meant
82
Presidential conversations, correspondences, and discussions in closed-door Cabinet

_______________
78
Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166; 244 SCRA 286, 293 (1995) states: “To put this case in
perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the
freedom of information guarantee of the Constitution.”
79
360 Phil. 133; 299 SCRA 744 (1998).
80
Chavez v. Presidential Commission on Good Government, 360 Phil. 133, 160; 299 SCRA 744, 770 (1998).
81
433 Phil. 506; 384 SCRA 152 (2002).
82
Chavez v. Public Estates Authority, 433 Phil. 506, 534; 384 SCRA 152, 188 (2002).
51
VOL. 488, APRIL 20, 2006 51
meetings. It also held that information on military and diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement agencies before the prosecution of the accused were
exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify
it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of
disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the
President prior to appearing before Congress. There are significant differences between the two provisions, however,
which constrain this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by
any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not
made to depend on the department heads’ possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no
52
reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI,
Section 22 of the Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the President,
or upon the request of either House, as the rules of each House shall provide, appear before and be heard
by such House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI.
Section 22 which provides for the question hour must be interpreted vis-à-vis Section 21 which provides for the
power of either House of Congress to “conduct inquiries in aid of legislation.” As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved
distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa—as the Gentleman himself has
experienced in the interim Batasang Pambansa—one of the most competent inputs that we can put in our
committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
53
VOL. 488, APRIL 20, 2006 53
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the
Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested
under Section 22] does not mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez, that is allowed and their presence can be had under
Section 21. Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in
contempt of the House. (Emphasis and italics supplied)
83
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of
department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style,
precisely in recognition of this distinction, later moved the provision on question hour from its original position as
Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This
gave rise to the following exchange during the deliberations:
_______________
II RECORD, CONSTITUTIONAL COMMISSION 199 (July 24, 1986).

83
54
ANNOTATED
MR. [speaking in his capacity as
GUINGONA. Chairman of the Committee on
Style] We now go, Mr. Presiding
Officer, to the Article on
Legislative and may I request the
chairperson of the Legislative
Department, Commissioner
Davide, to give his reaction.
THE Commissioner Davide is
PRESIDING recognized.
OFFICER (Mr.
Jamir).
MR. DAVIDE. Thank you, Mr. Presiding
Officer. I have only one reaction
to the Question Hour. I propose
that instead of putting it
as Section 31, it should follow
Legislative Inquiries.
THE What does the committee say?
PRESIDING
OFFICER.
MR. I ask Commissioner Maambong
GUINGONA. to reply, Mr. Presiding Officer.
MR. Actually, we considered that
MAAMBONG. previously when we sequenced
this but we reasoned that in
Section 21, which is Legislative
Inquiry, it is actually a power of
Congress in terms of its own
lawmaking; whereas, a
Question Hour is not actually a
power in terms of its own
lawmaking power because in
Legislative Inquiry, it is in aid of
legislation. And so we put
Question Hour as Section 31. I
hope Commissioner Davide will
consider this.
MR. DAVIDE. The Question Hour is closely
related with the legislative
power, and it is precisely as a
complement to or a
supplement of the Legislative
Inquiry.The appearance of the
members of Cabinet would be
very, very essential not only in
the application of check and
balance but also, in effect, in aid
of legislation.
MR. After conferring with the
MAAMBONG. committee, we find merit in the
suggestion of Commissioner
Davide. In other words, we are
accepting that and so this Section
31 would now become Section
22. Would it be, Commissioner
Davide?
55
VOL. 488, APRIL 20, 2006 55
MR. Yes. (Emphasis and italics
84
DAVIDE. supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded
from the same assumption that these provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davide’s only concern was that the two provisions on
these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the above-quoted exchange, Commissioner
Maambong’s committee—the Committee on Style—shared the view that the two provisions reflected distinct
functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the
Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the “question hour” has a definite meaning. It is a
period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for
their acts and the operation of the government, corresponding to what is known in Britain as the question period.
85
There was a specific provision for a question hour in the 1973 Constitution which made the appearance of ministers
86
mandatory. The same perfectly conformed to the parliamentary system established by

_______________
II RECORD, CONSTITUTIONAL COMMISSION 900-1 (October 12, 1986).

84
H. MENDOZA & A. LIM, THE NEW CONSTITUTION 177 (1974).

85
CONSTITUTION (1973), Art. VIII, Sec. 12(1).

86
56
that Constitution, where the ministers are also members of the legislature and are directly accountable to it.
“An essential feature of the parliamentary system of government is the immediate accountability of the
Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the guidelines of national policy. Unlike in
the presidential system where the tenure of office of all elected officials cannot be terminated before their
term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the
confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the
Cabinet may be changed.” 87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in
the present Constitution so as to conform more fully to a system of separation of powers. To that extent, the
88
question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary
system. That department heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence
of a mandatory question period, the need to enforce Congress’ right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:
“Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source—even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear
_______________
R. MARTIN, THE NEW CONSTITUTION OF THE PHILIPPINES 394 (1973).

87
II RECORD, CONSTITUTIONAL COMMISSION 133 (July 23, 1986).

88
57
VOL. 488, APRIL 20, 2006 57
separation between the legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to be carried out. The absence
of close rapport between the legislative and executive branches in this country, comparable to those
which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as
the British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of administration in a
system such as ours becomes a power devoid of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the executive.” (Emphasis and italics
89
supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight
function.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it
has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive,
such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is “in aid of legisla-
_______________
SCHWARTZ, supra at pp. 11-12.

89
58
tion” under Section 21, the appearance is mandatory for the same reasons stated in Arnault. 90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack
of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-
equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its
demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department
heads. Only one executive official may be exempted from this power—the President on whom executive power is
vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is
sanctioned by a longstanding custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This
point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
_______________
Supra.
90
59
VOL. 488, APRIL 20, 2006 59
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to
pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of
any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances
of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The
reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way
that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances
in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials
of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the
judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.”
60
The enumeration also includes such other officers as may be determined by the President. Given the title of Section
2—“Nature, Scope and Coverage of Executive Privilege”—, it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a similar finding of coverage under
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive
privilege, the reference to persons being “covered by the executive privilege” may be read as an abbreviated way of
saying that the person is in possession of information which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or by the President that an official is “covered by the
executive privilege,” such official is subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless
the same is permitted by the President. The proviso allowing the President to give its consent means nothing more
than that the President may reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis for the official’s not showing up in the
legislative investigation.
61
VOL. 488, APRIL 20, 2006 61
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such determination.
Such declaration, however, even without mentioning the term “executive privilege,” amounts to an implied claim
that the information is being withheld by the executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005),
entitled “Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On
Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries
In Aid Of Legislation Under The Constitution, And For Other Purposes.” Said officials have not secured
the required consent from the President. (Italics supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the
hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the
invited officials are covered by E.O. 464. As explained earlier,
62
however, to be covered by the order means that a determination has been made, by the designated head of office or
the President, that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the
statement that the invited officials have not secured the consent of the President, it only means that the President has
not reversed the standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch, either through
the President or the heads of offices authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from
the President. In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
“There is no claim by PEA that the information demanded by petitioner is privileged information rooted
in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of informationcannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect the independence of decision-making
of those tasked to exercise Presidential, Legisla-
63
VOL. 488, APRIL 20, 2006 63
tive and Judicial power. This is not the situation in the instant case.” (Emphasis and italics supplied)
91
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in
the phrase “confidential or classified information between the President and the public officers covered by this
executive order.”
Certainly, Congress has the right to know why the executive considers the requested information privileged. It
does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more pernicious. It threat-
_______________
91
64
ens to make Congress doubly blind to the question of why the executive branch is not providing it with the
information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be
clearly asserted. As U.S. v. Reynolds teaches:
“The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived
by a private party. It isnot to be lightly invoked. There must be a formal claim ofprivilege, lodged by the
head of the department which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to
protect.” (Italics supplied)
92
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it
should be respected. These, in substance, were the same criteria in assessing the claim of privilege asserted against
93
the Ombudsman in Almonte v. Vasquez and, more in point, against a committee of the Senate in Senate Select
94
Committee on Presidential Campaign Activities v. Nixon. 95
A.O. Smith v. Federal Trade Commission is enlightening:

“[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to determine
whether to override any claims of privilege.” (Italics supplied)
96
_______________
345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L.R.2d 382 (1953).

92
Vide TRIBE, supra note 68.
93
Supra note 78.
94
Supra note 75.
95
403 F. Supp. 1000, 20 Fed, R.Serv.2d 1382 (1975).

96
65
VOL. 488, APRIL 20, 2006 65
And so is U.S. v. Article of Drug: 97
“On the present state of the record, this Court is not called upon to perform this balancing operation. In
stating its objection to claimant’s interrogatories, government asserts, and nothingmore, that the
disclosures sought by claimant would inhibitthe free expression of opinion that non-disclosure is
designed to protect. The government has not shown—nor even alleged—that those who evaluated
claimant’s product were involved in internal policymaking, generally, or in this particular
instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is
based must be established. To find these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimant’s products was a matter of internal policy formulation,
an assumption in which this Court is unwilling to indulge sua sponte.” (Emphasis and italics supplied)
98
Mobil Oil Corp. v. Department of Energy similarly emphasizes that “an agency must provide ‘precise and certain’
99
reasons for preserving the confidentiality of requested information.”

Black v. Sheraton Corp. of America amplifies, thus:
100
“A formal and proper claim of executive privilege requires a specific designation and description of the
documents within its scope as well as precise and certain reasons for preserving their confidentiality.
Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very
thing sought to be protected. As the affidavit now stands, the Court has little more than its sua
sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynoldsrequires, the Court can not recognize the claim in the instant case because it is
legally insufficient to allow the Court to make a just and reasonable determination as to its
_______________
97
43 F.R.D. 181 (1967).
98
Ibid., citation omitted.
99
520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).
100
371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).
66
applicability. To recognize such a broad claim in which theDefendant has given no precise or
compelling reasons toshield these documents from outside scrutiny, would make a farce of the whole
procedure.” (Emphasis and italics supplied)
101
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly
stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102
“We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant
to these questions. For it is as true here as it was there, that ‘if (petitioner) had legitimate reasons for
failing to produce the records of the association, a decent respect for the House of Representatives, by
whose authority the subpoenas issued, would have required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the
records. ‘To deny the Committee the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His failure to make any such statement was
“a patent evasion of the duty of one summoned to produce papers before a congressional committee[,
and] cannot be condoned.” (Emphasis and italics supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege is meant to protect. A useful analogy in
103
determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v.
U.S. declares:
104
_______________
Ibid., citations omitted.

101
364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).

102
U.S. v. Reynolds, supra note 85.

103
341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

104
67
VOL. 488, APRIL 20, 2006 67
“The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his claim, were required to prove
the hazard in the sense in which a claim is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot be answered might
be dangerous because injurious disclosure could result.” x x x (Emphasis and italics supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O.
464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for
Congress to determine whether the withholding of information is justified under the circumstances of each case.
It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the
heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be
conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the
President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites
the case of the
68
United States where, so it claims, only the President can assert executive privilege to withhold information from
Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the effect of
prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances
105
where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The 106
doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity,
be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her
behalf, in which case the Executive Secretary must state that the authority is “By order of the President,” which
means that he personally consulted with her. The privilege being an ex-
_______________
In re Sealed Case, supra note 69.

105
BLACK’S LAW DICTIONARY, supra note 70 at p. 569.

106
69
VOL. 488, APRIL 20, 2006 69
traordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or
the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure “respect for the rights of public officials appearing in inquiries in aid of
legislation.” That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the
Constitution mandating that “[t]he rights of persons appearing in or affected by such inquiries shall be respected.”
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need
to ensure respect for such officials does not change the infirm nature of the authorization itself.
70
Right to Information
E.O. 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the
power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a
citizen for the production of documents pursuant to his right to information does not have the same obligatory force
as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they can use in formulating their own opinions on the matter
before Congress—opinions which they can then communicate to their representatives and other government officials
through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
71
VOL. 488, APRIL 20, 2006 71
“It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate
its will intelligently. Only when the participants in the discussion are aware of the issues and have access
to information relating thereto can such bear fruit.” (Emphasis and italics supplied)
107
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the
need for publication. On the need for publishing even those statutes that do not directly apply to people in
general, Tañada v. Tuvera states:
‘The term “laws” should refer to all laws and not only to those of general application, for strictly speaking
all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people. The subject of such law is a matter
of public interest which any member of the body politic may question in the political forums or, if he is
a proper party, even in courts of justice.’ (Emphasis and italics supplied)
108
Although the above statement was made in reference to statutes, logic dictates that the challenged order must be
_______________
G.R. No. 74930, February 13, 1989, 170 SCRA 256.

107
G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.

108
72
SUPREME COURT REPORTS ANNOTATED 72
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people
to information on matters of public concern. It is, therefore, a matter of public interest which members of the body
politic may question before this Court. Due process thus requires that the people should have been apprised of this
issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it
and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.
That is impermissible. For
[w]hat republican theory did accomplish . . . was to reverse the old presumption in favor of secrecy, based
on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on
the doctrine of popular sovereignty. (Italics supplied) 109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater value—our right as a people to
take part in government.
_______________
Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) 13.
109
73
VOL. 488, APRIL 20, 2006 73
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of
2005), “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO
THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS
APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND
FOR OTHER PURPOSES,” are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
Panganiban (C.J.), Quisumbing, Ynares-Santiago,Sandoval-Gutierrez, Carpio, Austria-Martinez, Coron
a,Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.
Puno, J., On Leave.
Petition partly granted.
Notes.—Under both the 1973 and 1987 Constitution, the right to information is a self-executory provision which
can be invoked by any citizen before the courts, though Congress may provide for reasonable conditions upon the
access to information such as those found in R.A. 6713, otherwise known as the “Code of Conduct and Ethics
Standards for Public Officials and Employees.” (Gonzales vs. Narvasa, 337 SCRA 733 [2000])
When the constitutional guarantees of freedom of the press and the right to public information, on the one hand,
and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to
control its proceedings in ensuring a fair and impartial trial race against one another, jurisprudence tells us that the
right of the accused must be preferred to win. (Re: Request for Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Case Against the Former President Joseph E. Estrada, 360 SCRA 248 [2001])
74

The twin provisions of the Constitution—right to information on matters of public concern and policy of full
transparency—seek to promote transparency in policy-making and in the operations of the government, as well as
provide the people sufficient information to exercise effectively other constitutional rights. An informed citizenry is
essential to the existence and proper functioning of any democracy. (Chavez vs. Public Estates Authority, 384 SCRA
152 [2002])
G.R. No. 170165. August 15, 2006. *

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN, petitioners, vs. LT./GEN.
GENEROSO S. SENGA AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, COL.
GILBERTO JOSE C. ROA AS THE PRE-TRIAL INVESTIGATING OFFICER, THE PROVOST MARSHALL
GENERAL OF THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL,
respondents.
Presidency; Commander-in-Chief Clause; Civilian Supremacy;Armed Forces of the Philippines (AFP); Obedience and
deference to the military chain of command and the President as commander-in-chief are the cornerstones of a professional
military in the firm cusp of civilian control; A self-righteous military invites itself as the scoundrel’s activist solution to the “ills”
of participatory democracy.—A most dangerous general proposition is foisted on the Court—that soldiers who defy orders of
their superior officers are exempt from the strictures of military law and discipline if such defiance is predicated on an act
otherwise valid under civilian law. Obedience and deference to the military chain of command and the President as commander-
in-chief are the cornerstones of a professional military in the firm cusp of civilian control. These values of obedience and
deference expected of military officers are content-neutral, beyond the sway of the officer’s own sense of what is prudent or rash,
or more elementally, of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the “ills” of
participatory democracy.
Armed Forces of the Philippines (AFP); It has to be acknowledged as a general principle that AFP personnel of whatever
rank are liable under military law for violating a direct order of an officer superior in rank.—What the Court has to consider
though is whether the violation of the aforementioned order of Gen. Senga, which emanated from the President, could lead to any
investigation for court-martial of petitioners. It has to be acknowledged as a general princi-
_______________
EN BANC.
*
672
72 ANNOTATED
Gudani vs. Senga
ple that AFP personnel of whatever rank are liable under military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume, for the
purposes of this petition, that petitioners did so.
Presidency; Commander-In-Chief Clause; The ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and independent specie of presidential authority—the
commander-in-chief powers of the President—which, by tradition and jurisprudence, are not encumbered by the same degree of
restriction as that which may attach to executive privilege or executive control. —Senate turned on the nature of executive
privilege, a presidential prerogative which is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the
executive branch to seek prior presidential approval before appearing before Congress, the notion of executive control also comes
into consideration. However, the ability of the President to require a military official to secure prior consent before appearing
before Congress pertains to a wholly different and independent specie of presidential authority—the commander-in-chief powers
of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same
degree of restriction as that which may attach to executive privilege or executive control.
Courts Martial; Jurisdictions; An officer whose name was dropped from the roll of officers cannot be considered to be
outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the
termination of his service.—This point was settled against Gen. Gudani’s position in Abadilla v. Ramos, 156 SCRA 92 (1987),
where the Court declared that an officer whose name was dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his
service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held: The
military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This jurisdiction
having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla. Well-
settled is
673
VOL. 498, AUGUST 15, 2006 6
73
Gudani vs. Senga
the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.
Presidency; Commander-In-Chief Clause; Civilian Supremacy Over the Military; The vitality of the tenet that the
President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy
over the military, and to the general stability of our representative system of government.—The vitality of the tenet that the
President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy
over the military, and to the general stability of our representative system of government. The Constitution reposes final
authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose
duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being
clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.
Same; Same; Armed Forces of the Philippines (AFP); Outside explicit constitutional limitations, such as those found in
Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the
persons and actions of the members of the armed forces.—The commander-in-chief provision in the Constitution is denominated
as Section 18, Article VII, which begins with the simple declaration that “[t]he President shall be the Commander-in-Chief of all
armed forces of the Philippines x x x” Outside explicit constitutional limitations, such as those found in Section 5, Article XVI,
the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of
the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech
of military officers, activities which may otherwise be sanctioned under civilian law.
Armed Forces of the Philippines (AFP); Any good soldier, or indeed any ROTC cadet, can attest to the fact that the
military way of life circumscribes several of the cherished freedoms of civilian life; Inability or unwillingness to cope with
military discipline is not a
674
74 ANNOTATED
Gudani vs. Senga
stain on character, for the military mode is a highly idiosyncratic path which persons are not generally conscripted into,
but volunteer themselves to be part of.—Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way
of life circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who
cannot abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields; and in fact
many of those discharged from the service are inspired in their later careers precisely by their rebellion against the regimentation
of military life. Inability or unwillingness to cope with military discipline is not a stain on character, for the military mode is a
highly idiosyncratic path which persons are not generally conscripted into, but volunteer themselves to be part of. But for those
who do make the choice to be a soldier, significant concessions to personal freedoms are expected. After all, if need be, the men
and women of the armed forces may be commanded upon to die for country, even against their personal inclinations.
Same; It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance; In the end, it must be borne in mind that the armed forces has a distinct subculture with
unique needs, a specialized society separate from civilian society.—It may be so that military culture is a remnant of a less
democratic era, yet it has been fully integrated into the democratic system of governance. The constitutional role of the armed
forces is as protector of the people and of the State. Towards this end, the military must insist upon a respect for duty and a
discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are
founded on unique military exigencies as powerful now as in the past. In the end, it must be borne in mind that the armed forces
has a distinct subculture with unique needs, a specialized society separate from civilian society. In the elegant prose of the
eminent British military historian, John Keegan: [Warriors who fight wars have] values and skills [which] are not those of
politicians and diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the everyday world
but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It follows it,
however, at a distance. The distance can never
675
VOL. 498, AUGUST 15, 2006 6
75
Gudani vs. Senga
be closed, for the culture of the warrior can never be that of civilization itself….
Same; Freedom of Speech; Freedom of Movement; Critical to military discipline is obeisance to the military chain of
command;Further traditional restrictions on members of the armed forces are those imposed on free speech and mobility—the
discretion of a military officer to restrain the speech of a soldier under his /her command will be accorded deference, with
minimal regard if at all to the reason for such restraint.—Critical to military discipline is obeisance to the military chain of
command. Willful disobedience of a superior officer is punishable by court-martial under Article 65 of the Articles of War. “An
individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end
of all discipline if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were
permitted to act upon their own opinion of their rights [or their opinion of the President’s intent], and to throw off the authority of
the commander whenever they supposed it to be unlawfully exercised.” Further traditional restrictions on members of the
armed forces are those imposed on free speech and mobility. Kapunan is ample precedent in justifying that a soldier may be
restrained by a superior officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for
such restraint. It is integral to military discipline that the soldier’s speech be with the consent and approval of the military
commander.
Presidency; Commander-In-Chief Clause; Soldiers are constitutionally obliged to obey a President they may dislike or
distrust, a fundamental principle that averts the country from going the way of banana republics.—The necessity of upholding
the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters. The
Constitution requires that “[t]he armed forces shall be insulated from partisan politics,” and that ‘[n]o member of the military
shall engage directly or indirectly in any partisan political activity, except to vote.” Certainly, no constitutional provision or
military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital that such opinions be
kept out of the public eye. For one, political belief is a
676
76 ANNOTATED
Gudani vs. Senga
potential source of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an atmosphere that
promotes an active dislike of or dissent against the President, the commander-in-chief of the armed forces. Soldiers are
constitutionally obliged to obey a President they may dislike or distrust. This fundamental principle averts the country from going
the way of banana republics.
Judicial Review; Supreme Court; The Court is not blind to history, yet it is a judge not of history but of the Constitution.
—Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked by regime changes wherein
active military dissent from the chain of command formed a key, though not exclusive, element. The Court is not blind to history,
yet it is a judge not of history but of the Constitution. The Constitution, and indeed our modern democratic order, frown in no
uncertain terms on a politicized military, informed as they are on the trauma of absolute martial rule. Our history might imply
that a political military is part of the natural order, but this view cannot be affirmed by the legal order. The evolutionary path of
our young democracy necessitates a reorientation from this view, reliant as our socio-political culture has become on it. At the
same time, evolution mandates a similar demand that our system of governance be more responsive to the needs and aspirations
of the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an undue influence in our
polity.
Armed Forces of the Philippines (AFP); Freedom of Movement;Mobility of travel is another necessary restriction on
members of the military; Military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.—Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot leave his/her post without the consent of the
commanding officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the
troops under command, so as to be able to appropriately respond to any exigencies. For the same reason, commanding officers
have to be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary.
677
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77
Gudani vs. Senga
At times, this may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness the
birth of his first-born, or to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices during
the period of conscription, wherein the higher duty is not to self but to country.
Congress; Power of Inquiry; Separation of Powers; Judicial Review; The President has constitutional authority to
prevent a member of the armed forces from testifying before a legislative inquiry, by virtue of her power as commander-in-chief,
and that as a consequence a military officer who defies such injunction is liable under military justice; At the same time, any
chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate
remedies under law to compel such attendance—the President may be commanded by judicial order to compel the attendance of
the military officer.—We have to consider the question: may the President prevent a member of the armed forces from testifying
before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At
the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the
consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress
summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of
the land which the President has the duty to faithfully execute.
Commander-In-Chief Clause; Separation of Powers; The Court’s ruling that the President could, as a general rule,
require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives of the President as commander-in-chief; The exigencies of military discipline
and the chain of command mandate that the President’s ability to control the individual members of the armed forces be
accorded the utmost respect—where a military officer is torn between obeying the President and obeying the Senate, the Court
will without hesitation affirm that the officer has to choose
678
78 ANNOTATED
Gudani vs. Senga
the President.—Our ruling that the President could, as a general rule, require military officers to seek presidential approval
before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the
President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military
discipline and the chain of command mandate that the President’s ability to control the individual members of the armed forces
be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court
will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the
President, and not the Senate, who is the commander-in-chief of the armed forces.
Same; Congress; The refusal of the President to allow members of the military to appear before Congress is still subject
to judicial relief—inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it is
similarly detrimental for the President to unduly interfere with Congress’s right to conduct legislative inquiries.—The refusal of
the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislature’s functions is the conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for
Congress to interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President to unduly
interfere with Congress’s right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners
testified anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President
has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize. We believe and
hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend
legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executive’s prerogatives
as commander-in-chief. The remedy lies with the courts.
679
VOL. 498, AUGUST 15, 2006 6
79
Gudani vs. Senga
Separation of Powers; Whatever weakness inheres on judicial power due to its inability to originate national policies and
legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by
the other branches of government.—The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable
interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional
functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the
other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar
dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to
compel obeisance to its rulings by the other branches of government.
Same; It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries. —
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying
before Congress without the President’s consent notwithstanding the invocation of executive privilege to justify such prohibition.
The Court did not rule that the power to conduct legislative inquiry ipso facto superseded the claim of executive privilege,
acknowledging instead that the viability of executive privilege stood on a case to case basis. Should neither branch yield to the
other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can
compel, with conclusiveness, attendance or non-attendance in legislative inquiries.
Same; If the President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the
legislative body seeking such testimony may seek judicial relief to compel the attendance. —Following these principles, it is clear
that if the President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the legislative body
seeking such testimony may seek judicial relief to compel the attendance. Such judicial action
680
80 ANNOTATED
Gudani vs. Senga
should be directed at the heads of the executive branch or the armed forces, the persons who wield authority and control
over the actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses against the same—
whether grounded on executive privilege, national security or similar concerns—would be accorded due judicial evaluation. All
the constitutional considerations pertinent to either branch of government may be raised, assessed, and ultimately weighed
against each other. And once the courts speak with finality, both branches of government have no option but to comply with the
decision of the courts, whether the effect of the decision is to their liking or disfavor.
Courts; Judicial Review; Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper constitutional parameters of power; And if
emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the President has earlier disagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the
courts.—Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative
and executive branches of government on the proper constitutional parameters of power. This is the fair and workable solution
implicit in the constitutional allocation of powers among the three branches of government. The judicial filter helps assure that
the particularities of each case would ultimately govern, rather than any overarching principle unduly inclined towards one
branch of government at the expense of the other. The procedure may not move as expeditiously as some may desire, yet it
ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other.
Moreover, judicial review does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are political in nature,
are free to smooth over the thorns in their relationship with a salve of their own choosing. And if emphasis be needed, if the
courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the
military officers before Congress. Even if
681
VOL. 498, AUGUST 15, 2006 6
81
Gudani vs. Senga
the President has earlier disagreed with the notion of officers appearing before the legislature to testify, the Chief
Executive is nonetheless obliged to comply with the final orders of the courts.
Same; The Court is guided by the superlative principle that is the Constitution, the embodiment of the national
conscience.—Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief
and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be lightly ignored.
Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the embodiment of the national conscience.
The Constitution simply does not permit the infraction which petitioners have allegedly committed, and moreover, provides for
an orderly manner by which the same result could have been achieved without offending constitutional principles.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
Napoleon J. Poblador, Manuel Joseph R. Bretaña III,Simonette E. Sibal-Pulido, Jorge Alfonso C.
Melo and Christopher Rey L. Fernandez for petitioners.
The Solicitor General for respondents.
TINGA, J.:
A most dangerous general proposition is foisted on the Court—that soldiers who defy orders of their superior
officers are exempt from the strictures of military law and discipline if such defiance is predicated on an act
otherwise valid under civilian law. Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian control. These values
of obedience and deference expected of military officers are content-neutral, beyond the sway of the officer’s own
sense of what is prudent or rash, or
682
2 ANNOTATED
Gudani vs. Senga
more elementally, of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the
“ills” of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo enjoining them and other
1
military officers from testifying before Congress without the President’s consent. Petitioners also pray for injunctive
relief against a pending preliminary investigation against them, in preparation for possible court-martial
proceedings, initiated within the military justice system in connection with petitioners’ violation of the
aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on
fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be addressed to the
satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, even if
not determinative of the resolution of this petition. Had the relevant issue before us been the right of the Senate to
compel the testimony of petitioners, the constitutional questions raised by them would have come to fore. Such a
scenario could have very well been presented to the Court in such manner, without the petitioners having had to
violate a direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may be
subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
_______________
Initially denominated as the lead respondent in this petition. However, in a Resolution dated 15 November 2005, the
1
Court ordered the dismissal of the petition as against President Arroyo, owing to her immunity from suit during her
incumbency as President. See Rollo, p. 87. See also Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, 2 March
2001, 353 SCRA 452, 516-522.
683
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Gudani vs. Senga
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier
General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the
Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the
Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter
as the Assistant Commandant of Cadets. 2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Bia-zon) invited several senior officers of the AFP to
appear at a public hearing before the Senate Committee on National Defense and Security (Senate Committee)
scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004
elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an
audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of
the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano.
At the time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of
“Joint Task Force Ranao” by the AFP Southern Command. “Joint Task Force Ranao” was tasked with the
maintenance of peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur. 3
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were
among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September 2005
hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be unable to
attend the hearing due to a
_______________
Rollo, pp. 15-18.

2
Id., at p. 18.
3
684
4 ANNOTATED
Gudani vs. Senga
previous commitment in Brunei, but he nonetheless “directed other officers from the AFP who were invited to
attend the hearing.” 4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the
Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA
Iriberri in behalf of Gen. Senga. Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate
5
Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the
hearing. Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to
6
the PMA Superintendent.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing
scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that
some of the invited officers also could not attend as they were “attending to other urgent operational matters.” By
this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA
Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR
BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM
BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC)
ACCORDINGLY. 7
_______________
Id., at p. 75.
4
Id., at pp. 76-77.

5
Id.
6
Id., at p. 81. Capitals not ours.

7
685
VOL. 498, AUGUST 15, 2006 685
Gudani vs. Senga
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that “no approval
has been granted by the President to any AFP officer to appear” before the hearing scheduled on that day.
Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to the
conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional
information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of the
AFP Command Center had attempted to deliver the radio message to Gen. Gudani’s residence in a subdivision in
Parañaque City late in the night of 27 September 2005, but they were not permitted entry by the subdivision guards.
The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen.
Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga called Commodore
Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen.
Senga instructed Commodore Tolentino to inform Gen. Gudani that “it was an order,” yet Gen. Gudani still refused
to take Gen. Senga’s call. 8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued
a statement which noted that the two had appeared before the Senate Committee “in spite of the fact that a guidance
has been given that a Presidential approval should be sought prior to such an appearance”; that such directive was
“in keeping with the time[-]honored principle of the Chain of Command”; and that the two officers “disobeyed a
legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying
_______________
Id., at pp. 111-112.

8
686
6 ANNOTATED
Gudani vs. Senga
Superior Officer), hence they will be subjected to General Court Martial proceedings x x x” Both Gen. Gudani and
Col. Balutan were likewise relieved of their assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order
No. 464 (E.O. 464). The OSG notes that the E.O. “enjoined officials of the executive department including the
military establishment from appearing in any legislative inquiry without her approval.” This Court subsequently
10
ruled on the constitutionality of the said executive order in Senate v. Ermita. The relevance of E.O. 464
11
and Senate to the present petition shall be discussed forthwith.

In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A.
Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General (OPMG)
on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners invoked their
right to remain si-lent. The following day, Gen. Gudani was compulsorily retired from military service, having
12
reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with
violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct
prejudicial to the good order and military discipline. As recommended, the case was referred to a Pre-Trial
14
Investigation Officer
_______________
Id., at p. 83.
9
Id., at p. 111.
10
G.R. Nos. 169777, 169659, 169660, 169667, 169834, 171246, 20 April 2006, 488 SCRA 1.
11
See Rollo, pp. 52, 67.

12
Pursuant to Presidential Decree No. 1638, Sec. 5(a) & 17 as amended, and Presidential Administrative Order No.
13
150 (4 January 1990).

These articles of war are contained in Commonwealth Act No. 408, as amended.
14
687
VOL. 498, AUGUST 15, 2006 687
Gudani vs. Senga
(PTIO) preparatory to trial by the General Court Martial (GCM). Consequently, on 24 October 2005, petitioners
15
were separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert Jose C.
Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col.
Roa at the Pre-Trial Investigation of the Charges for violation of Articles 65 and 97 of Commonwealth Act No.
16 17
408, and to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
18
General. The Orders were accompanied by respective charge sheets against petitioners, accusing them of violating
19
Articles of War 65 and 97.

It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking
that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before
Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets against
petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons
acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005. 20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a “gag order,” which violates the
_______________
Rollo, p. 68.
15
For “assaulting or willfully disobeying superior officer.” See Article 65, Com. Act No. 408 (1938).
16
A general article which punishes “all disorders and neglects to the prejudice of good order and military discipline
17
and all conduct of a nature to bring discredit upon the military service x x x See Com. Act No. 408 (1938), Art. 97,
Commonly referred to as the Articles of War.
18
Rollo, pp. 45, 59.

19
Id., at p. 42.
20
688
8 ANNOTATED
Gudani vs. Senga
principle of separation of powers in government as it interferes with the investigation of the Senate Committee
conducted in aid of legislation. They also equate the “gag order” with culpable violation of the Constitution,
particularly in relation to the public’s constitutional right to information and transparency in matters of public
concern. Plaintively, petitioners claim that “the Filipino people have every right to hear the [petitioners’]
testimonies,” and even if the “gag order” were unconstitutional, it still was tantamount to “the crime of obstruction
of justice.” Petitioners further argue that there was no law prohibiting them from testifying before the Senate, and in
fact, they were appearing in obeisance to the authority of Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of
his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines
persons subject to military law as “all officers and soldiers in the active service” of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating
Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per records,
petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such proceedings, the
correct inquiry should be limited to whether respondents could properly initiate such proceedings preparatory to a
formal court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners’ acts
surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle
that it is not a trier of facts at first in-
689
VOL. 498, AUGUST 15, 2006 689
Gudani vs. Senga
stance, is averse to making any authoritative findings of fact, for that function is first for the court-martial court to
21
fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged
by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28
September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact that
the day before, there was an order from Gen. Senga (which in turn was sourced “per instruction” from President
Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely
admit before this Court that they had learned of such order prior to their testimony, although the OSG asserts that at
the very least, Gen. Gudani already knew of such order before he testified. Yet while this fact may be ultimately
22
material in the court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not
proffer as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga,
which emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be
acknowledged as a general principle that AFP personnel of whatever rank are liable under military law for violating
23
a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the Court to
decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.
_______________
See e.g., Far East Bank and Trust Co. v. Court of Appeals, 326 Phil. 15, 18; 256 SCRA 15 (1996).
21
Supra note 8.
22
As affirmed by Com. Act No. 408, Art. 65 as amended. Supra note 14.

23
690
0 ANNOTATED
Gudani vs. Senga
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464, but
instead, they were charged for violating the direct order of Gen. Senga not to appear before the Senate
Committee, an order that stands independent of the executive order. Distinctions are called for, since Section
2(b) of E.O. 464 listed “generals and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege,” as among those public officials
required in Section 3 of E.O. 464 “to secure prior consent of the President prior to appearing before either House of
Congress.” The Court in Senate declared both Section 2(b) and Section 3 void, and the impression may have been
24
left following Senate that it settled as doctrine, that the President is prohibited from requiring military personnel
from attending congressional hearings without having first secured prior presidential consent. That impression is
wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant
limitations. Insofar as E.O. 464 compelled officials of the execu-tive branch to seek prior presidential approval
before appearing before Congress, the notion of executive control also comes into consideration. However, the
25
ability of the President to
_______________
The writer of this ponencia wrote a Separate Opinion to the Resolution dated 14 July 2005 (denying respondent’s
24
motion for reconsideration), wherein, concurring in the result, he elucidated on his position that Sections 2(b) and 3 of
E.O. 464 are valid on its face as they are based on the President’s constitutional power of executive control, but void as
applied.
See CONSTITUTION, Art. VII, Sec. 17, which reads, “Sec. 17. The President shall have control of all the executive
25
departments, bureaus and offices. He shall ensure that the laws be faithfully executed.” See also Senate v. Ermita, G.R.
Nos. 169777, 169659,
691
VOL. 498, AUGUST 15, 2006 691
Gudani vs. Senga
require a military official to secure prior consent before appearing before Congress pertains to a wholly different and
independent specie of presidential authority—the commander-in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction
as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the
issues raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of E.O.
464 would bear no impact on the present petition since petitioners herein were not called to task for violating the
executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on
disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under
the aegis of the com-mander-in-chief powers to require military officials from securing prior consent before
26
appearing before Congress. The pertinent factors in considering that question are markedly outside of those which
did become relevant in adjudicating the issues raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General
Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement last 4
October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military
law as, among others, “all officers and soldiers in the active service of the [AFP],” and points out that he is no longer
in the active service.
_______________
169660, 169667, 169834, 171246, 14 July, 2006, 496 SCRA 170, Separate Opinion, J. Tinga.
See CONSTITUTION, Art. VII, Sec. 18, infra.
26
692
2 ANNOTATED
Gudani vs. Senga
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos, where the Court declared that an officer
27
whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military
authorities when military justice proceedings were initiated against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held:
“The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the
proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost
upon the instance of the parties but continues until the case is terminated.” 28
Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:
“We have gone through the treatise of Colonel Winthrop and We find the following passage which goes
against the contention of the petitioners, viz.—
3. Offenders in general—Attaching of jurisdiction. It has further been held, and is now settled law, in regard to
military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of
the termination of their legal period of service, they may be brought to trial by court-martial after that date, their
discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was
committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender
should go unpunished. It is held therefore that if before the day on which his service legally terminates and his
right to a discharge is complete, proceedings with a view to trial are commenced against him—as by arrest or
the service of charges,—the mili-
_______________
27
No. L-79173, 7 December 1987, 156 SCRA 92.
28
Id., at p. 102.
693
VOL. 498, AUGUST 15, 2006 693
Gudani vs. Senga
tary jurisdiction will fully attach and once attached may be continued by a trial by court-martial
ordered and held after the end of the term of the enlistment of the accused x x x” 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the
initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no
reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No.
1638, as amended, “[a]n officer or enlisted man carried in the retired list [of the Armed Forces of the Philippines]
shall be subject to the Articles of War x x x” To this citation, petitioners do not offer any response, and in fact have
30
excluded the matter of Gen. Gudani’s retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the “gag order” that required them to secure presidential consent prior to their
appearance before the Senate, claiming that it violates the constitutional right to information and transparency in
matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of justice and grave
coercion. However, the proper perspective from which to consider this issue entails the examination of the basis and
authority of the President to issue such an order in the first place to members of the AFP and the determination of
whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the
_______________
29
Id., at pp. 104-105. Emphasis supplied.
30
See Rollo, p. 148.
694
4 ANNOTATED
Gudani vs. Senga
democratic way of life, to civilian supremacy over the military, and to the general stability of our representative
system of government. The Constitution reposes final authority, control and supervision of the AFP to the President,
a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of
the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy
31
over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts,
on matters such as conducting warrantless searches and seizures. 32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles
to the legislative and executive branches of government in relation to military affairs. Military appropriations, as
with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of
war. Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas
33
corpus. The approval of the Commission on Appointments is also required before the President can promote
34
military officers from the rank of colonel or naval captain. Otherwise, on the particulars of civilian dominance and
35
administration over the military, the Constitution is silent, except for the commander-in-chief clause
_______________
See Carpio v. Executive Secretary, G.R. No. 96409, 14 February 1992, 206 SCRA 290, 302; citing THE
31
CONSTITUTION, A COMMENTARY, by Fr. Joaquin Bernas, S.J., Vol. II, p. 212.

See Alih v. Castro, No. L-69401, 23 June 1987, 151 SCRA 279, 286.
32
See CONSTITUTION, Art. VI, Sections 24 & 23(1), respectively. Also worth noting, it was by a statute that courts-
33
martial were vested jurisdiction to try acts punishable under the Articles of War. See Articles 12 to 15, Com. Act No. 408,
as amended. See also Rep. Act No. 7055.
See CONSTITUTION, Art. VII, Sec. 18.
34

35
695
VOL. 498, AUGUST 15, 2006 695
Gudani vs. Senga
which is fertile in meaning and implication as to whatever inherent martial authority the President may possess. 36
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins
with the simple declaration that “[t]he President shall be the Commander-in-Chief of all armed forces of the
Philippines x x x” Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the
37
commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and
actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel,
movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa is useful in this regard. Lt. Col. Kapunan was ordered confined under
38
“house arrest” by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition
for his house arrest, that he may not issue any press statements or give any press conference during his period of
detention. The Court unanimously upheld such restrictions, noting:
“[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of speech,
may be circumscribed by rules of military discipline. Thus, to a certain degree, individual rights
may be curtailed, because the effectiveness of the military in fulfilling its duties under the law
depends to a
_______________
Laurence Tribe notes in his opus, American Constitutional Law, that “[m]ore recently, it has become the practice to
36
refer to the Commander in Chief Clause for whatever inherent martial authority the Executive may possess.” L. TRIBE,
I AMERICAN CONSTITUTIONAL LAW, 3rd ed. (2000), at 658. A similar trend appears to have developed in this
jurisdiction.
37
No. L-83177, 6 December 1988, 168 SCRA 264.

38
696
6 ANNOTATED
Gudani vs. Senga
large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be
followed without question and rules must be faithfully complied with, irrespective of a soldier’s
personal views on the matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered.” 39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes several
of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot abide by
these limitations normally do not pursue a military career and instead find satisfaction in other fields; and in fact
many of those discharged from the service are inspired in their later careers precisely by their rebellion against the
regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on character,
for the military mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to personal
freedoms are expected. After all, if need be, the men and women of the armed forces may be commanded upon to
die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the armed forces is as protector of the people and of the
State. Towards this end, the military must insist upon a respect for duty and a discipline without counterpart in
40
civilian life. The

41
_______________
Id., at p. 275. Emphasis supplied.

39
CONSTITUTION, Art. II, Sec. 3.

40
Schelsinger v. Councilman, 420 US 738, 757 (1975). “[T]he rights of men in the armed forces must perforce be
41
conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which
must determine the precise balance to be struck in this adjustment.” Burns v. Wilson, 346 U.S. 138,
697
VOL. 498, AUGUST 15, 2006 697
Gudani vs. Senga
laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies
as powerful now as in the past. In the end, it must be borne in mind that the armed forces has a distinct subculture
42
with unique needs, a specialized society separate from civilian society. In the elegant prose of the eminent British
43
military historian, John Keegan:

“[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats.
They are those of a world apart, a very ancient world, which exists in parallel with the everyday world but
does not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It
follows it, however, at a distance. The distance can never be closed, for the culture of the warrior can
never be that of civilization itself….” 44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior
officer is punishable by court-martial under Article 65 of the Articles of War. “An individual soldier is not free to
45
ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline if
the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were
permitted to act upon their own opinion of their rights [or their opinion of the President’s intent], and to throw off
the authority of the commander whenever they supposed it to be unlawfully exercised.” 46
_______________
140 (1952); citing Re: Grimley (United States v. Grimley), 137 U.S. 147, 34 L ed 636, 11 S Ct 52 (1890); Hiatt v.
Brown, 339 U.S. 103, 94 L ed. 691, 70 S Ct 495 (1950).
Id.
42
Parker v. Levy, 417 U.S. 733, 743 (1974).

43
John Keegan, A HISTORY OF WARFARE, p. xvi (1993).

44
See Article 65, Com. Act No. 408 (as amended)

45
New v. Army, 50 M.J. 729, Amry Ct. Crim. App., 1999; citing United States v. Rockwood, 48 M.J. 501, Army Ct.
46
Crim. App., 1998. Emphasis not ours.

698
8 ANNOTATED
Gudani vs. Senga
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from
speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a
soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such
restraint. It is integral to military discipline that the soldier’s speech be with the consent and approval of the military
commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to
speak freely on political matters. The Constitution requires that “[t]he armed forces shall be insulated from partisan
politics,” and that ‘[n]o member of the military shall engage directly or indirectly in any partisan political activity,
except to vote.” Certainly, no constitutional provision or military indoctrination will eliminate a soldier’s ability to
47
form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political
belief is a potential source of discord among people, and a military torn by political strife is incapable of fulfilling its
constitutional function as protectors of the people and of the State. For another, it is ruinous to military discipline to
foment an atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief of
the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This
fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked by regime
changes wherein active military dissent from the chain of command formed a key, though not exclusive, element.
The Court is not blind to history, yet it is a judge not of history but
_______________
See CONSTITUTION, Art. XVI, Sec. 5(3).

47
699
VOL. 498, AUGUST 15, 2006 699
Gudani vs. Senga
of the Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms on a
politicized military, informed as they are on the trauma of absolute martial rule. Our history might imply that a
political military is part of the natural order, but this view cannot be affirmed by the legal order. The evolutionary
path of our young democracy necessitates a reorientation from this view, reliant as our socio-political culture has
become on it. At the same time, evolution mandates a similar demand that our system of governance be more
responsive to the needs and aspirations of the citizenry, so as to avoid an environment vulnerable to a military
apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary
restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding
officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the
troops under command, so as to be able to appropriately respond to any exigencies. For the same reason,
commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their
presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful consequences, such
as a soldier being denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet
again, military life calls for considerable personal sacrifices during the period of conscription, wherein the higher
duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before
he/she may leave his destination. A soldier who goes from the properly appointed place of duty or absents from
his/her command, guard, quarters, station, or camp without proper leave
700
0 ANNOTATED
Gudani vs. Senga
is subject to punishment by court-martial. It is even clear from the record that petitioners had actually requested for
48
travel authority from the PMA in Baguio City to Manila, to attend the Senate Hearing. Even petitioners are well
49
aware that it was necessary for them to obtain permission from their superiors before they could travel to Manila to
attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed.
They seek to be exempted from military justice for having traveled to the Senate to testify before the Senate
Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners’ position is affirmed, a
considerable exception would be carved from the unimpeachable right of military officers to restrict the speech and
movement of their juniors. The ruinous consequences to the chain of command and military discipline simply cannot
warrant the Court’s imprimaturon petitioner’s position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military
discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding to an
invitation from the Philippine Senate, a component of the legislative branch of government. At the same time, the
order for them not to testify ultimately came from the President, the head of the executive branch of government and
the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying
before a
_______________
See Art. 63, Com. Act No. 408 (1938).

48
See Rollo, pp. 78, 79. In their petition, petitioners admit having requested for travel authority with their immediate
49
superior, the PMA Superintendent. See id., at pp. 22, 23.

701
VOL. 498, AUGUST 15, 2006 701
Gudani vs. Senga
legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military
justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a
military officer against the consent of the President has adequate remedies under law to compel such attendance.
Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by judicial order to compel the attendance of the
military officer. Final judicial orders have the force of the law of the land which the President has the duty to
faithfully execute. Explication of these principles is in order.
50
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized
the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on
specified grounds. However, the ability of the President to prevent military officers from testifying before
Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to
control the actions and speech of members of the armed forces. The President’s prerogatives as commander-
in-chief are not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential approval
before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the
prerogatives of the
_______________
See Article 8, CIVIL CODE, in connection with Section 17, Article VII, CONSTITUTION.
50
702
2 ANNOTATED
Gudani vs. Senga
President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the
51
title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies
of military discipline and the chain of command mandate that the President’s ability to control the individual
members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the
President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-
chief of the armed forces. 52
At the same time, the refusal of the President to allow members of the military to appear before Congress is still
subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions is the conduct of
inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to interfere with the President’s power as
53
commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s right to conduct
legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its pronouncement today that the President has the right to
require prior consent from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of the
military may be compelled to attend legislative inquiries even if the Presi-
_______________
Supra notes 33 & 35.

51
Supra note 37.
52
See CONSTITUTION, Art. VI, Sec. 21. See also Senate v. Ermita, supra note 11.
53
703
VOL. 498, AUGUST 15, 2006 703
Gudani vs. Senga
dent desires otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-
chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a
wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable
interplay between the legislative and executive branches, informed by due deference and respect as to their various
constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one
branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of
government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness
inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the
fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the other branches of
government.
As evidenced by Arnault v. Nazareno and Bengzon v. Senate Blue Ribbon Committee, among others, the Court
54 55
has not shirked from reviewing the exercise by Congress of its power of legislative inquiry. Arnault recognized that
56
the legislative power of inquiry and the process to enforce it, “is an essential and appropriate auxiliary to the
legislative function.” On the other hand, Bengzonacknowledged that the power of both
57
_______________
87 Phil. 29 (1950)

54
G.R. No. 89914, 20 November 1991, 203 SCRA 767.

55
“The ‘allocation of constitutional boundaries’ is a task that this Court must perform under the Constitution… The
56
Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the
scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affairs in purported
aid of legislation.” Bengzon, Jr. v. Senate Blue Ribbon Committee, id., at p. 777.
Arnault v. Nazareno, supra note 54, at p. 45.
57
704
4 ANNOTATED
Gudani vs. Senga
houses of Congress to conduct inquiries in aid of legislation is not “absolute or unlimited”, and its exercise is
circumscribed by Section 21, Article VI of the Constitution. From these premises, the Court enjoined the Senate
58
Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence before
the committee, holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations
on the constitutional power of congressional inquiry. Thus:
“As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity
of information in the legislative process. If the information possessed by executive officials on the
operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress
has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called “McCarthy era”, however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive
or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers
under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly
be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not
usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred
in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that
matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on whether
the inquiry is in aid of legislation.
_______________
Bengzon v. Senate Blue Ribbon Committee, supra note 55, at p. 777.

58
705
VOL. 498, AUGUST 15, 2006 705
Gudani vs. Senga
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing
in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances… wherein a clear pattern of abuse of the legislative power of inquiry might be established,
resulting in palpable violations of the rights guaranteed to members of the executive department under the
Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive
Branch to forestall these abuses may be accorded judicial sanction.” 59
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from
testifying before Congress without the President’s consent notwithstanding the invocation of executive privilege to
justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso factosuperseded the
claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to case
basis. Should neither branch yield to the other branch’s assertion, the constitutional recourse is to the courts, as the
final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in
legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the
AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to compel the
attendance.
_______________
Senate v. Ermita, supra note 11.

59
706
6 ANNOTATED
Gudani vs. Senga
Such judicial action should be directed at the heads of the executive branch or the armed forces, the persons who
wield authority and control over the actions of the officers concerned. The legislative purpose of such testimony, as
well as any defenses against the same—whether grounded on executive privilege, national security or similar
concerns—would be accorded due judicial evaluation. All the constitutional considerations pertinent to either branch
of government may be raised, assessed, and ultimately weighed against each other. And once the courts speak with
finality, both branches of government have no option but to comply with the decision of the courts, whether the
effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the
legislative and executive branches of government on the proper constitutional parameters of power. This is the fair
60
and workable solution implicit in the constitutional allocation of powers among the three branches of government.
The judicial filter helps assure that the particularities of each case would ultimately govern, rather than any
overarching principle unduly inclined towards one branch of government at the expense of the other. The procedure
may not move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review does not preclude
the legislative and executive branches from ne-
_______________
See e.g., Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936). Further, “[t]he role of the judiciary in
60
mapping the metes and bounds of powers of the different branches of government was redefined in the 1987 Constitution
which expanded the jurisdiction of this Court to include the determination of grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Macalintal v. Commission on
Elections, 453 Phil. 586, 740; 405 SCRA 614, 664 (2003), J. Puno, Concurring and Dissenting Opinion.
707
VOL. 498, AUGUST 15, 2006 707
Gudani vs. Senga
gotiating a mutually acceptable solution to the impasse. After all, the two branches, exercising as they do functions
and responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a salve of
their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as
commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the
President has earlier disagreed with the notion of officers appearing before the legislature to testify, the Chief
Executive is nonetheless obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the President’s order on them
and other military officers not to testify before Congress without the President’s consent. Yet these issues ultimately
detract from the main point—that they testified before the Senate despite an order from their commanding officer
and their commander-in-chief for them not to do so, in contravention of the traditions of military discipline which
61
we affirm today. The issues raised by petitioners could have very well been raised and properly adjudicated if the
proper procedure was observed. Petitioners could have been appropriately allowed to testify before the Senate
without having to countermand their Commander-in-chief and superior officer under the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
_______________
As stated earlier though, it is controverted whether petitioners were actually aware of the directive from the President
61
before they testified before the Senate. See note 21. This factual matter, which will necessarily impact on the deliberate
intent of the petitioners, is for the court-martial to decide.
708
8 ANNOTATED
Gudani vs. Senga
Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief
and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be
lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the
embodiment of the national conscience. The Constitution simply does not permit the infraction which petitioners
have allegedly committed, and moreover, provides for an orderly manner by which the same result could have been
achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
Panganiban (C.J.), Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Carpio-Morales, Callejo, Sr., Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.
Corona, J., On Leave.
Azcuna, J., On Official Business.
Petition denied.
Notes.—The doctrine of presidential immunity has no application where the petition for prohibition is directed
not against the President himself but against his subordinates. (Gloria vs. Court of Appeals, 338 SCRA 5[2000])
Even with its expanded jurisdiction, it is beyond the powers of the Supreme Court to re-write history. (Gonzales
vs. Philippine Amusement and Gaming Corporation, 429 SCRA 533 [2004])
G.R. No. 151992. September 18, 2002. *
COMMISSION ON ELECTIONS, COMELEC CHAIRMAN ALFREDO L. BENIPAYO, COMELEC

COMMISSIONERS RESURRECCION Z. BORRA and FLORENTINO A. TUASON, JR., petitioners, vs. JUDGE
MA. LUISA QUIJANO-PADILLA, REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 215 and
PHOTOKINA MARKETING CORP., respondents.
Remedial Law; Actions; In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest
of the government is upheld; This is regardless of the fact that what it perceived as the “best interest of the government” runs
counter to its client agency’s position.—PHOTOKINA alleges that the OSG has no standing to file the present petition since its
legal position is contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur
conclusion. The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its
task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld. This is regardless of the
fact that what it perceived as the “best interest of the government” runs counter to its client agency’s position. Endowed with a
broad perspective that spans the legal interest of virtually
_______________
EN BANC.
*
354
54 ANNOTATED
Commission on Elections vs. Quijano-Padilla
the entire government officialdom, the OSG may transcend the parochial concerns of a particular client agency and
instead, promote and protect the public weal.
Same; Same; In the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines
in whom the plenum of sovereignty resides.—Hence, while petitioners’ stand is contrary to that of the majority of the
Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of
the government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the Republic of the
Philippines in whom the plenum of sovereignty resides.
Same; Same; The doctrine of hierarchy of courts is not an iron-clad dictum.—Anent the alleged breach of the doctrine of
hierarchy of courts, suffice it to say that it is not an iron-clad dictum. On several instances where this Court was confronted with
cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial
determination of the case. The case at bar is of similar import. It is in the interest of the State that questions relating to
government contracts be settled without delay. This is more so when the contract, as in this case, involves the disbursement of
public funds and the modernization of our country’s election process, a project that has long been overdue.
Same; Mandamus; Mandamus does not lie to enforce the performance of contractual obligations.—No rule of law is
better settled than that mandamus does not lie to enforce the performance of contractual obligations.
Same; Same; Mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not when it is
doubtful; Legal rights may be enforced by mandamus only if those rights are well-defined, clear and certain.—Moreover, worth
stressing is the judicial caution that mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not
when it is doubtful. In varying language, the principle echoed and reechoed is that legal rights may be enforced
by mandamusonly if those rights are well-defined, clear and certain. Here, the alleged contract, relied upon by PHOTOKINA as
source of its rights which it seeks to be protected, is being disputed, not only on the ground that it was not perfected but also
because it is illegal and against public policy.
Same; Same; PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract; The
proposed contract is not binding upon the COMELEC and is considered void; In issuing the
355
55
questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing Special Civil Action No. Q-
01-45405, respondent judge acted with grave abuse of discretion.—In fine, we rule that PHOTOKINA, though the winning
bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by
Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void; and that in
issuing the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing Special Civil Action No.
Q-01-45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to
discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is
concerned.
PETITION for review on certiorari of a decision of the Regional Trial Court of Quezon City, Br. 215.

The Solicitor General for petitioners.
Castillo, Laman, Tan, Pantaleon & San Jose for respondent Photokina Marketing Corp.
SANDOVAL-GUTIERREZ, J.:
The contracting prerogative of public officers is circumscribed with a heavy burden of responsibility. They must
exercise utmost caution and observe the law in order to protect the public from unjust and inequitable government
contracts.
The case at bar provides us with another occasion to stress that with respect to government contracts, statutes
take precedence over the public officers’ freedom to contract. Here, the primordial question to be resolved is—may
a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds
the amount appropriated by Congress for the project?
Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, alleging
that respondent Judge Ma. Luisa Quijano-Padilla of the Regional Trial Court, Branch 215, Quezon City, committed
grave abuse of discretion in
356
6 ANNOTATED
issuing the (a) Resolution dated December 19, 2001 granting private respondent’s application for a writ of
1
preliminary prohibitory injunction in Special Civil Action No. Q-01-45405; and (b) Resolution dated February 7,
2 3
2002 denying petitioners’ Omnibus Motion to dismiss the petition and their motion for reconsideration of the same
Resolution and granting private respondent’s application for a writ of preliminary mandatory injunction.
The facts are undisputed.
In 1996, the Philippine Congress passed Republic Act No. 8189, otherwise known as the “Voter’s Registration
Act of 1996,” providing for the modernization and computerization of the voters’ registration list and the
appropriation of funds therefor “in order to establish a clean, complete, permanent and updated list of voters.” 4
Pursuant thereto, the Commission on Elections (COMELEC) promulgated Resolution No. 00-0315 approving in 5
principle the Voters’ Registration and Identification System Project (VRIS Project for brevity). The VRIS Project
envisions a computerized database system for the May 2004 Elections. The idea is to have a national registration of
voters whereby each registrant’s fingerprints will be digitally entered into the system and upon completion of
registration, compared and matched with other entries to eliminate double entries. A tamper-proof and counterfeit-
resistant voter’s identification card will then be issued to each registrant as a visual record of the registration.
On September 9, 1999, the COMELEC issued invitations to prequalify and bid for the supply and installation of
information technology equipment and ancillary services for its VRIS Project. Private respondent Photokina
6
Marketing Corporation (PHOTOKINA) pre-qualified and was allowed to participate as one of the bidders.
_______________
Petition, Annex “A”, Rollo, pp. 43-49.

1
Entitled “Photokina Marketing Corp. vs. The Commission on Elections (“COMELEC”), et al.”
2
Petition, Annex “B”, Rollo, pp. 50-57.

3
Article 2 of RA. No. 8189.

4
Rollo, pp. 90-112.

5
Ibid., p. 113.
6
357
VOL. 389, SEPTEMBER 18, 2002 357
After the public bidding was conducted, PHOTOKINA’s bid in the amount of P6.588 Billion Pesos garnered the
highest total weighted score and was declared the winning bidder. Thus, on September 28, 2000, the COMELEC
issued Resolution No. 3252 approving the Notice of Award to PHOTOKINA, which, in turn, immediately accepted
7
the same. The parties then proceeded to formalize the contract, with Commissioner Mehol K. Sadain and Atty.
Rodrigo D. Sta. Ana, acting as negotiators for the COMELEC and PHOTOKINA, respectively.
However, under Republic Act No. 8760 the budget appropriated by Congress for the COMELEC’s
8
modernization project was only One (1) Billion Pesos and that the actual available funds under the Certificate of
Availability of Funds (CAF) issued by the Chief Accountant of the COMELEC was only P1.2 Billion Pesos.
In December 2000, then COMELEC Chairman Harriet O. Demetriou issued a memorandum to the
COMELEC en banc expressing her objections to the contract. Commissioner Sadain, for his part, submitted a draft
of the contract providing a price that would not exceed the certified available appropriation but covering only Phase
9
I of the VRIS Project, i.e., issuance of registration cards for 1,000,000 voters in certain areas only. Under the draft,
10
the “subsequent completion of the whole project shall be agreed upon in accordance with the Bid Documents and
the annual funds available for it.” 11
On February 2, 2001, the term of former Chairman Demetriou and those of Commissioners Julio F. Desamito
and Teresita Dy-Liacco Flores expired. Appointed as their successors were Alfredo
_______________
Rollo, pp. 117-118. On October 3, 2000, the COMELEC issued Resolution No. 3261 clarifying that the Notice of
7
Award which was approved in Resolution No. 3252 was “clearly meant for PHOTOKINA MARKETING
CORPORATION.” (Rollo, pp. 121-122) See also Letter dated October 3, 2000. (Rollo, p. 119)
General Appropriations Act FY 2000, p. 1018.
8
Rollo, pp. 378-427.

9
Ibid., p. 382.
10
Ibid.
11
358
8 ANNOTATED
L. Benipayo as Chairman and Resurreccion Z. Borra and Florentine A. Tuason, Jr. as Commissioners.
Meanwhile, PHOTOKINA, as the winning bidder, wrote several letters to the COMELEC requesting the formal
execution of the contract, but to no avail.
12
Then Chairman Benipayo, through various press releases and public statements, announced that the VRIS
Project has been “scrapped, dropped, junked, or set aside.” He further announced his plan to “re-engineer” the entire
modernization program of the COMELEC, emphasizing his intention to replace the VRIS Project with his own
version, the “Triple E Vision”. 13
On October 2, 2001, Senator Edgardo J. Angara directed the creation of a technical working group to “assist the
COMELEC in evaluating all programs for the modernization of the COMELEC which will also consider the
PHOTOKINA contract as an alternative program and various competing programs for the purpose.”
Unsatisfied with the adverse turn of events, PHOTOKINA filed with the Regional Trial Court, Branch 215,
Quezon City a petition for mandamus, prohibition and damages (with prayer for temporary restraining order,
preliminary prohibitory injunction and preliminary mandatory injunction) against the COMELEC and all its
Commissioners, docketed as Special Civil Action No. Q-01-45405. PHOTOKINA alleged three causes of
14
action: first,the deliberate refusal of the COMELEC and its Commissioners to formalize the contract rendered
nugatory the perfected contract between them; second, in announcing that the VRIS Project has been junked and that
he has plans to re-engineer the COMELEC’s entire modernization program, Chairman Benipayo committed grave
abuse of discretion; and third, the COMELEC’s failure to perform its duty under the contract has caused
PHOTOKINA to incur damages since it has spent substantial time and resources in the preparation of the bid and the
draft contract.
_______________
Ibid., pp. 123-126.
12
Ibid., pp. 131-140.
13
Petition, Annex “F”, Rollo, pp. 64-87.

14
359
VOL. 389, SEPTEMBER 18, 2002 359
In support of its application for writs of preliminary prohibitory and mandatory injunction, PHOTOKINA adopted
the evidence it adduced during the hearing of its application for the issuance of a temporary restraining order.
On December 19, 2001, respondent Judge Ma. Luisa Quijano-Padilla issued the first assailed Resolution
granting PHOTOKINA’s application for a writ of preliminary prohibitory injunction, thus:
“WHEREFORE, premises considered, the Court resolves to: (1)grant the application for the issuance of a
writ of preliminary prohibitory injunction; and (2) deny the application for the issuance of a writ of
preliminary mandatory injunction.
Accordingly, let a writ of preliminary prohibitory injunction issue enjoining respondents, their agents,
successors and assigns from replacing the VRIS Project upon petitioner’s posting of a bond in the amount
of P20,000,000.00, which bond shall answer for whatever damages which may be sustained by reason of
the issuance of the said writ, if it turns out that the plaintiffs are not entitled thereto.
SO ORDERED.” 15
Both parties filed their respective motions for reconsideration. PHOTOKINA reiterated its plea for a writ of
preliminary mandatory injunction. For their part, the COMELEC and its Commissioners, through the Solicitor
16
General, prayed that the writ of preliminary prohibitory injunction be set aside and that the petition
for mandamus,prohibition and damages be dismissed. 17
On February 8, 2002, respondent judge issued the second assailed Resolution denying the COMELEC’s
Omnibus Motion and, this time, granting PHOTOKINA’s application for a writ of preliminary mandatory
injunction, thus:
“WHEREFORE, premises considered, this Court resolves to: (1) deny Respondents’ Omnibus Motion for
the dismissal of this case and for the reconsideration of this Court’s Resolution granting the writ of
preliminary prohibitory injunction; (2) grant Petitioner’s Motion dated January 2, 2002
_______________
15
Ibid., Annex “A”, p. 48.
16
Ibid., Annex “T,” Rollo, pp. 481-492.
17
Ibid., Omnibus Motion, Annex “V,” Rollo, pp. 500-523.
360
0 ANNOTATED
insofar as it prays for the issuance of a writ of preliminary mandatory injunction; (3) Grant the prayer for
the reduction of the preliminary prohibitory injunction bond from P20,000,000.00 to P10,000,000.00; (4)
Clarify its Resolution dated December 19, 2001 to the extent that the writ of preliminary prohibitory
injunction will also enjoin Respondents, their agents, successors and assigns from disregarding the
contract for the VRIS Project between Petitioner and Respondent COMELEC; (5) deny Petitioner’s
motion to declare Respondents in default.
“Accordingly, let a writ of preliminary mandatory injunction issue directing all respondent
Commissioners to immediately resume negotiations to formalize the execution of the contract with
Petitioner for the VRIS Project upon petitioner’s posting of a bond, separate from the above bond for the
writ of preliminary prohibitory injunction, in the amount of P20,000,000.00, which bond shall answer for
whatever damages that may be sustained by reason of the issuance of the said writ, if it turns out that
Petitioner is not entitled thereto.
“SO ORDERED.” 18
Hence, the instant petition for certiorari filed by the Office of the Solicitor General (OSG) in behalf of then
COMELEC Chairman Alfredo L. Benipayo and Commissioners Resurreccion Z. Borra and Florentine A. Tuason, Jr.
Petitioners contend that: (1) a petition for mandamusand prohibition does not lie to enforce contractual
obligations, hence, PHOTOKINA’s proper recourse before the Regional Trial Court should have been an action for
specific performance; (2) respondent judge, by issuing the injunctive writs, already assumed that the VRIS Project
was lawfully awarded by the COMELEC to PHOTOKINA, and that there is a valid perfected contract between
them, thus, manifesting her prejudgment; and (3) injunctive writs should not be issued when an action for damages
can adequately compensate for the injuries. Petitioners pray that the two assailed Resolutions be nullified and
Special Civil Action No. Q-01-45405 be dismissed outright. 19
On February 21, 2002, the majority of the COMELEC Commissioners—Luzviminda G. Tancangco, Rufmo S.B.
Javier, Ralph C.
_______________
Ibid., Annex “B,” Rollo, pp. 56-57.

18
Rollo, pp. 2-41.

19
361
VOL. 389, SEPTEMBER 18, 2002 361
Lantion and Mehol K. Sadain—filed with this Court a Manifestation that “the Chairman and the two
20
Commissioners who filed the instant Petition acted without authority from the COMELEC en banc to take such
action.”
PHOTOKINA filed a Comment with Motion to Dismiss, the present petition, on two procedural
21
grounds. First, the petition violates the doctrine of hierarchy of courts. And second, the OSG has no authority and/or
standing to file the petition considering that the petitioners have not been authorized by the COMELEC en banc to
take such action. Without the concurrence of at least a majority of the members of the COMELEC, neither
petitioners nor the OSG could file the petition in behalf of the COMELEC.
In refutation of petitioners’ arguments, PHOTOKINA contends that mandamus is an appropriate remedy since
what is involved in Special Civil Action No. Q-01-45405 is the performance of a ministerial duty. Citing Isada vs.
Bocar, PHOTOKINA maintains that mandamus may be availed of by private parties to compel public officers to
22
act on a contract entered into pursuant to law. In its Supplemental Comment, PHOTOKINA invites the Court’s
23
attention to Metropolitan Manila Development Authority vs. Jancom Environmental Corporation whereby the 24
winning bidder was afforded every right to seek enforcement of its perfected contract with the government.
The petition is impressed with merit.
Initially, we must resolve the procedural roadblocks.
PHOTOKINA alleges that the OSG has no standing to file the present petition since its legal position is contrary
to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur conclusion. The
OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task,
the primordial concern of the OSG is to see to
_______________
Ibid., pp. 618-625.
20
Ibid., pp. 648-675.
21
62 SCRA 37 (1975).

22
Rollo, pp. 774-782.

23
G.R. No. 147465, January 30, 2002, 375 SCRA 320.

24
362
2 ANNOTATED
it that the best interest of the government is upheld. This is regardless of the fact that what it perceived as the “best
25
interest of the government” runs counter to its client agency’s position. Endowed with a broad perspective that
26
spans the legal interest of virtually the entire government officialdom, the OSG may transcend the parochial
concerns of a particular client agency and instead, promote and protect the public weal. Our ruling in Orbos vs.
27
Civil Service Commission, is relevant, thus:

28
“x x x It is incumbent upon him (Solicitor General) to present to the court what he considers would
legally uphold the best interest of the government although it may run counter to a client’s position. x x x
“In the present case, it appears that after the Solicitor General studied the issues he found merit in the
cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the
petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner
even if in so doing his representation runs against the interests of the CSC.
“This is not the first time that the Office of the Solicitor General has taken a position adverse to his
clients like the CSC, the National Labor Relations Commission, among others, and even the People of the
Philippines. x x x” (Emphasis supplied)
Hence, while petitioners’ stand is contrary to that of the majority of the Commissioners, still, the OSG may represent
the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in
the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom
the plenum of sovereignty resides. 29
Moreover, it must be emphasized that petitioners are also public officials entitled to be represented by the OSG.
Under Executive
_______________
Orbos vs. Civil Service Commission, 189 SCRA 459 (1990).

25
Rubio, Jr. vs. Sto. Tomas, 183 SCRA 571 (1990); See also Tan vs. Gallardo, 73 SCRA 306 (1976).
26
Gonzales vs. Chavez, 205 SCRA 816 (1992).

27
Orbos vs. Civil Service Commission, supra.

28
Gonzales vs. Chavez, supra.

29
363
VOL. 389, SEPTEMBER 18, 2002 363
Order No. 292 and Presidential Decree No. 478, the OSG is the lawyer of the government, its agencies and
30 31
instrumentalities, and its officials or agents. Surely, this mandate includes the three petitioners who have been 32
impleaded as public respondents in Special Civil Action No. Q-01-45405.

Anent the alleged breach of the doctrine of hierarchy of courts, suffice it to say that it is not an iron-clad dictum.
On several instances where this Court was confronted with cases of national interest and of serious implications, it
never hesitated to set aside the rule and proceed with the judicial determination of the case. The case at bar is of
33
similar import. It is in the interest of the State that questions relating to government contracts be settled without
delay. This is more so when the contract, as in this case, involves the disbursement of public funds and the
modernization of our country’s election process, a project that has long been overdue.
We now resolve the following substantive issues:
1) Is a petition for mandamus the appropriate remedy to enforce contractual obligations? and 2) May a
successful bidder compel a government agency to formalize a contract with it notwith-
_______________
Otherwise known as the “Administrative Code of 1987.” Section 35, Chapter 12, Title III, Book IV thereof reads:
30
SEC. 35. Powers and Functions.—The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. x x x
“Defining the Powers and Functions of the Office of the Solicitor General”
31
SEC. 1. Functions and Organizations.—(1) The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a
lawyer.
Rollo, pp. 774-782.
32
See Buklod ng Kawaning EIIB vs. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718; Fortich vs.
33
Corona, 289 SCRA 624 (1998); Dario vs. Mison, 176 SCRA 84 (1989).

364
4 ANNOTATED
standing that its bid exceeds the amount appropriated by Congress for the project?
I
No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual
obligations. As early as 1924, Justice Street, in Quiogue vs. Romualdez, already set forth the justification of this
34 35
rule, thus:
“Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or
even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts
stated, are derived from her contract with the city; and no rule of law is better settled than that mandamus
never lies to enforce the performance of private contracts, x x x The petitioner’s remedy, if any she has, is
by an original action in the Court of First Instance to compel the city to pay the agreed price or to pay
damages for the breach of contract.
“x x x. As said in Lowe vs. Phelps (14 Bush, 642):
‘It must, therefore, appear upon every application for a mandamus that it is the legal duty of the respondent to do
that which it is sought to compel him to do, and that he has upon proper application refused to perform that duty.’
(Citing numerous authorities).
“It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place
of the other remedies provided by law for the adjudication of disputed claims. Looking at the case from
the standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended,
the appellant had a valid contract with the school board, it also had an adequate remedy at law to recover
damages for its breach; and to permit the writ of mandamus to be used for the purpose of enforcing a
mere contract right would be a wide departure from the settled practice in respect to the character of
cases in which relief by mandamus may be obtained.
“In Parrott vs. City of Bridgeport (44 Conn., 180), the writ was refused where the petitioner sought to
compel a city to construct a public
_______________
Quiogue vs. Romualdez, 46 Phil. 337 (1924) citing Florida Central & Peninsular R. Co. vs. State ex rel Tavares, 20
34
L.R.A., 419; Tabigue vs. Duvall, 16 Phil. 324 (1910).

35
Ibid., pp. 339-341.
365
VOL. 389, SEPTEMBER 18, 2002 365
street in a certain manner agreeably to the terms of a special agreement between the petitioner and the
city. In the course of the opinion the court said:
“* * * The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the
petitioner as an individual, not to the public, and the special contract is the foundation upon which it
rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement
of contract rights of a private and personal nature and obligations which rest wholly upon contract and
which involve no questions of public trusts or official duty. Indeed, strictly speaking, it never lies where
the party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute
failure of justice in cases where ordinary legal processes furnish no relief.” (Emphasis supplied)
The passage of time has not eroded the wisdom of the foregoing rule. Its invocation by this Court in Province of
Pangasinan vs. Reparation Commission, Aprueba vs. Ganzon, City of Manila vs. Posadas, Jacinto vs. Director of
36 37 38
Lands, National Marketing Corporation vs. Cloribel, Astudillo vs. The Board of Directors of People’s Homesite
39 40
and Housing Corporation, and Sharp International Marketing vs. Court of Appeals virtually reinforces the rule.
41 42
The present case is our latest addition to the above catena of jurisprudence. We carefully read the pleadings filed
in Special Civil Action No. Q-01-45405 and we are convinced that what PHOTOKINA sought to enforce therein are
its rights under the accepted bid proposal. Its petition alleged that notwithstanding the COMELECs issuance of a
Notice of Award and its (PHOTOKINA’s) subsequent acceptance thereof, the COMELEC still refused to formalize
the contract. As a relief, PHOTOKINA prayed that after trial, petitioners be directed “to review and finalize the
formal contract”
_______________
80 SCRA 376 (1977).

36
18 SCRA 8 (1966).

37
48 Phil. 309 (1925).

38
49 Phil. 853 (1926).

39
23 SCRA 398 (1968).

40
73 SCRA 15 (1976).

41
201 SCRA 299 (1991).

42
366
6 ANNOTATED
and to “implement the VRIS Project. Petitioners, on their part, specifically denied the existence of a perfected
43
contract and asserted that even if there was one, the same is null and void for lack of proper appropriation.
Petitioners labeled the contract as illegal and against public policy.
Akin to our rulings cited above, we hold that mandamusis not the proper recourse to enforce the COMELEC’s
alleged contractual obligations with PHOTOKINA. It has other adequate remedy in law. Moreover, worth stressing
is the judicial caution that mandamus applies as a remedy only where petitioner’s right is founded clearly in law
and not when it is doubtful. In varying language, the principle echoed and reechoed is that legal rights may be
44
enforced by mandamus only if those rights are well-defined, clear and certain. Here, the alleged contract, relied
45
upon by PHOTOKINA as source of its rights which it seeks to be protected, is being disputed, not only on the
ground that it was not perfected but also because it is illegal and against public policy.
Of course, there are cases in which the writ of mandamus has been used to compel public officers to perform
certain acts, but it will be generally observed that in such cases, the contracts have been completely performed by
the petitioner, and nothing remained to be done except for the government to make compensation. These exceptional
cases are cited in Isada vs. Bocar where the act of the respondent public officer has the effect of setting aside
46
contracts already in the process of consummation. In contrast with Isada, the alleged contract here has not yet been
fully performed by PHOTOKINA; and though it avers readiness to perform, petitioners raised serious questions as
to its validity. Their posture is tenable.
_______________
Petition, Annex “F”, Rollo, pp. 64-86.

43
Garces vs. Court of Appeals, 259 SCRA 99 (1996) citing University of San Agustin, Inc. vs. Court of Appeals, 230
44
SCRA 761 (1994); Tamano vs. Manglapus, 214 SCRA 567 (1992); Marcelo vs. Tantuico, Jr., 142 SCRA 439 (1986);
and Sanson vs. Barrios, 63 Phil. 199 (1936).
JRS Business Corporation vs. Montesa, 23 SCRA 190 (1968); Isada vs. Bocai, supra; Sharp International
45
Marketing vs. Court of Appeals, supra.

Supra.
46
367
VOL. 389, SEPTEMBER 18, 2002 367
II
To spare PHOTOKINA the drudgery of a fruitless pursuit, we deem it appropriate to lay down the principles
governing government contracts and to apply them to the instant case. Meanwhile, as PHOTOKINA will later on
deduce from the discussion, the contract subject of this controversy is one that can be slain in sight for being
patently void and unenforceable.
Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be paid out of the Treasury
except in pursuance of an appropriation made by law.” Thus, in the execution of government contracts, the precise
47
import of this constitutional restriction is to require the various agencies to limit their expenditures within the
appropriations made by law for each fiscal year.
Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative
issuances that are designed to effectuate the above mandate in a detailed manner. Sections 46 and 47, Chapter 8,
48
Subtitle B, Title I, Book V of Executive Order No. 292, otherwise known as “Administrative Code of 1987,”
provide:
“SEC. 46. Appropriation Before Entering into Contract.—(1) No contract involving the expenditure of
public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of
which, free of other obligations, is sufficient to cover the proposed expenditure; and x x x
“SEC. 47. Certificate Showing Appropriation to Meet Contract.—Except in the case of a contract for
personal service, for supplies for current consumption or to be carried in stock not exceeding the
estimated
_______________
Sec. 29 (1), Article VI of the 1987 Constitution.

47
See Sections 85, 86 and 87 of Presidential Decree No. 1445, otherwise known as the “Government Auditing Code of the
48
Philippines”; Sections 526 and 527 of the Government Accounting and Auditing Manual; Presidential Decree No. 1177,
otherwise known as “The Budget Reform Decree”, 73 O.G. No. 41, p. 9548; Letter of Instruction 767, s. 1978 (November 16,
1978), 74 O.G. No. 49, p. 10670; Letter of Instructions 968, s. 1979 (December 17, 1979), 76 O.G. No. 3, p. 395; Section 3.1.1 of
the Implementing Rules and Regulations (IRR) for Executive Order No. 262, s. 2000.
368
8 ANNOTATED
consumption for three (3) months, or banking transactions of government-owned or controlled banks, no
contract involving the expenditure of public funds by any government agency shall be entered into or
authorized unless the proper accounting official of the agency concerned shall have certified to the
officer entering into the obligation that funds have been duly appropriated for the purpose and that the
amount necessary to cover the proposed contract for the current calendar year is available for
expenditure on account thereof, subject to verification by the auditor concerned.The certificate signed by
the proper accounting official and the auditor who verified it, shall be attached to and become an integral
part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for
any other purpose until the obligation of the government agency concerned under the contract is fully
extinguished.
It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability
of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts.
The obvious intent is to impose such conditions as a priorirequisites to the validity of the proposed contract. Using 49
this as our premise, we cannot accede to PHOTOKINA’s contention that there is already a perfected contract. While
we held in Metropolitan Manila Development Authority vs. Jancom Environmental Corporation that “the effect of
50
an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to
the bidder,” however, such statement would be inconsequential in a government where the acceptance referred to is
yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would
obligate the government in an amount in excess of the appropriations for the purpose for which the contract was
attempted to be made. This is a dangerous precedent.
51
In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first
step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The
BAC shall rate a bid “passed”
_______________
Fernandez, A Treatise on Government Contracts Under Philippine Law, 2001, pp. 40-41.
49
Supra.
50
64 Am Jur 2d §11.

51
369
VOL. 389, SEPTEMBER 18, 2002 369
only if it complies with all the requirements and the submitted price does not exceed the approved budget for the
contract.” 52
Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the
amount of P6.588 Billion Pesos. However, under Republic Act No. 8760, the only fund appropriated for the project
53
was PI Billion Pesos and under the Certification of Available Funds (CAP) only P1.2 Billion Pesos was available.
54
Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the
COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount
appropriated by law for the project. This being the case, the BAG should have rejected the bid for being
excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null
55
and void. 56
The objections of then Chairman Demetriou to the implementation of the VRIS Project, ardently carried on by
her successor Chairman Benipayo, are therefore in order.
Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of
P1.2 Billion
_______________
Implementing Rules and Regulations (IRR) for Executive Order No. 262, supra.
52
General Appropriations Act, FY 2000, p. 1018, supra.

53
Petition, Annex “FF,” Rollo, p. 613.

54
Notwithstanding the fact that the bid of one responsible bidder complies with all the specifications and conditions of
55
the proposal and is the lowest obtained in the bidding, the PBAC may nevertheless reject the same if it appears that the
price offered is EXCESSIVE. Manual on Public Bidding (A Research Project Funded by the Canadian International
Development Agency and the Commission on Audit), March 1997, p. 28.
There is authority that in the absence of any reservation in the contract of a right to rescind it, public authorities
56
cannot, without incurring liability for breach of contract, after a bid has been accepted and the contract awarded, rescind
such award and contract, EXCEPT for some cause which, in the eye of the law, renders it void or voidable, 64 Am Jur 2d
§79 citing United States vs. Corliss Steam Engine Co., 91 US 321, 23 L Ed 397; State ex rel Robert Mitchell Furniture
Co. vs. Toole, 26 Mont 22, 66 P 496.
370
0 ANNOTATED
Pesos is unacceptable. Indeed, we share the observation of former Chairman Demetriou that it circumvents the
statutory requirements on government contracts. While the contract price under the draft contract is only P1.2
57
Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the
issuance of identification cards for only 1,000,000 voters in specified areas. In effect, the implementation of the
58
VRIS Project will be “segmented” or “chopped” into several phases. Not only is such arrangement disallowed by
our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will
loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount
necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the
project failed “to sell” with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his
letter of December 1, 2000, declined the COMELEC’s request for the issuance of the Notice of Cash Availability
(NCA) and a multi-year obligational authority to assume payment of the total VRIS Project for lack of legal
basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall
59
_______________
Rollo, pp. 378-427.

57
Ibid., p. 382.
58
Secretary Diokno wrote:
59
“On the request for the issuance of NCA for major government projects is done in phases or trenches subject to actual obligations
incurred by the agency and delivery of goods and/or services. For this purpose, may we request the submission of the Schedule of
Payments, mentioned in part E of the draft VRIS Project Contract, and the corresponding cash program (by month or by quarter) to
enable us to include your NCA requirements in the cash program of the national government next year and for DBM to issue timely
releases for the project.
On the issuance of the multi-year obligational authority, we regret that we cannot issue the same for the lack of legal basis. Multi-
year forward obligational authority applies only to foreign assisted projects covered with loan agreements that require the funding
commitment of the national government in terms of both peso counterpart and loan proceeds over the life of the project.”
371
VOL. 389, SEPTEMBER 18, 2002 371
enter into a multi-year contract without a multi-year obligational authority, thus:
“SECTION 33. Contracting Multi-Year Projects.—In the implementation of multi-year projects, no
agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the
Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year
Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed
the amount programmed for implementation during said calendar year.”
Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter
into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a
futile exercise for the contract would inevitably suffer the vice of nullity. In Osmeña vs. Commission on Audit, this 60
Court held:
“The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper
accounting official of the agency concerned shall have certified to the officer entering into the obligation
that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed
contract for the current fiscal year is available for expenditure on account thereof. Any contract entered
into contrary to the foregoing requirements shall be VOID.
“Clearly then, the contract entered into by the former Mayor Duterte was void from the very
beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount
(P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and
unenforceable in COA’s 2nd Indorsement, dated September 4, 1986. The COA declared and we agree,
that:
‘The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund
availability is, as it has always been, an indispensable prerequisite to the execution of any government contract
involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be
considered as final or binding unless such a certification as to funds availability is issued (Letter of Instruction No.
767, s. 1978). Antece-
_______________
230 SCRA 585, 589-590 (1994).

60
372
2 ANNOTATED
dent of advance appropriation is thus essential to government liability on contracts (Zobel vs. City of Manila, 47
Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD
1445 and is null and void by virtue of Sec. 87.’ ”
Verily, the contract, as expressly declared by law, is inexistent and void ab initio. This is to say that the proposed
61
contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered
into, and hence, cannot be validated either by lapse of time or ratification. 62
Of course, we are not saying that the party who contracts with the government has no other recourse in law. The
law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into
contrary to the above-mentioned requirements shall be void, and “the officers entering into the contract shall be
liable to the Government or other contracting party for any consequent damage to the same as if the transaction
had been wholly between private parties.” So when the contracting officer transcends his lawful and legitimate
powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under
the contract. It would be as if the contract in such case were a private one, whereupon, he binds only himself, and
thus, assumes personal liability thereunder. Otherwise stated, the proposed contract is unenforceable as to the
63
Government.
While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate
cited above constrains us to remind all public officers that public office is a public trust and all public officers must
at all times be accountable to the people. The authority of public officers to enter into government contracts is
circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be
the
_______________
Article 1409 of the Civil Code of the Philippines.

61
Manila Lodge vs. Court of Appeals, 73 SCRA 162 (1976); See also Tongoy vs. Court of Appeals, 123 SCRA
62
99 (1983).
Fernandez, A Treatise on Government Contracts Under Philippine Law, 2001, supra, pp. 22-23.
63
373
VOL. 389, SEPTEMBER 18, 2002 373
first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree
of caution so that the Government may not be the victim of ill-advised or improvident action. 64
In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the
contract. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the
proposed contract is not binding upon the COMELEC and is considered void; and that in issuing the questioned
preliminary writs of mandatory and prohibitory injunction and in not dismissing Special Civil Action No. Q-01-
45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ
of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where
disbursement of public funds is concerned.
WHEREFORE, the petition is GRANTED. The Resolutions dated December 19, 2001 and February 7, 2002
issued by respondent Judge Padilla are SET ASIDE. Special Civil Action No. Q-01-45405 is hereby ordered
DISMISSED.
SO ORDERED.
Davide, Jr. (C.J.), Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales and Callejo, Sr., JJ., concur.
Petition granted, resolutions set asid
November 19, 2013. G.R. No. 208566.*
GRECO ANTONIOUS BEDA B. BELGICA, JOSE M. VILLEGAS, JR., JOSE L. GONZALEZ, REUBEN M.
ABANTE, and QUINTIN PAREDES SAN DIEGO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD,
NATIONAL TREASURER ROSALIA V. DE LEON, SENATE OF THE PHILIPPINES, represented by
FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT, and HOUSE OF REPRESENTATIVES,
represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, respondents.
_______________
* EN BANC.
1
2
November 19, 2013. G.R. No. 208493.*
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, petitioner, vs. HONORABLE
FRANKLIN M. DRILON, in his capacity as SENATE PRESIDENT, and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
November 19, 2013. G.R. No. 209251.*
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque, Former Provincial Board Member-Province of
Marinduque, petitioner, vs. PRESIDENT BENIGNO SIMEON C. AQUINO III** and SECRETARY FLORENCIO
“BUTCH” ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.
Constitutional Law; Judicial Review; Actual Case or Controversy; 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, 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.―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, namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act
_______________
**Dropped as a party per Memorandum dated October 17, 2013 filed by counsel for petitioners Atty. Alfredo B. Molo III,
et al. Rollo (G.R. No. 208566), p. 388.
3must 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. Of these requisites, case law states that the first two are the most important
and, therefore, shall be discussed forthwith.
Same; Same; Same; Words and Phrases; 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.―By
constitutional fiat, judicial power operates only when there is an actual case or controversy. This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that “[j]udicial
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.” In other words, “[t]here
must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law
and jurisprudence.” Related to the requirement of an actual case or controversy is the requirement of
“ripeness,” meaning that the questions raised for constitutional scrutiny are already ripe for adjudication.
“A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action.” “Withal, courts will
decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to
resolve hypothetical or moot questions.”
Same; Same; Pork Barrel System; 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.―The
requirement of contrariety of legal rights is clearly satis-
4fied 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.
Same; Same; Same; Priority Development Assistance Fund (PDAF); Moot and Academic; Neither
will the President’s declaration that he had already ― abolished the Priority Development Assistance
Fund (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.―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. Differing from this description, the
Court observes that respondents’ proposed line-item budgeting scheme would not terminate the
controversy nor diminish the useful purpose for its resolution since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the President’s declaration that he had already “abolished the PDAF”
render the issues on PDAF moot precisely because the Executive branch of government has no
constitutional authority to nullify or annul its legal existence. By constitutional design, the annulment or
nullification of a law may be done either by Congress, through the passage of a repealing law, or by the
Court, through a declaration of unconstitutionality.
Same; Same; Same; 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.”―The “limitation on the power of judicial review to
5actual cases and controversies” carries the assurance that “the courts will not intrude into areas
committed to the other branches of government.” Essentially, the foregoing limitation is a restatement of
the political question doctrine which, under the classic formulation of Baker v. Carr, 369 US 186 82, S.
Ct. 691, L. Ed. 2d. 663 [1962], 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 “[t]he 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.”
Same; Same; Same; 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.―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.” 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
6excess of jurisdiction on the part of any branch or instrumentality of the Government.”
Same; Same; Same; 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.―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.” 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.
Same; Same; Same; Taxpayer’s Suit; 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.―“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.”
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.” 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
7continue 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, as in these cases.
Remedial Law; Civil Procedure; Res Judicata; Res judicata (which means a “matter adjudged”)
and stare decisis non quieta et movere ([or simply, stare decisis] which means “follow past precedents
and do not disturb what has been settled”) are general procedural law principles which both deal with
the effects of previous but factually similar dispositions to subsequent cases.―Res judicata (which means
a “matter adjudged”) and stare decisis non quieta et movere ([or simply, stare decisis] which means
“follow past precedents and do not disturb what has been settled”) are general procedural law principles
which both deal with the effects of previous but factually similar dispositions to subsequent cases. For the
cases at bar, the Court examines the applicability of these principles in relation to its prior rulings
inPhilconsa and LAMP.
Constitutional Law; Pork Barrel System; Words and Phrases; 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.―Considering petitioners’ submission and in reference to its local concept and legal history, the
Court defines the Pork Barrel System as the collective body of rules and practices that govern the
manner by which lump-sum, discretionary funds, primarily intended for local projects, are utilized
through the respective participations of the Legislative and Executive branches of government,
including its members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary
funds: First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the fund’s utilization through various post-
enactment measures and/or
8practices. 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; 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, the Court shall delimit the use of such term to
refer only to the Malampaya Funds and the Presidential Social Fund.
Same; Separation of Powers; The principle of separation of powers refers to the constitutional
demarcation of the three fundamental powers of government; To the legislative branch of government,
through Congress, belongs the power to make laws; to the executive branch of government, through the
President, belongs the power to enforce laws; and to the judicial branch of government, through the
Court, belongs the power to interpret laws.―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, 63 Phil. 139 (1936), 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.” To the legislative branch of government, through
Congress, belongs the power to make laws; to the executive branch of government, through the President,
belongs the power to enforce laws; and to the judicial branch of government, through the Court, belongs
the power to interpret laws. Because the three great powers have been, by constitutional design, ordained
in this respect, “[e]ach department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere.” 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.” 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. 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
8mandates. 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.
Same; Same; 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; 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.―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 itself with details for implementation by the
Executive.” The foregoing cardinal postulates were definitively enunciated in Abakada where the Court
held that “[f]rom 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.” 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.10
Same; Same; Pork Barrel System; Post-enactment measures which govern the areas of project
identification, fund release and fund realignment are not related to functions of congressional oversight
and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of
budget execution; Towards this end, the Supreme Court must therefore abandon its ruling in Philconsa
which sanctioned the conduct of legislator identification on the guise that the same is merely
recommendatory and, as such, respondents’ reliance on the same falters altogether.―Clearly, these post-
enactment measures which govern the areas of project identification, fund release and fund realignment
are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing,
legislators have been, in one form or another, authorized to participate in — as Guingona, Jr.puts it —
“the various operational aspects of budgeting,” including “the evaluation of work and financial
plans for individual activities” and the “regulation and release of funds” in violation of the separation
of powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated
— from the moment the law becomes effective, any provision of law that empowers Congress or
any of its members to play any role in the implementation or enforcement of the law violates the
principle of separation of powers and is thus unconstitutional. That the said authority is treated as
merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the law. Towards this end, the Court must
therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the
guise that the same is merely recommendatory and, as such, respondents’ reliance on the same falters
altogether.
Same; Same; Same; Priority Development Assistance Fund (PDAF); The Supreme Court hereby
declares the 2013 Priority Development Assistance Fund (PDAF) Article as well as all other provisions
of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional.―The Court hereby declares the 2013 PDAF
Article as well as all other provisions
11of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through
which legislators have effectively intruded into the proper phases of budget execution, must be deemed
as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the
same unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially disputed here.
Same; Same; Delegation of Powers; Congress; As an adjunct to the separation of powers principle,
legislative power shall be exclusively exercised by the body to which the Constitution has conferred the
same; It is clear that only Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other; Exceptions.―As an
adjunct to the separation of powers principle, legislative power shall be exclusively exercised by the body
to which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987
Constitution states that such power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum. Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may constitutionally wield
legislative power and no other. This premise embodies the principle of non-delegability of legislative
power, and the only recognized exceptions thereto would be: (a) delegated legislative power to local
governments which, by immemorial practice, are allowed to legislate on purely local matters; and (b)
constitutionally-grafted exceptions such as the authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy in times of war or other national emergency,
or fix within specified limits, and subject to such limitations and restrictions as Congress may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government. 12
Same; Same; Same; Priority Development Assistance Fund (PDAF); The Supreme Court observes
that the 2013 Priority Development Assistance Fund (PDAF) Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said
legislators are effectively allowed to individually exercise the power of appropriation, which ― as settled
in Philconsa ― is lodged in Congress.―In the cases at bar, the Court observes that the 2013 PDAF
Article, insofar as it confers post-enactment identification authority to individual legislators, violates the
principle of non-delegability since said legislators are effectively allowed to individually exercise
the power of appropriation, which — as settled in Philconsa — is lodged in Congress. That the power
to appropriate must be exercised only through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: “No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law.” To understand what constitutes an act of appropriation, the Court,
in Bengzon v. Secretary of Justice and Insular Auditor (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified
purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a personal lump-sum
fund from which they are able to dictate (a) how much from such fund would go to (b)a specific project
or beneficiary that they themselves also determine. As these two (2) acts comprise the exercise of the
power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes
individual legislators to perform the same, undoubtedly, said legislators have been conferred the power to
legislate which the Constitution does not, however, allow. Thus, keeping with the principle of non-
delegability of legislative power, the Court hereby declares the 2013 PDAF Article, as well as all other
forms of Congressional Pork Barrel which contain the similar legislative identification feature as herein
discussed, as unconstitutional.
Same; Same; Checks and Balances; Veto Power; 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.”―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
13submitted 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. x x x x (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. 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.”
Same; Same; Same; Same; The justification for the President’s item-veto power rests on a variety of
policy goals such as to prevent log-rolling legislation, impose fiscal restrictions on the legislature, as
well as to fortify the executive branch’s role in the budgetary process; It is meant to “increase the
chances in favor of the community against the passing of bad laws, through haste, inadvertence, or
design.”―The justification for the President’s item-veto power rests on a variety of policy goals such as
to prevent log-rolling legislation, impose fiscal restrictions on the legislature, as well as to fortify the
executive branch’s role in the budgetary process. 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.”
Same; Same; Same; 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.―What
beckons constitutional infirmity are appropriations which merely provide for a singular lump-
sumamount 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 andthe actual
purpose of the appropria-
14tion 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.
Same; Same; Same; Priority Development Assistance Fund (PDAF); The fact that individual
legislators are given post-enactment roles in the implementation of the budget makes it difficult for them
to become disinterested “observers” when scrutinizing, investigating or monitoring the implementation
of the appropriation law; Clearly, allowing legislators to intervene in the various phases of project
implementation ― a matter before another office of government ― renders them susceptible to taking
undue advantage of their own office.―The Court agrees with petitioners that certain features embedded
in some forms of Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become disinterested “observers” when
scrutinizing, investigating or monitoring the implementation of the appropriation law. To a certain extent,
the conduct of oversight would be tainted as said legislators, who are vested with post-enactment
authority, would, in effect, be checking on activities in which they themselves participate. Also, it must be
pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article
VI of the 1987 Constitution which provides that: Sec. 14. No Senator or Member of the House of
Representatives may personally appear as counsel before any court of justice or before the Electoral
Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any
15franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government
for his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied) Clearly, allowing legislators to intervene in the various phases of project implementation — a
matter before another office of government — renders them susceptible to taking undue advantage of
their own office.
Same; Same; Same; Same; The gauge of Priority Development Assistance Fund (PDAF) and
Countrywide Development Fund (CDF) allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In this
regard, the allocation/division limits are clearly not based on genuine parameters of equality, wherein
economic or geographic indicators have been taken into consideration.―The Court, however, finds an
inherent defect in the system which actually belies the avowed intention of “making equal the unequal.”
In particular, the Court observes that the gauge of PDAF and CDF allocation/division is based solely
on the fact of office, without taking into account the specific interests and peculiarities of the
district the legislator represents. In this regard, the allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or geographic indicators have been taken into
consideration. As a result, a district representative of a highly-urbanized metropolis gets the same amount
of funding as a district representative of a far-flung rural province which would be relatively
“underdeveloped” compared to the former. To add, what rouses graver scrutiny is that even Senators and
Party-List Representatives — and in some years, even the Vice-President — who do not represent any
locality, receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel’s original intent which is “to make equal the unequal.” Ultimately, the PDAF
and CDF had become personal funds under the effective control of each legislator and given unto them on
the sole account of their office.
Same; “An appropriation made by law” under the contemplation of Section 29(1), Article VI of the
1987 Constitution exists when a
16provision of law (a) sets apart a determinate or determinable amount of money and (b) allocates
the same for a particular public purpose.―“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 determinable 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 appropriateexists. 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.
Same; Priority Development Assistance Fund (PDAF); The 2013 Priority Development Assistance
Fund (PDAF) Article cannot be properly deemed as a legal appropriation precisely because it contains
post-enactment measures which effectively create a system of intermediate appropriations.―It is apropos
to note that the 2013 PDAF Article cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it contains post-enactment measures which
effectively create a system of intermediate appropriations. These intermediate appropriations are the
actual appropriations meant for enforcement and since they are made by individual legislators after the
GAA is passed, they occur outside the law. As such, the Court observes that the real appropriation made
under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-
enactment determinations made by the individual legislators which are, to repeat, occurrences outside of
the law. Irrefragably, the 2013 PDAF Article does not constitute an “appropriation made by law” since it,
in its truest sense, only authorizes individual legislators to appropriatein violation of the non-
delegability principle as afore-discussed.
Same; Delegation of Powers; Malampaya Funds; The Court agrees with petitioners that the phrase
“and for such other purposes
17as may be hereafter directed by the President” under Section 8 of P.D. 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.―The Court agrees with petitioners that the phrase “and for such other purposes as
may be hereafter directed by the President” underSection 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, 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;
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.” 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
18and 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.
Same; Priority Development Assistance Fund (PDAF); Special Allotment Release Order (SARO);
Words and Phrases; A Special Allotment Release Order (SARO), as defined by the Department of Budget
and Management (DBM) itself in its website, is “[a] specific 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.”―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 “[a]
specific 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.” 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, which
is subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments.
Same; Same; Same; Notice of Cash Allocation (NCA); Unless a Notice of Cash Allocation (NCA)
has been issued, public funds should not be treated as funds which have been “released;” The
disbursement of 2013 Priority Development Assistance Fund (PDAF) funds which are only covered by
obligated Special Allotment Release Order (SARO), and without any corresponding Notice of Cash
Allocation (NCA) issued, must, at the time of this Decision’s promulgation, be enjoined and consequently
reverted to the unappropriated surplus of
19the general fund.―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.
Same; Operative Fact Doctrine; 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.―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
20properly enforced and complied with. As explained in the recent case of Commissioner of
Internal Revenue v. San Roque Power Corporation, 707 SCRA 66 (2013), the doctrine merely “reflect[s]
awareness that precisely because the judiciary is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the
law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to
such adjudication.” “In the language of an American Supreme Court decision: ‘The actual existence of a
statute, prior to such a determination [of unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored.’ ”
Same; Pork Barrel System; The Supreme Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates.―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
21law 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.
SERENO, C.J., Concurring Opinion:
Constitutional Law; View that it has been held that the Supreme Court in construing a Constitution
should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied.―The guiding principle for the Court should not be to “anticipate a question of
constitutional law in advance of the necessity of deciding it,” but rather to treat the function of judicial
review as a most important and delicate matter; after all, we cannot replace the wisdom of the elected
using our own, by adding qualifications under the guise of constitutional “interpretation.” While it is true
that the Constitution must be interpreted both in its written word and underlying intent, the intent must be
reflected in taking the Constitution itself as one cohesive, functional whole. A foolproof yardstick in
constitutional construction is the intention underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in mind the object sought to be accomplished
by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances under which the
Constitution was framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order
to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.
Same; Judicial Review; View that the Supreme Court’s power of judicial review must be confined
only to dispositions which are constitutionally supportable.―The Court’s power of judicial review must
be confined only to dispositions which are constitutionally supportable. Aside from the jurisdictional
requirements for the exercise thereof, other guidelines are also mandated, i.e., that the question to be
answered must be in a form capable of judicial resolution; that as previously discussed, the Court will not
anticipate a question in advance of the necessity of deciding it; and, most relevant to the
22present case, that the Court “will not formulate a rule of constitutional law broader than is
required by the precise facts on which it is to be applied.” Given a controversy that raises several
issues, the tribunal must limit its constitutional construction to the precise facts which have been
established. This rule is most applicable “in determining whether one, some or all of the remaining
substantial issues should be passed upon.” Thus, the Court is not authorized to take cognizance of an issue
too far-removed from the other.
Same; Lump-Sum Appropriations; View that by its very words, the Constitution does not prohibit
lump-sum appropriations.―The questions surrounding lump-sum appropriations, in the context of how
they arose during the interpellation, are not legal questions. Unlike the first two reasons advanced by the
ponencia in finding for the unconstitutionality of the PDAF, the invalidity of lump-sum appropriations
finds no textual support in the Constitution. By its very words, the Constitution does not prohibit lump-
sum appropriations. In fact, the history of legislative appropriations suggests otherwise.
Same; General Appropriations Bill; View that the form, content, and manner of preparation of the
budget must be prescribed by law, and no provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular appropriation therein, and such
provision or enactment shall be limited in its operation to the appropriation to which it relates.―The
form, content, and manner of preparation of the budget must be prescribed by law, and no provision or
enactment shall be embraced in the general appropriations bill unless it relates specifically to some
particular appropriation therein, and such provision or enactment shall be limited in its operation to the
appropriation to which it relates. Procedures involving appropriations must be uniform. A special
appropriations bill must be specific in purpose and supported or supportable by funds. Only the heads of
the branches of government, as well as the constitutional commissions and fiscally independent bodies
may be authorized to augment items in appropriations. Discretionary funds are regulated. Appropriations
of the previous year are automatically revived if Congress fails to pass a new law. Appropriations for
fiscally autonomous agencies are released
23automatically. Furthermore, in relation to all this, the Constitution gives to the President the duty
to faithfully execute the law.
Same; Same; View that once the appropriations law is passed, the day-to-day management of the
national budget is left to the Department of Budget Management and Department of Finance, in
accordance with the appropriate rules and regulations. Simultaneously, the Commission on Audit is
tasked to conduct auditing and post-auditing throughout the fiscal year, with a final audit report
presented to the President and Congress at the end of such year.―Once the appropriations law is passed,
the day-to-day management of the national budget is left to the DBM and DOF, in accordance with the
appropriate rules and regulations. Simultaneously, the COA is tasked to conduct auditing and post-
auditing throughout the fiscal year, with a final audit report presented to the President and Congress at the
end of such year. In this whole process, an appropriation can be made and has been made at the lump-sum
level. While not initially broken down in the budget formulation aspect of the entire expenditure process,
the individual expenditures sourced from these lump-sum appropriations are broken down in journal
entries after the fact, during the auditing process of the COA, which has the power to issue notices of
disallowance should it find a particular expenditure to have been improper under law and accounting
rules. Consequently, a lump-sum appropriation can still be audited and accounted for properly. This
recognizes the fact that lump-sum appropriating is a formal concern of the COA, and all other agencies
and instrumentalities of the government that take part in the appropriations process. In fact, the
Administrative Code gives formal discretion to the President, in the following manner: Section 12. Form
and Content of the Budget.—xxx The budget shall be presented to the Congress in such form and content
as may be approved by the President and may include the following: xxx.
Same; Item-Veto Power; View that it behooves the Supreme Court to step back and not needlessly
create a controversy over the item-veto power when there is none.―In the first place, all cases in which
this Court ruled on the item-veto power were generated by an actual controversy. In stark contrast, the
veto power has never been raised as an issue in this case until raised as a possible issue in the oral
arguments. Neither the President (who should be invoking a direct injury if the power were allegedly
denied him) nor Congress
24(whose product would then be tampered with by a presidential veto) is complaining. It behooves
this Court to step back and not needlessly create a controversy over the item-veto power when there is
none.
Same; Lump-Sum Appropriations; View that the use of lump-sum appropriations inherently springs
from the reality that the government cannot completely predict at the beginning of a fiscal year where
funds will be needed in certain instances.―The use of lump-sum appropriations inherently springs from
the reality that the government cannot completely predict at the beginning of a fiscal year where funds
will be needed in certain instances. Since Congress is the source of the appropriation law in accordance
with the principle of separation of powers, it can craft the law in such a way as to give the Executive
enough fiscal tools to meet the exigencies of the year. Lump-sum appropriations are one such tool. After
all, the different agencies of government are in the best position to determine where the allocated money
might best be spent for their needs: [A]n agency’s allocation of funds from a lump-sum appropriation
requires “a complicated balancing of a number of factors which are peculiarly within its expertise”:
whether its “resources are best spent” on one program or another; whether it “is likely to succeed” in
fulfilling its statutory mandate; whether a particular program “best fits the agency’s overall policies”; and,
“indeed, whether the agency has enough resources” to fund a program “at all.”
Same; Same; Line-Item Budgeting; View that the evolution of the government’s budgeting from a
small amount in past decades, into what is now a massive undertaking that contains complexities, and
involves an exponentially larger sum than before, suggests that a mixture of lump-sum and line-item
budgeting within the same appropriation law could also be a feasible form of budgeting.―The
importance of allowing lump-sum appropriations for budgetary flexibility and good governance has been
validated in other jurisdictions. The evolution of the government’s budgeting from a small amount in past
decades, into what is now a massive undertaking that contains complexities, and involves an
exponentially larger sum than before, suggests that a mixture of lump-sum and line-item budgeting within
the same appropriation law could also be a feasible form of budgeting. At the very least, this Court owes
it to Congress to ask it the question directly, on whether an exclusively line-item
25budgeting system is indeed feasible. Simply put, there appears, even in the United States, a
necessity for the inclusion of lump-sum appropriations in the budget: Congress has been making
appropriations since the beginning of the Republic. In earlier times when the federal government was
much smaller and federal programs were (or at least seemed) much simpler, very specific line-item
appropriations were more common. In recent decades, however, as the federal budget has grown in both
size and complexity, a lump-sum approach has become a virtual necessity.
Same; Same; View that the Administrative Code provides that certain items may be lump-sum funds,
such as the budget for coordinating bodies, the budget for the pool of Foreign Service officers, and merit
increases.―The Administrative Code provides that certain items may be lump-sum funds, such as the
budget for coordinating bodies, the budget for the pool of Foreign Service officers, and merit increases.
As a result, this Court should not read from the text of the Constitution and the law, a mandate to craft the
national budget in a purely line-item format. To do so would be equivalent to judicial legislation, because
the Court would read into the law an additional requirement that is not supported by its text or spirit of the
law, in accordance with its own perceived notion of how a government budget should be formulated. If
we rule out lump-sum budgeting, what happens then to the various provisions of the law, principally the
Administrative Code, that govern lump-sum funds? Is there such a thing as a collateral constitutional
attack? Too many questionable effects will result from a sledgehammer denunciation of lump-sum
appropriations. This Court does not even know how many lump-sum appropriation laws will be affected
by such a ruling. Thus, it is important to emphasize that the fallo only afflicts the 2013 GAA, Article
XIV.
CARPIO, J., Concurring Opinion:
Remedial Law; Civil Procedure; Locus Standi; View that as taxpayers and ordinary citizens,
petitioners possess locus standi to bring these suits which indisputably involve the disbursement of public
funds.―As taxpayers and ordinary citizens, petitioners possess locus standi to bring these suits which
indisputably involve the disbursement of public funds. As we held in Pascual v. Secretary of Public
Works, 110 Phil. 331 (1960), taxpayers, such as petitioners in
26the present petitions, have “sufficient interest in preventing the illegal expenditures of moneys
raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of
public moneys.” Likewise, in Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget
and Management, 670 SCRA 373 (2012), we declared that “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.”
Constitutional Law; Separation of Powers; View that well-entrenched in our jurisdiction is the
principle of separation of powers, which ordains that each of the three great branches of government is
supreme in the exercise of its functions within its own constitutionally allocated sphere; Any
encroachment on the functions of a co-equal branch by the other branches violates the principle of
separation of powers, and is thus unconstitutional.―Under our Constitution, government power is
divided among the three co-equal branches: Executive, Legislature, and Judiciary. Well-entrenched in our
jurisdiction is the principle of separation of powers, which ordains that each of the three great branches of
government is supreme in the exercise of its functions within its own constitutionally allocated sphere.
Lawmaking belongs to Congress, implementing the laws to the Executive, and settling legal disputes to
the Judiciary. Any encroachment on the functions of a co-equal branch by the other branches violates the
principle of separation of powers, and is thus unconstitutional.
Same; Separation of Powers; Legislative Power; View that the power to appropriate is the exclusive
legislative power to direct by law the payment of government funds under specified conditions or
specified purposes.―The Administrative Code of 1987 defines “appropriation” as “an authorization made
by law or other legislative enactment directing payment out of government funds under specified
conditions or for specified purposes.” Thus, the power to appropriate is the exclusive legislative power to
direct by law the payment of government funds under specified conditions or specified purposes. The
appropriation must state the specific purpose of the payment of government funds. The appropriation
must also necessarily state
27the specific amount since it is a directive to pay out government funds.
Same; Same; General Appropriations Act; View that the implementation of the General
Appropriations Act belongs exclusively to the President, and cannot be exercised by Congress. The
President cannot share with the Legislature, its committees or members the power to implement the
General Appropriations Act (GAA). The Legislature, its committees or members cannot exercise
functions vested in the President by the Constitution; otherwise, there will be a violation of the separation
of powers.―The GAA is a law. The implementation of the GAA belongs exclusively to the President,
and cannot be exercised by Congress. The President cannot share with the Legislature, its committees or
members the power to implement the GAA. The Legislature, its committees or members cannot exercise
functions vested in the President by the Constitution; otherwise, there will be a violation of the separation
of powers. The Legislature, its committees or members cannot also exercise any veto power over actions
or decisions of executive departments, bureaus or offices because this will divest the President of control
over the executive agencies. Control means the power to affirm, modify or reverse, and even to pre-empt,
the actions or decisions of executive agencies or their officials. Any provision of law requiring the
concurrence of the Legislature, its committees or members before an executive agency can exercise its
functions violates the President’s control over executive agencies, and is thus unconstitutional.
Same; Countrywide Development Fund (CDF); View that it is clear from the Countrywide
Development Fund (CDF) provisions of the 1994 General Appropriations Act (GAA) that the authority
vested in legislators was limited to the mere identification of projects; The President could change the
projects identified by legislators without the favorable endorsement of any congressional committee, and
even without the concurrence of the legislators who identified the projects.―It is clear from the CDF
provisions of the 1994 GAA that the authority vested in legislators was limited to the mere identification
of projects. There was nothing in the 1994 GAA that made identification of projects by legislators
mandatory on the President. The President could change the projects identified by legislators without
the favorable endorsement of any congressional committee, and even without the concurrence of
the legisla-
28tors who identified the projects. The Court ruled in PHILCONSA: The authority given to the
members of Congress is only to propose and identify projects to be implemented by the President. Under
Article XLI of the GAA of 1994, the President must perforce examine whether the proposals submitted
by members of Congress fall within the specific items of expenditures for which the Fund was set up, and
if qualified, he next determines whether they are in line with other projects planned for the locality.
Thereafter, if the proposed projects qualify for funding under the Fund, it is the President who shall
implement them. In short, the proposals and identifications made by members of Congress are
merely recommendatory.
Same; Funds; Words and Phrases; View that the term “funds” means appropriated funds, whether
savings or not. The term “savings” is much narrower, and must strictly qualify as such under Section 53
of the General Provisions of the 2013 General Appropriations Act, which is a verbatim reproduction of
the definition of “savings” in previous General Appropriations Act (GAA).―The Constitution expressly
states that what can be realigned are “savings” from an item in the GAA, and such savings can only be
used to augment another existing “item” in the “respective appropriations” of the Executive,
Legislature, Judiciary, and the Constitutional Commissions in the same GAA. The term “funds” in
Special Provision No. 4 is not the same as “savings.” The term “funds” means appropriated funds,
whether savings or not. The term “savings” is much narrower, and must strictly qualify as such
under Section 53 of the General Provisions of the 2013 GAA, which is a verbatim reproduction of the
definition of “savings” in previous GAAs. Section 53 of the 2013 GAA defines “savings” as follows: Sec.
53. Meaning of Savings and Augmentation. Savings refer to portions or balances of any programmed
appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the
completion or final discontinuance or abandonment of the work, activity or purpose for which the
appropriation is authorized; (ii) from appropriation balances arising from unpaid compensation and
related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriation
balances realized from the implementation of measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the
29required or planned targets, programs and services approved in this Act at a lesser cost.
Same; Same; View that the transfer of funds or appropriations is absolutely prohibited, unless the
funds qualify as “savings,” in which case the savings can be realigned to an existing item of
appropriation but only within the same branch or Constitutional Commission.―Funds, or
“appropriations” as used in the first clause of Section 25(5) of Article VI, cannot be transferred from one
branch to another branch or to a Constitutional Commission, or even within the same branch or
Constitutional Commission. Thus, funds or appropriations for the Office of the President cannot be
transferred to the Commission on Elections. Likewise, funds or appropriations for one department of the
Executive branch cannot be transferred to another department of the Executive branch. The transfer of
funds or appropriations is absolutely prohibited, unless the funds qualify as “savings,” in which case
the savings can be realigned to an existing item of appropriation but only within the same branch or
Same; Presidency; Delegation of Powers; View that the President’s constitutional power to realign
savings cannot be delegated to the Department Secretaries but must be exercised by the President
himself.―The President’s constitutional power to realign savings cannot be delegated to the Department
Secretaries but must be exercised by the President himself. Under Special Provision No. 4, the President’s
power to realign is delegated to Department Secretaries, which violates the Constitutional provision that it
is the President who can realign savings. In PHILCONSA, we ruled that the power to realign cannot be
delegated to the Chief of Staff of the Armed Forces of the Philippines because this power “can be
exercised only by the President pursuant to a specific law.” In Sanchez, we rejected the transfer of funds
because it was exercised by the Deputy Executive Secretary. We ruled in Sanchez that “[e]ven if the
DILG Secretary had corroborated the initiative of the Deputy Executive Secretary, it does not even
appear that the matter was authorized by the President.” Clearly, the power to realign savings must
be exercised by the President himself.
Same; Same; View that the power to release public funds authorized to be paid under the General
Appropriation Act is an Execu-
30tive function.―The power to release public funds authorized to be paid under the GAA is an
Executive function. However, under Special Provision No. 5, prior approval of either of the
Congressional Committees is required for the release of funds. Thus, the Congressional Committees
effectively control the release of funds to implement projects identified by legislators. Unless the funds
are released, the projects cannot be implemented. Without doubt, the Congressional Committees and
legislators are exercising Executive functions in violation of the separation of powers. The Congressional
Committees and the legislators are also divesting the President of control over the implementing agencies
with respect to the PDAF. A law that invests Executive functions on the Legislature, its committees or
members is unconstitutional for violation of the separation of powers.
Same; Same; Pork-Barrel System; View that the President’s line-item veto in appropriation laws is
intended to eliminate “wasteful parochial spending,” primarily the pork-barrel.―The President’s line-
item veto in appropriation laws is intended to eliminate “wasteful parochial spending,” primarily the
pork-barrel. Historically, the pork-barrel meant “appropriation yielding rich patronage benefits.” In the
Philippines, the pork-barrel has degenerated further as shown in the COA Audit Report on the 2007-2009
PDAF. The pork-barrel is mischievously included in lump-sum appropriations that fund much needed
projects. The President is faced with the difficult decision of either vetoing the lump-sum appropriation
that includes beneficial programs or approving the same appropriation that includes the wasteful pork-
barrel. To banish the evil of the pork-barrel, the Constitution vests the President with the line-item veto
power, which for its necessary and proper exercise requires the President to propose, and Congress to
enact, only line-item appropriations.
Same; Funds; View that the Constitution allows the creation of discretionary and special funds but
with certain specified conditions. The Constitution requires that these funds must have specific purposes
and can be used only for such specific purposes.―The Constitution allows the creation of discretionary
and special funds but with certain specified conditions. The Constitution requires that these funds
must have specific purposes and can be used only for such specific purposesDiscretionary funds
appropriated for particular officials . As stated in the Constitution: (6) shall be
31disbursed only for public purposes to be supported by appropriate vouchers and subject to
such guidelines as may be prescribed by law. x x x x (3) All money collected on any tax levied for
a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose
for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be
transferred to the general funds of the Government. (Boldfacing and italicization supplied) The
“discretionary funds” and “special funds” mentioned in the Constitution are sui generis items of
appropriation because they are regulated by special provisions of the Constitution.
Same; Same; Discretionary Funds; View that “discretionary funds” are appropriated for particular
officials who must use the funds only for public purposes in relation to the functions of their public
office.―“Discretionary funds” are appropriated for particular officials who must use the funds only for
public purposes in relation to the functions of their public office. The particular public officials must
support the use of discretionary funds with appropriate vouchers under guidelines prescribed by law.
“Discretionary funds” already existed in GAAs under the 1935 and 1973 Constitutions. They are items,
and not lump-sums, with specified conditions and guidelines. A valid appropriation includes the payment
of funds “under specified conditions.” The framers of the 1987 Constitution decided to regulate in the
Constitution itself the disbursement of discretionary funds “to avoid abuse of discretion in the use of
discretionary funds” in the light of the experience during the Martial Law regime when discretionary
funds “were spent for the personal aggrandizement of the First Family and some of their cronies.”
Same; Same; Same; View that there is nothing that prevents President Benigno S. Aquino III from
submitting an emergency supplemental appropriation bill that could be approved on the same day by the
Congress of the Philippines.―The balance of the 2013 PDAF, having reverted to the unappropriated
surplus or balances of the General Fund, can be the subject of an emergency supplemental appropriation
to aid the victims of Typhoon Yolanda as well as to fund the repair and reconstruction of facilities
damaged by the typhoon. When the Gulf Coast of the United States was severely damaged by Hurricane
Katrina on 29 August 2005, the U.S. President submitted to the U.S. Congress a request for an emergency
supple-
32mental budget on 1 September 2005. The Senate passed the request on 1 September 2005 while
the House approved the bill on 2 September 2005, and the U.S. President signed it into law on the same
day. It took only two days for the emergency supplemental appropriations to be approved and passed into
law. There is nothing that prevents President Benigno S. Aquino III from submitting an emergency
supplemental appropriation bill that could be approved on the same day by the Congress of the
Philippines. The President can certify such bill for immediate enactment to meet the public calamity
caused by Typhoon Yolanda.
Same; Same; Malampaya Fund; There is only a single subject to be financed by the Malampaya
Fund ― that is, the development and exploitation of energy resources. No other government program
would be funded by PD No. 910, except the exploration, exploitation and development of indigenous
energy resources as envisioned in the law’s Whereas clauses.―There is only a single subject to be
financed by the Malampaya Fund — that is, the development and exploitation of energy resources. No
other government program would be funded by PD No. 910, except the exploration, exploitation and
development of indigenous energy resources as envisioned in the law’s Whereas clauses, to wit:
WHEREAS, there is need to intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation and development of indigenous energy resources vital to economic growth;
WHEREAS, it is imperative that government accelerate the pace of, and focus special attention on,
energy exploration, exploitation and development in the light of encouraging results in recent oil
exploration and of world-wide developments affecting our continued industrial progress and well-being;
x x x The rule of ejusdem generis will apply if there is an enumeration of specific energy sources, such as
gas, oil, geothermal, hydroelectric, and nuclear, and then followed by a general phrase “and such other
energy sources,” in which case tidal, solar and wind power will fall under the phrase “other energy
sources.” In PD No. 910, no such or similar enumeration can be found. Instead, what we find is the sole
purpose for which the Malampaya Fund shall be used — that is, to finance “energy resource development
and exploitation programs and projects of the government.”
Same; Same; Same; Congress; View that Congress has the exclusive power to appropriate public
funds, and vesting the President
33with the power to determine the uses of the Malampaya Fund violates the exclusive constitutional
power of Congress to appropriate public funds.―Under the 1987 Constitution, determining the purpose
of the expenditure of government funds is an exclusive legislative power. The Executive can only
propose, but cannot determine the purpose of an appropriation. An appropriation cannot validly direct the
payment of government funds “for such other purposes as may be hereafter directed by the President,”
absent the proper application of the ejusdem generisrule. Section 8 of PD No. 910 authorizes the use of
the Malampaya Fund for other projects approved only by the President. To repeat, Congress has the
exclusive power to appropriate public funds, and vesting the President with the power to determine the
uses of the Malampaya Fund violates the exclusive constitutional power of Congress to appropriate public
funds.
Same; Same; Philippine Amusement and Gaming Corporation (PAGCOR) Funds; Delegation of
Powers; View that the phrase that the government’s share in the gross earnings of Philippine Amusement
and Gaming Corporation (PAGCOR) shall be used “to finance the priority infrastructure development
projects as may be directed and authorized by the Office of the President of the Philippines,” is an undue
delegation of the legislative power to appropriate.―Similar to PD No. 910, PD No. 1869 was issued
when then President Marcos exercised both executive and legislative powers. Under the 1987
Constitution, the President no longer wields legislative powers. The phrase that the government’s share in
the gross earnings of PAGCOR shall be used “to finance the priority infrastructure development
projects x x x as may be directed and authorized by the Office of the President of the Philippines ,”
is an undue delegation of the legislative power to appropriate.
Same; Same; Pork Barrel System; View that the supreme duty of the Supreme Court is to restore the
constitutional check-and-balance that was precisely intended to banish lump-sum appropriations and the
pork-barrel system. The peaceful and constitutional solution to banish all forms of the pork-barrel system
from our national life is for this Court to declare all lump-sum appropriations, whether proposed by the
Executive or enacted by the Legislature, as unconstitutional.―We have seen the outrage of the Filipino
people to the revulsive pork-barrel system spawned by this forbidden Executive-Legislative arrangement.
The Filipino people now realize that
34there are billions of pesos in the annual budget that could lift a large number of Filipinos out of
abject poverty but that money is lost to corruption annually. The Filipino people are now desperately in
search of a solution to end this blighted pork-barrel system. The solution lies with this Court, which must
rise to this historic challenge. The supreme duty of this Court is to restore the constitutional check-
and-balance that was precisely intended to banish lump-sum appropriations and the pork-barrel
system. The peaceful and constitutional solution to banish all forms of the pork-barrel system from our
national life is for this Court to declare all lump-sum appropriations, whether proposed by the Executive
or enacted by the Legislature, as unconstitutional. Henceforth, as originally intended in the Constitution,
the President shall submit to Congress only a line-item NEP, and Congress shall enact only a line-item
GAA. The Filipino people can then see in the GAA for what specific purposes and in what specific
amounts their tax money will be spent. This will allow the Filipino people to monitor whether their tax
money is actually being spent as stated in the GAA.
BRION, J., Concurring and Dissenting Opinion:
Constitutional Law; Delegation of Powers; View that no branch of government may delegate its
constitutionally-assigned powers and thereby disrupt the Constitution’s carefully laid out plan of
governance.―A necessary corollary to this arrangement is that no branch of government may delegate
its constitutionally-assigned powers and thereby disrupt the Constitution’s carefully laid out plan of
governance. Neither may one branch or any combination of branches deny the other or others their
constitutionally mandated prerogatives — either through the exercise of sheer political dominance or
through collusive practices — without committing a breach that must be addressed through our
constitutional processes. To be sure, political dominance, whether the brazen or the benign kind, should
be abhorred by our people for we should have learned our lessons by now. Thus, Congress — the
government’s policy making body — may not delegate its constitutionally-assigned power to make laws
and to alter and repeal them, in the same manner that the President — who enforces and implements the
laws passed by Congress — cannot pass on to the Congress or to the Judiciary, its enforcement or
implementation powers.35
Constitutional Law; Congress; General Appropriations Law; View that Congress carries out the
power of the purse through the appropriation of funds under a general appropriations law (titled as the
General Appropriations Act or the GAA) that can easily be characterized as one of the most important
pieces of legislation that Congress enacts each year.―Under our system of government, part of the
legislative powers of Congress is the power of the purse which, broadly described, is the power to
determine the areas of national life where government shall devote its funds; to define the amount of
these funds and authorize their expenditure; and to provide measures to raise revenues to defray the
amounts to be spent. This power is regarded as the “the most complete and effectual weapon with which
any constitution can arm the immediate representatives of the people.” By granting Congress this power,
the Constitution allows the Filipino people, through their representatives, to effectively shape the nation’s
future through the control of the funds that render the implementation of national plans possible.
Consistent with the separation of powers and the check and balance doctrines, the power of the purse also
allows Congress to control executive spending as the Executive actually disburses the money that
Congress sets aside and determines to be available for spending. Congress carries out the power of the
purse through the appropriation of funds under a general appropriations law (titled as the General
Appropriations Act or the GAA) that can easily be characterized as one of the most important pieces of
legislation that Congress enacts each year. For this reason, the 1987 Constitution (and previous
Constitutions) has laid down the general framework by which Congress and the Executive make
important decisions on how public funds are raised and spent — from the policy-making phase to the
actual spending phase, including the raising of revenues as source of government funds.
Same; Funds; Malampaya Funds; General Appropriations Bill; View that Section 22, Article VII of
the 1987 Constitution refers only to the general appropriations bill so that there may be no need to report
all sources of government revenue, particularly those emanating from funds like the Malampaya
Fund.―Arguably, Section 22, Art. VII of the 1987 Constitution refers only to the general appropriations
bill so that there may be no need to report all sources of government revenue, particularly those
emanating from funds like the Malampaya Fund. The power of Congress, however, will be less
36than plenary if this omission will happen as Congress would then be denied a complete picture of
government revenues and would consequently be denied its rightful place in setting national policies on
matters of national importance, among them energy matters. The Constitution would similarly be violated
if Congress cannot also demand that the revenues of special funds (like the Malampaya Fund) be reported
together with a listing of their items of expenditures. Since the denial would be by the Office of the
President, the incapacity of Congress would be because of intrusive action by the Executive into what is
otherwise a congressional preserve.
Same; Lump-Sum Appropriations; Priority Development Assistance Fund (PDAF); View that a
lump sum appropriation like the Priority Development Assistance Fund cannot and should not pass
Congress unless the Executive and the Legislative branches collude, in which case, the turn of the
Supreme Court to be an active constitutional player in the budget process comes into play.―A lump sum
appropriation like the PDAF cannot and should not pass Congress unless the Executive and the
Legislative branches collude, in which case, the turn of this Court to be an active constitutional player in
the budget process comes into play. The PDAF, as explained in the Opinions of Justice Carpio and
Bernabe, is a prime example of a lump sum appropriation that, over the years, for reasons beneficial to
both branches of government, have successfully negotiated the congressional legislative process, to the
detriment of the general public.
Same; Oversight Power; View that oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to assess executive conformity with the
congressional perception of public interest.―The last phase of the budgetary process is the budget
accountability phase that Congress is empowered to enforce in order to check on compliance with its
basic intents in allocating measured funds under the appropriation act. At the budget hearings during the
legislation phase, Congress already checks on the need for the recommended appropriations (as Congress
may delete a recommended appropriation that it perceives to be unneeded), and on the propriety,
efficiency and effectiveness of
37budget implementation, both past and impending. Technically, this portion of the budgetary
exercise involves legislative scrutiny that is part of the overall oversight powers of Congress over the
budget. Another part of the oversight authority is legislative investigation. Former Chief Justice Puno
expounded on this aspect of the budgetary process in his Separate Opinion in Macalintal v. Commission
on Elections, 405 SCRA 614 (2003), and he best sums up the breadth and scope of this power, as follows:
Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly,
oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to
eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative
authority, and (e) to assess executive conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to
the checks and balances inherent in a democratic system of government.
Same; Funds; Malampaya Funds; Lump-Sum Appropriations; Separation of Powers; View that the
Section 8, P.D. No. 910 funds or the Malampaya Fund consist of two components: the funds “to be used
to finance energy resource development and exploitation programs and projects,” and the funds “for
such other purposes as may be...directed by the President.” I join Justice Carpio in the view that the
second “for such other purposes” component is a complete nullity as it is an undue delegation of
legislative power. I submit that this is additionally objectionable for being a part of a constitutionally
objectionable lump sum payment that violates the separation of powers doctrine.―The Section 8, P.D.
No. 910 funds or the Malampaya Fund consist of two components: the funds “to be used to finance
energy resource development and exploitation programs and projects,” and the funds “for such other
purposes as may be…directed by the President.” I join Justice Carpio in the view that the second “for
such other purposes” component is a complete nullity as it is an undue delegation of legislative power. I
submit that this is additionally objectionable for being a part of a constitutionally objectionable lump sum
payment that violates the separation of powers doctrine. I will discuss this view under the first component
of Section 8. I vote
38to strike down the “energy” component of Section 8, P.D. No. 910 as it is a discretionary lump
sum fund that is not saved at all by its energy development and exploitation purpose. It is a pure and
simple pork barrel granted to the President under a martial law regime decree that could have escaped
invalidity then under the 1973 Constitution and the prevailing unusual times, but should be struck down
now for being out of step with the requirements of the 1987 Constitution. As a fund, it is a prohibited
lump sum because it consists of a fund of indefinite size that has now grown to gigantic proportions,
whose accounts and accounting are far from the usual in government, and which is made available to the
President for his disposition, from year to year, with very vague controls, and free from the legal
constraints of the budget process now in place under the 1987 Constitution. Admittedly, it is a fund raised
and intended for special purposes but the characterization “special purpose” is not reason enough and is
not a magical abracadabra phrase that could whisk a fund out of the constitutional budget process, defying
even common reason in the process.
Same; Same; Same; Same; Same; View that the legitimacy of the present status of the fund is
questionable, particularly its purpose and lack of specificity; its lump sum nature and its disbursement
solely at the discretion of one man, unchecked by any other; how and why a multi-project and multi-
activity fund covering many projects and activities, now and in the future, should be held at the discretion
of one man; and the legal situation where the power of Congress and its participation in national
policymaking through the budget process is disregarded.―I question the legitimacy of the present status
of the fund, particularly its purpose and lack of specificity; its lump sum nature and its disbursement
solely at the discretion of one man, unchecked by any other; how and why a multi-project and multi-
activity fund covering many projects and activities, now and in the future, should be held at the discretion
of one man; and the legal situation where the power of Congress and its participation in national
policymaking through the budget process is disregarded. All these can be encapsulated as violations of
the doctrines of separation of powers and checks and balances which can be addressed and remedied if
only the fund can be subjected to the usual budget processes, with adjustments that circumstances of the
fund and its use would require. Lest this conclusion be misunderstood, I do not per se take the position
that all lump sum appropriations should be disal-
39lowed as this would be an extreme position that disregards the realities of national life. But the
use of lump sums, to be allowed, should be within reason acceptable under the processes of the
Constitution, respectful of the constitutional safeguards that are now in place, and understandable to the
people based on their secular understanding of what is happening in government.
Same; Same; Same; Indirect Contempt; Department of Budget and Management (DBM) Circular
Letter No. 2013-8; View that the issuance of the Department of Budget and Management (DBM) Circular
Letter No. 2013-8 is prima facie an indirect contempt for which the DBM Secretary himself should be
liable unless he can show why he should not be punished.―Under the Rules of Court, contempt is
classified into direct and indirect or constructive contempt. Direct contempt is misbehavior in the
presence of or so near a court or judge as to obstruct or interrupt the proceedings before the same. Where
the act of contumacy is not committed in facie curiae, or “in the presence of or so near a court or
judge, i.e., perpetrated outside the sitting of the court, it is considered indirect or constructive contempt,
and may include “disobedience of or resistance to a lawful writ, process, order judgment, or command of
a court, or injunction granted by a court or judge,” or “(a)ny abuse of or any unlawful interference with
the process or proceedings of a court not constituting direct contempt,” or “any improper conduct tending,
directly, or indirectly to impede, obstruct or degrade the administration of justice.” Based on this
definition and classification, the issuance of the DBM Circular Letter is prima facie an indirect contempt
for which the DBM Secretary himself should be liable unless he can show why he should not be
punished. As an element of due process, he must now be directed by resolution to explain why he should
not be penalized for issuing and enforcing Circular Letter No. 2013-8 dated September 27, 2013 despite
the Court’s TRO.
LEONEN, J., Concurring Opinion:
Constitutional Law; Priority Development Assistance Fund (PDAF); Presidential Social Fund;
View that Title XLIV known as the Priority Development Assistance Fund (PDAF) in the 2013 General
Appropriations Act (Republic Act No. 10352) is unconstitutional; The purpose of the Presidential Social
Fund in Title IV, Section 12 of Presidential Decree No. 1869, as amended, “to finance the priority
40infrastructure development projects” is also unconstitutional.―Title XLIV known as the Priority
Development Assistance Fund (PDAF) in the 2013 General Appropriations Act (Republic Act No.
10352) is unconstitutional. We, thus, overturn the holdings of various cases starting with Philippine
Constitution Association v. Enriquez, 235 SCRA 506 (1994), and Sarmiento v. The Treasurer of the
Philippines. Presidential Decree No. 910 does not sanction the unmitigated and unaccountable use of
income derived from energy resources. The purpose of the Presidential Social Fund in Title IV, Section
12 of Presidential Decree No. 1869, as amended, “to finance the priority infrastructure development
projects” is also unconstitutional.
Same; Presidency; Immunity from Suit; View that the doctrine of the non-suability of the President
is well settled. This includes any civil or criminal cases; This does not mean, however, that the President
cannot be made accountable. He may be impeached and removed. Likewise, he can be made criminally
and civilly liable in the proper case after his tenure as President.―The doctrine of the non-suability of
the President is well settled. This includes any civil or criminal cases. It is part of the Constitution by
implication. Any suit will degrade the dignity necessary for the operations of the Office of the President.
It will additionally provide either a hindrance or distraction from the performance of his official duties
and functions. Also, any contrary doctrine will allow harassment and petty suits which can impair
judgment. This does not mean, however, that the President cannot be made accountable. He may be
impeached and removed. Likewise, he can be made criminally and civilly liable in the proper case after
his tenure as President.
Same; Judicial Review; Actual Case or Controversy; Advisory Opinions; View that basic in
litigation raising constitutional issues is the requirement that there must be an actual case or
controversy. The Supreme Court cannot render an advisory opinion.―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
41would 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.
Same; Same; Same; View that the requirement of an “actual case,” thus, means that the case before
this Court “involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic based on extra-legal or other similar considerations
not cognizable by a court of justice.”―The requirement of an “actual case,” thus, means that the case
before this Court “involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial resolution; the case must not be moot or academic based on extra-legal or other similar
considerations not cognizable by a court of justice.” Furthermore, “the controversy needs to be definite
and concrete, bearing upon the legal relations of parties who are pitted against each other due to their
adverse legal interests.” Thus, the adverse position of the parties must be sufficient enough for the case to
be pleaded and for this Court to be able to provide the parties the proper relief/s prayed for.
Same; Same; Judicial Department; View that in cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof.―The political question doctrine
emerged as a corollary to the nature of judicial review. In the landmark case of Angara v. Electoral
Commission, 63 Phil. 139 (1936), the essence of the duty of judicial review was explained, thus: But in
the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments
42of the government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just where one leaves off and the other begins. In
times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.
Same; Grave Abuse of Discretion; Words and Phrases; View that the Supreme Court, through Chief
Justice Davide, defined grave abuse of discretion as “such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction; or, in other words, where the power is exercised in an
arbitrary manner by reason of passion or personal hostility. It must be so patent and gross as to amount
to an evasion of positive duty or to a virtual refusal to perform the duly enjoined or to act at all in
contemplation of law.”―This Court, through Chief Justice Davide, defined grave abuse of discretion as
“x x x such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; or, in
other words, where the power is exercised in an arbitrary manner by reason of passion or personal
hostility. It must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duly enjoined or to act at all in contemplation of law.” After a review of the facts
established in the case and application of the relevant provisions of law, it then held that the House of
Representatives did not commit grave abuse of discretion.
Same; Judicial Review; Moot and Academic; View that in SANLAKAS v. Executive Secretary Reyes,
421 SCRA 656 (2004), the Supreme Court ruled that while the case has become moot, “[n]evertheless,
courts will decide a question, otherwise moot, if it is “capable of repetition yet evading
review.”―In SANLAKAS v. Executive Secretary Reyes, 421 SCRA 656 (2004), this Court ruled that
while the case has become moot, “[n]evertheless, courts will decide a question, otherwise moot, if it is
“capable of repetition yet evading review.”43
Same; Same; Same; View that in SANLAKAS v. Executive Secretary Reyes, 421 SCRA 656 (2004),
Petitions were filed to assail the issuance of Proclamation No. 427 declaring a state of rebellion during
the so-called Oakwood occupation in 2003. While the Supreme Court conceded that the case was mooted
by the issuance of Proclamation No. 435, which declared that the state of rebellion ceased to exist, it still
decided the case.―In SANLAKAS, Petitions were filed to assail the issuance of Proclamation No. 427
declaring a state of rebellion during the so-called Oakwood occupation in 2003. While this Court
conceded that the case was mooted by the issuance of Proclamation No. 435, which declared that the state
of rebellion ceased to exist, it still decided the case. This Court pointed out that the issue has yet to be
decided definitively, as evidenced by the dismissal of this Court of previous cases involving the same
issue due to mootness: Once before, the President on May 1, 2001 declared a state of rebellion and called
upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No.
1. On that occasion, “ ‘an angry and violent mob armed with explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons’ assaulted and attempted to break into Malacañang.” Petitions were filed
before this Court assailing the validity of the President’s declaration. Five days after such declaration,
however, the President lifted the same. The mootness of the petitions in Lacson v. Perez and
accompanying cases precluded this Court from addressing the constitutionality of the declaration. To
prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the
validity of the declaration of a state of rebellion in the exercise of the President’s calling out power,
the mootness of the petitions notwithstanding.
Constitutional Law; Separation of Powers; Priority Development Assistance Fund (PDAF); View
that the concepts of accountability and separation of powers are fundamental values in our constitutional
democracy. The effect of the use of the Priority Development Assistance Fund can have repercussions on
these principles. Yet, it is difficult to discover anomalies if any.―The concepts of accountability and
separation of powers are fundamental values in our constitutional democracy. The effect of the use of the
Priority Development Assistance Fund can have repercussions on these principles. Yet, it is difficult to
discover anomalies if any. It took the Commission on Audit some time to make its special report for a
period ending in
442009. It is difficult to expect such detail from ordinary citizens who wish to avail their rights as
taxpayers. Clearly, had it not been for reports in both mainstream and social media, the public would not
have been made aware of the magnitude.
Remedial Law; Judgments; Stare Decisis; View that stare decisis is a functional doctrine necessary
for courts committed to the rule of law. It is not, however, an encrusted and inflexible canon. Slavishly
adhering to precedent potentially undermines the value of a Judiciary.―Respondents also argued that we
should continue to respect our precedents. They invoke the doctrine of stare decisis. Stare decisis is a
functional doctrine necessary for courts committed to the rule of law. It is not, however, an encrusted and
inflexible canon. Slavishly adhering to precedent potentially undermines the value of a Judiciary.
Constitutional Law; General Appropriations Bill; View that the General Appropriations Bill is
considered by Congress in three readings like other pieces of legislation.―The President first submits to
Congress a “budget of expenditures and sources of financing” in compliance with Article VII, Section 22
which provides thus: The President shall submit to the Congress, within thirty days from the opening of
every regular session as the basis of the general appropriations bill, a budget of expenditures and sources
of financing, including receipts from existing and proposed revenue measures. This budget of
expenditures and sources of financing (also called the National Expenditure Plan) is first filed with the
House of Representatives and can only originate from there. Thus, in Article VI, Section 24: All
appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in the House of Representatives, but the Senate
may propose or concur with amendments. Thereafter, the General Appropriations Bill is considered by
Congress in three readings like other pieces of legislation. Should it become necessary, a bicameral
committee is convened to harmonize the differences in the Third Reading copies of each Legislative
chamber. This is later on submitted to both the House and the Senate for ratification. The bill as approved
by Congress shall then be presented to the President for approval. The President, in addition to a full
approval or veto, is granted the power of an item veto. Article VI, Section 27 (2) provides: The President
shall have the power to veto any particular item or
45items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to
which he does not object. We have had, in several cases, interpreted the power of item veto of the
President.
Same; Priority Development Assistance Fund (PDAF); View that nowhere in the Constitution does
it allow specific members of the House of Representatives or the Senate to implement projects and
programs. Their role is clear. Rather, it is the local government units that are given the prerogative to
execute projects and programs.―The Executive is given the task of preparing the budget and the
prerogative to spend from an authorized budget. The Legislature, on the other hand, is given the power to
authorize a budget for the coming fiscal year. This power to authorize is given to the Legislature
collectively. Nowhere in the Constitution does it allow specific members of the House of Representatives
or the Senate to implement projects and programs. Their role is clear. Rather, it is the local government
units that are given the prerogative to execute projects and programs.
Same; Congress; View that the members of the Legislature do not do the formal audit of
expenditures. This is the principal prerogative of the Commission on Audit.―The members of the
Legislature do not do the formal audit of expenditures. This is the principal prerogative of the
Commission on Audit. Rather, they benefit from such formal audits. These formal audits assist the
members of the House of Representatives and the Senators to do their constitutional roles. The formal
audits also make public and transparent the purposes, methods used, and achievements and failures of
each and every expenditure made on behalf of the government so that their constituencies can judge them
as they go on to authorize another budget for another fiscal year.
Same; Same; View that interference in any government project other than that of congressional
activities is a direct violation of Article VI, Section 14 of the 1987 Constitution in so far as Title XLIV of
the 2013 General Appropriations Act allows participation by Congress.―Any system where members of
Congress participate in the execution of projects in any way compromises them. It encroaches on their
ability to do their constitutional duties. The violation is apparent in two ways: their ability to efficiently
make judgments to
46authorize a budget and the interference in the constitutional mandate of the President to be the
Executive. Besides, interference in any government project other than that of congressional activities is a
direct violation of Article VI, Section 14 of the 1987 Constitution in so far as Title XLIV of the 2013
General Appropriations Act allows participation by Congress.
Same; Special Allotment Release Order (SARO); View that under National Budget Circular No.
545, the appropriations shall be made available to the agency of the government upon the issuance by the
Department of Budget and Management of either an Agency Budget Matrix or a Special Allotment
Release Order.―Generally, the first step to budget execution is the issuance by the Department of Budget
and Management of Guidelines on the Release of Funds. For the year 2013, the Department of Budget
and Management issued National Budget Circular No. 545 entitled “Guidelines for the Release of Funds
for FY 2013.” Under National Budget Circular No. 545, the appropriations shall be made available to the
agency of the government upon the issuance by the Department of Budget and Management of either an
Agency Budget Matrix or a Special Allotment Release Order. The Agency Budget Matrix will act as a
comprehensive release of allotment covering agency-specific budgets that do not need prior clearance.
The Special Allotment Release Order is required for those allotments needing clearance, among others.
Same; Separation of Powers; View 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. ―This
Court has implied that the participation of Congress is limited to the exercise of its power of oversight.
Any post-enactment congressional measure such as this should be limited to scrutiny and investigation. 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. x x x
As such, it is only upon its effectivity that a law
47may be executed and the executive branch acquires the duties and powers to execute the said law.
Before that point, the role of the executive branch, particularly of the President, is limited to approving or
vetoing the law. 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.
Same; Same; View that the participation of members of Congress — even if only to recommend —
amounts to an unconstitutional post-enactment interference in the role of the Executive. It also defeats the
purpose of the powers granted by the Constitution to Congress to authorize a budget.―[T]o forestall the
danger of congressional encroachment “beyond the legislative sphere,” the Constitution imposes two
basic and related constraints on Congress. It may not vest itself, any of its committees or its members
with either Executive or Judicial power. When Congress exercises its legislative power, it must follow the
“single, finely wrought and exhaustively considered, procedures” specified under the Constitution,
including the procedure for enactment of laws and presentment.” The participation of members of
Congress — even if only to recommend — amounts to an unconstitutional post-enactment interference
in the role of the Executive. It also defeats the purpose of the powers granted by the Constitution to
Congress to authorize a budget.
Same; Same; Priority Development Assistance Fund (PDAF); View that the Priority Development
Assistance Fund is an appropriation for each Member of the House of Representative and each Senator.
This is why this item in the General Appropriations Act of 2013 is an invalid appropriation. It is
allocated for use which is not inherent in the role of a member of Congress. The power to spend is an
Executive constitutional discretion — not a Legislative one.―The equal allocation among members of the
House of Representatives and more so among Senators shows the true color of the Priority Development
Assistance Fund. It is to give a lump sum for each member of the House of Representatives and the
Senate for them to spend on projects of their own choosing. This is usually for any purpose whether
among their constituents and whether for the present or future. In short, the Priority Development
Assistance Fund is an appropriation for each Member of the House of Representative and
48each Senator. This is why this item in the General Appropriations Act of 2013 is an invalid
appropriation. It is allocated for use which is not inherent in the role of a member of Congress. The power
to spend is an Executive constitutional discretion — not a Legislative one.
Same; Same; Same; View that instead of Congress acting collectively with its elected
representatives deciding on the magnitude of the amounts for spending, it will be the officer who either
recommends or spends who decides what the budget will be. This is not what is meant when the
Constitution provides that “no money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.” When no discernible purpose is defined in the law, money is paid out for a
public official and not in pursuance of an appropriation.―An item becomes invalid when it is just an
amount allocated to an official absent a purpose. In such a case, the item facilitates an unconstitutional
delegation of the power to authorize a budget. Instead of Congress acting collectively with its elected
representatives deciding on the magnitude of the amounts for spending, it will be the officer who either
recommends or spends who decides what the budget will be. This is not what is meant when the
Constitution provides that “no money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.” When no discernible purpose is defined in the law, money is paid out for a
public official and not in pursuance of an appropriation.
Same; Same; Same; View that I cannot join Justice Brion in his view that even the phrase “to be
used to finance energy resource development and exploitation programs and projects of the government”
in Section 8 of Presidential Decree No. 910 is too broad; The kinds of projects relating to energy
resource development and exploitation are determinable.―I regret, however, that I cannot join Justice
Brion in his view that even the phrase “to be used to finance energy resource development and
exploitation programs and projects of the government” in Section 8 of Presidential Decree No. 910 is too
broad. This is even granting that this phrase is likewise qualified with “as may be hereafter determined by
the President.” The kinds of projects relating to energy resource development and exploitation are
determinable. There are obvious activities that do not square with this intent, for instance, expenditures
solely for agriculture. The extent of latitude that the President is given is also commensurate with the
49importance of the energy sector itself. Energy is fundamental for the functioning of government
as well as the private sector. It is essential to power all projects whether commercial or for the public
interest. The formulation, thus, reasonably communicates discretion but puts it within reasonable bounds.
In my view, and with due respect to the opinion of Justice Brion, the challenge of this phrase’s
unconstitutionality lacks the clarity that should compel us to strike it down.
Same; Same; Same; View that a member of the House of Representatives or a Senator is not an
automated teller machine or ATM from which the public could withdraw funds for sundry private
purposes; Their role is to use their experience and their understanding of their constituents to craft policy
articulated in laws.―A member of the House of Representatives or a Senator is not an automated teller
machine or ATM from which the public could withdraw funds for sundry private purposes. They should
be honorable elected officials tasked with having a longer and broader view. Their role is to use their
experience and their understanding of their constituents to craft policy articulated in laws. Congress is
entrusted to work with political foresight. Congress, as a whole, checks the spending of the President as it
goes through the annual exercise of deciding what to authorize in the budget. A level of independence and
maturity is required in relation to the passage of laws requested by the Executive. Poverty and
inefficiencies in government are the result of lack of accountability. Accountability should no longer be
compromised.
Same; Same; Same; Pork Barrel System; View that pork barrel funds historically encourage dole-
outs.―Pork barrel funds historically encourage dole-outs. It inculcates a perverse understanding of
representative democracy. It encourages a culture that misunderstands the important function of public
representation in Congress. It does not truly empower those who are impoverished or found in the
margins of our society. There are better, more lasting and systematic ways to help our people survive. A
better kind of democracy should not be the ideal. It should be the norm. We listen to our people as we
read the Constitution. We watch as others do their part and are willing to do more. We note the public’s
message: Politics should not be as it was. Eradicate greed. Exact accountability. Build a government that
has a collective passion for real social justice.
50
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari.
Eduardo V. Bringas and Alfredo B. Molo III, et al. for petitioners Greco Antonious Beda B. Belgica, et al.
PERLAS-BERNABE,J.:

“Experience is the oracle of truth.” 1
– James Madison
Before the Court are consolidated petitions 2 taken under Rule 65 of the Rules of Court, all of which assail the
constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court shall theretofore
discuss the system’s conceptual underpinnings before detailing the particulars of the constitutional challenge.
The Facts
Pork Barrel: General Concept. I.
“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
_______________
1The Federalist Papers, Federalist No. 20.
2 Rollo (G.R. No. 208566), pp. 3-51; Rollo (G.R. No. 208493), pp. 3-11; and Rollo (G.R. No. 209251), pp. 2-8.
3 “ ‘[P]ork barrel spending,’ a term that traces its origins back to the era of slavery before the U.S. Civil War, when
slave owners occasionally would present a barrel of salt pork as a gift to their slaves. In the modern usage, the term refers
to congressmen scrambling to set aside money for pet projects in their districts.” (Drudge, Michael W. “ ‘Pork Barrel’
Spending Emerging as Presidential Campaign Issue,” August 1, 2008
http://iipdigital.usembassy.gov/st/english/article/2008/08/20080801181504lcnirellep0.1261713.html#axzz2iQr
I8mHM [visited October 17, 2013].)
51porcine feast to assuage their hunger with morsels coming from the generosity of their well-fed master. 4 This
practice was later compared to the actions of American legislators in trying to direct federal budgets in favor of their
districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to
political bills that “bring home the bacon” to a legislator’s district and constituents. 6 In a more technical sense, “Pork
Barrel” refers to an appropriation of government spending meant for localized projects and secured solely or
primarily to bring money to a representative’s district.7 Some scholars on the subject further use it to refer
to legislative control of local appropriations.8
In the Philippines, “Pork Barrel” has been commonly referred to as lump-sum, discretionary funds of Members
of the Legislature,9 although, as will be later discussed, its usage would evolve in reference to certain funds of the
Executive.
_______________
4Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, p.
786, citing Bernas, “From Pork Barrel to Bronze Caskets,” Today, January 30, 1994.
5Heaser, Jason, “Pulled Pork: The Three Part Attack on Non-Statutory Earmarks,” Journal of Legislation, 35 J. Legis.
32 (2009). <http://heinonline.org/HOL/LandingPage?collection=&handle =hein.journals/jleg35&div=6&id=&page=>
(visited October 17, 2013).
6Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, “Understanding the ‘Pork
Barrel,’” p. 2.<http://www.congress.gov.ph/download/14th/pork_barrel.pdf> (visited October 17, 2013).
7Chua, Yvonne T. and Cruz, Booma, B., “Pork is a Political, Not A Developmental, Tool.”
<http://pcij.org/stories/2004/pork.html> [visited October 22, 2013].) See also Rollo (G.R. No. 208566), pp. 328-329.
8Morton, Jean, “What is a Pork Barrel?” Global Granary, Lifestyle Magazine and Common Place Book Online:
Something for Everyone, August 19, 2013. <http://www.globalgranary.org/2013/08/
19/what-is-a-pork-barrel/#.UnrnhFNavcw > (visited October 17, 2013).
9Jison, John Raymond, “What does the ‘pork barrel’ scam suggest about the Philippine government?” International
Association for
52
History of Congressional Pork Barrel in the Philippines. II.
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.
_______________
Political Science Students, September 10, 2013. <http://www.iapss.org/ index.php/articles/item/93-what-does-the-
pork-barrel-scam-suggest-about-the-philippine-government> (visited October 17, 2013). See also Llanes, Jonathan, “Pork
barrel – Knowing the issue,” Sunstar Baguio, October 23, 2013. <http://www.sunstar.com.ph/
baguio/opinion/2013/09/05/llanes-porkbarrel-knowing-issue-301598> (visited October 17, 2013).
10Entitled “AN ACT MAKING APPROPRIATIONS FOR PUBLIC WORKS,” approved on March 10, 1922.
11“Act 3044, the first pork barrel appropriation, essentially divided public works projects into two types. The first
type —national and other buildings, roads and bridges in provinces, and lighthouses, buoys and beacons, and necessary
mechanical equipment of lighthouses — fell directly under the jurisdiction of the director of public works, for which his
office received appropriations. The second group — police barracks, normal school and other public buildings, and certain
types of roads and bridges, artesian wells, wharves, piers and other shore protection works, and cable, telegraph, and
telephone lines — is the forerunner of the infamous pork barrel.
Although the projects falling under the second type were to be distributed at the discretion of the secretary of
commerce and communications, he needed prior approval from a joint committee elected by the Senate and House
of Representatives. The nod of either the joint committee or a committee member it had authorized was also
required before the commerce and communications secretary could transfer unspent portions of one item to
another item.” (Emphases supplied) (Chua, Yvonne T. and Cruz, Booma, B., “Pork by any name,” VERA Files, August
23, 2013. <http://verafiles.org/pork-by-any-name/> [visited October 14, 2013]).
53Particularly, in the area of fund release, Section 3 12provides that the sums appropriated for certain public works
projects” shall be distributed x x x subject to the approval of a joint committee elected by the Senate and the
13
House of Representatives.” “[T]he 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 documented 15 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
_______________
12The sums appropriated in paragraphs ( 3. Sec. c), (g), (l), and (s) of this Act shall be available for immediate
expenditure by the Director of Public Works, but those appropriated in the other paragraphs shall be distributed in the
discretion of the Secretary of Commerce and Communications, subject to the approval of a joint committee elected by
the Senate and the House of Representatives. The committee from each House may authorize one of its members to
approve the distribution made by the Secretary of Commerce and Communications, who 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. (Emphases supplied)
13Those Section 1 (c), (g), (l), and (s) of Act 3044 “shall be available for immediate expenditure by the Director of
Public Works.”
14Section 3, Act 3044.
15Chua, Yvonne T. and Cruz, Booma, B., “Pork by any name,” VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013).
54transferred 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
_______________
16Id.
17Id.
18Id.
19Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, “Understanding the
‘Pork Barrel,’ ” <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf> (visited October 17, 2013).
55Aid to Local Government Units.” Based on reports, 20 it was under the SLDP that the practice of giving lump-
sum allocations to individual legislators began, with each assemblyman receiving P500,000.00. Thereafter,
assemblymen would communicate their project preferences to the Ministry of Budget and Management for
approval. Then, the said ministry would release the allocation papers to the Ministry of Local Governments, which
would, in turn, issue the checks to the city or municipal treasurers in the 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
Post-Martial Law Era: C.
Corazon Cojuangco Aquino Administration
(1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy, “Congressional
Pork Barrel” was revived in the form of the “Mindanao Development Fund” and the “Visayas Development
Fund” which were created with lump-sum appropriations of P480 Million and P240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in
_______________
21Id.
22Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP),
Special Audits Office Report No. 2012-03, August 14, 2013 (CoA Report), p. 2.
561989. 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 P2.3 Billion to cover “small local infrastructure and other priority community
projects.”
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to be
released directly to the implementing agencies but “subject to the submission of the required list of projects and
activities.” Although the GAAs from 1990 to 1992 were silent as to the amounts of allocations of the individual
legislators, as well as their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving P12.5 Million each in CDF funds, while Senators were receiving P18 Million each,
without any limitation or qualification, and that they could identify any kind of project, from hard or infrastructure
projects such as roads, bridges, and buildings
_______________
23Ilagan, Karol, “Data A Day; CIA, CDF, PDAF? Pork is pork is pork,” Moneypolitics, A Date Journalism Project
for the Philippine Center for Investigative Journalism, August 1, 2013 <http://money
politics.pcij.org/data-a-day/cia-cdf-pdaf-pork-is-pork-is-pork/> (visited October 14, 2013).
24Republic Act No. (RA) 6831.
25Special Provision 1, Article XLIV, RA 7078 (1991 CDF Article), and Special Provision 1, Article XLII (1992), RA
7180 (1992 CDF Article) are similarly worded as follows: Special Provision
1.Use and Release of Funds. The amount herein appropriated shall be used for infrastructure and other priority
projects and activities upon approval by the President of the Philippines and shall be released directly to the appropriate
implementing agency [(x x x for 1991)], subject to the submission of the required list of projects and activities.
(Emphases supplied)
57to “soft projects” such as textbooks, medicines, and scholarships. 27

D.Fidel Valdez Ramos (Ramos) Administration
(1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be made upon
the submission of the list of projects and activities identified by, among others, individual legislators . For the
first time, the 1993 CDF Article included an allocation for the Vice-President.29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.
_______________
27Id.
28Special Provision 1, Article XXXVIII, RA 7645 (1993 CDF Article) provides:
Special Provision
1.Use and Release of Funds. The amount herein appropriated shall be used for infrastructure and other priority
projects and activities as proposed and identified by officials concerned according to the following allocations:
Representatives, P12,500,000 each; Senators P18,000,000 each; Vice-President, P20,000,000.
The fund shall be automatically released quarterly by way of Advice of Allotment and Notice of Cash Allocation
directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon
submission of the list of projects and activities by the officials concerned. (Emphases supplied)
29See Special Provision 1, 1993 CDF Article; id.
58In 1994,30 1995,31 and 1996,32 the GAAs contained the same
_______________
30Special Provision 1, Article XLI, RA 7663 (1994 CDF Article) provides:
Special Provisions
1.Use and Release of Funds. The amount herein appropriated shall be used for infrastructure, purchase of
ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as
proposed and identified by officials concerned according to the following allocations: Representatives, P12,500,000
each; Senators P18,000,000 each; Vice-President, P20,000,000; PROVIDED, That, the said credit facilities shall be
constituted as a revolving fund to be administered by a government financial institution (GFI) as a trust fund for lending
operations. Prior years releases to local government units and national government agencies for this purpose shall be
turned over to the government financial institution which shall be the sole administrator of credit facilities released from
this fund.
The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation
directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon
31Special Provision 1, Article XLII, RA 7845 (1995 CDF Article) provides:
Special Provisions
1.Use and Release of Funds. The amount herein appropriated shall be used for infrastructure, purchase of
equipment and other priority projects and activities as proposed and identified by officials concerned according to the
following allocations: Representatives, P12,500,000 each; Senators P18,000,000 each; Vice-President, P20,000,000.
The fund shall be automatically released semi-annually by way of Advice of Allotment and Notice of Cash Allocation
directly to the designated implementing agency not later than five (5) days after the beginning of each semester upon
59provisions 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 Appropriationson the releases made from the funds.33
_______________
Special Provisions
Use and Release of Fund. The amount herein appropriated shall be used for infrastructure, purchase of equipment and
other priority projects and activities, including current operating expenditures, except creation of new plantilla position
1. s, as proposed and identified by officials concerned according to the following allocations: Representatives,
Twelve Million Five Hundred Thousand Pesos (P12,500,000) each; Senators, Eighteen Million Pesos (P18,000,000)
each; Vice-President, Twenty Million Pesos (P20,000,000).
The Fund shall be released semi-annually by way of Special Allotment Release Order and Notice of Cash Allocation
directly to the designated implementing agency not later than thirty (30) days after the beginning of each semester upon
33Special Provision 2 of the 1994 CDF Article, Special Provision 2 of the 1995 CDF Article and Special Provision 2
of the 1996 CDF Article are similarly worded as follows:
2.Submission of [Quarterly (1994)/Semi-Annual (1995 and 1996)] Reports. The Department of Budget and
Management shall submit within thirty (30) days after the end of each [quarter (1994)/semester (1995 and 1996)] a report
to the House Committee on Appropriations and the Senate Committee on Finance on the releases made from this
Fund. The report shall include the listing of the projects, locations, implementing agencies [stated (order of
committees interchanged in 1994 and 1996)] and the endorsing officials. (Emphases supplied)
60Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the
implementing agency concerned, were directed to submit to the DBM the list of 50% of projects to be funded from
their respective CDF allocations which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House of Representatives and the
Chairman of the Committee on Appropriations, in the case of the House of Representatives; while the list for the
remaining 50% was to be submitted within six (6) months thereafter. The same article also stated that the project list,
which would be published by the DBM,35 “shall be the basis for the release of funds” and
_______________
Special Provisions
x x x x
Publication of Countrywide Development Fund Projects. Within thirty (30) days after the signing of this Act into law,
the 2. Members of Congress and the Vice-President shall, in consultation with the implementing agency
concerned, submit to the Department of Budget and Management the list of fifty percent (50%) of projects to be
funded from the allocation from the Countrywide Development Fund which shall be duly endorsed by the Senate
President and the Chairman of the Committee on Finance in the case of the Senate and the Speaker of the House of
Representatives and the Chairman of the Committee on Appropriations in the case of the House of
Representatives, and the remaining fifty percent (50%) within six (6) months thereafter.The list shall identify the
specific projects, location, implementing agencies, and target beneficiaries and shall be the basis for the release of funds.
The said list shall be published in a newspaper of general circulation by the Department of Budget and Management. No
funds appropriated herein shall be disbursed for projects not included in the list herein required. (Emphases
supplied)
35See Special Provision 2, 1997 CDF Article; id.
61that “[n]o 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 administration’s political agenda. 37It 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 Alle-
_______________
Special Provisions
x x x x
2.Publication of Countrywide Development Fund Projects. x x x PROVIDED, That said publication is not a
requirement for the release of funds. x x x x (Emphases supplied)
38Id.
62viation 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
_______________
39Rollo (G.R. No. 208566), pp. 335-336, citing Parreño, Earl, “Perils of Pork,” Philippine Center for Investigative
Journalism, June 3-4, 1998. Available at <http://pcij.org/stories/1998/pork.html>
40Id.
41Id.
42RA 8745 entitled “AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE REPUBLIC
OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY ONE, NINETEEN HUNDRED NINETY NINE, AND FOR
OTHER PURPOSES.”
43Special Provision 1, Article XLII, Food Security Program Fund, RA 8745 provides:
Special Provision
1.Use and Release of Fund. The amount herein authorized shall be used to support the Food Security Program of
the government, which shall include farm-to-market roads, post harvest facilities and other agricultural related
infrastructures. Releases from this fund shall be made directly to the implementing agency subject to prior consultation
with the Members of Congress concerned. (Emphases supplied)
44Special Provision 1, Article XLIX, Lingap Para sa MahihirapProgram Fund, RA 8745 provides:
Special Provision
1.Use and Release of Fund. The amount herein appropriated for the Lingap Para sa Mahihirap Program Fund
shall be used exclusively to satisfy the minimum basic needs of poor communities and disadvantaged sectors:
PROVIDED, That such
63Program Fund,”45 all of which contained a special provisionrequiring “prior consultation” with the Members
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
_______________
amount shall be released directly to the implementing agency upon prior consultation with the Members of
Congress concerned. (Emphases supplied)
45Special Provision 1, Article L, Rural/Urban Development Infrastructure Program Fund, RA 8745 provides:
Special Provision
1.Use and Release of Fund. The amount herein authorized shall be used to fund infrastructure requirements of the
rural/urban areas which shall be released directly to the implementing agency upon prior consultation with the
respective Members of Congress. (Emphases supplied)
46Special Provision 1, Article XLIX, RA 8760 (2000 PDAF Article) provides:
Special Provision
1.Use and release of the Fund. The amount herein appropriated shall be used to fund priority programs and
projects as indicated under Purpose 1: PROVIDED, That such amount shall be released directly to the implementing
agency concerned upon prior consultation with the respective Representative of the District: PROVIDED, FURTHER,
That the herein allocation may be realigned as necessary to any expense category: PROVIDED, FINALLY, That no
amount shall be used to fund personal services and other personal benefits. (Emphases supplied)
47See Special Provision 1, 2000 PDAF Article; id.
64succeeding PDAF provisions remained the same in view of the re-enactment 48 of the 2000 GAA for the year 2001.
F.Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision ordering
the release of the funds directly to the implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision
_______________
48Section 25 (7), Article VI, of the 1987 Philippine Constitution (1987 Constitution) provides that “[i]f, by the end of
any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general
appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.” (Emphasis supplied)
49Special Provision 1, Article L, RA 9162 (2002 PDAF Article) provides:
1.Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and
projects or to fund counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be
released directly to the implementing agency or Local Government Unit concerned. (Emphases supplied)
50Special Provision 1, Article XLVII, RA 9206, 2003 GAA (2003 PDAF Article) provides:
Special Provision
Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or
to fund the required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be
released directly to the implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the
allocations authorized herein may be realigned to any expense class, if deemed necessary: PROVIDED,
FURTHERMORE, That a maximum of ten percent (10%) of the authorized allocations by district may be used for the
procurement of rice and other basic commodities which shall be purchased from the National Food Authority. 1.
65was 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 Highways 51 (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
_______________
51Special Provision 1, Article XVIII, RA 9206 provides:
Special Provision No. 1—Restriction on the Delegation of Project Implementation
The implementation of the projects funded herein shall not be delegated to other agencies, except those projects to be
implemented by the Engineering Brigades of the AFP and inter-department projects undertaken by other offices and
agencies including local government units with demonstrated capability to actually implement the projects by
themselves upon consultation with the Members of Congress concerned. In all cases the DPWH shall exercise
technical supervision over projects. (Emphasis supplied)
52Special Provision 3, Article XLII, RA 9206 provides:
Special Provision No. 3—Submission of the List of School Buildings
Within 30 days after the signing of this Act into law, (DepEd) after consultation with the representative of the
legislative district concerned, shall submit to DBM the list of 50% of school buildings to be constructed every
municipality x x x. The list as submitted shall be the basis for the release of funds. (Emphasis supplied)
53Rollo (G.R. No. 208566), p. 557.
54Special Provision 1, Article L, RA 9336 (2005 PDAF Article) provides:
Special Provision(s)
Use and Release of the Fund. The amount appropriated herein 1. 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 as indicated hereunder, to wit:
66point agenda of the national government and shall be re-

_______________
PARTICUL PROGRAM/PRO IMPLEMENT

ARS JECT ING
AGENCY
A. Education Purchase of IT DepEd/TESDA
Equipment /
CHED/SUCs/L
GUs
Scholarship TESDA/CHED
/ SUCs/LGUs
B. Health Assistance to DOH/Specialty
Indigent Patients Hospitals
Confined at the
Hospitals Under
DOH Including
Specialty Hospitals
Assistance to LGUs
Indigent Patients at
the Hospitals
Devolved to LGUs
and RHUs
Insurance Premium Philhealth
C. Small & Medium DTI/TLRC/DA
Livelihood/ Enterprise/Liveliho / CDA
CIDSS od
Comprehensive DSWD
Integrated Delivery
of Social Services
D. Rural Barangay/Rural DOE/NEA
Electrificatio Electrification
PARTICUL PROGRAM/PRO IMPLEMENT
ARS JECT ING
AGENCY
n
E. Water Construction of DPWH
Supply Water System
Installation of LGUs
Pipes/Pumps/Tanks
F. Financial Specific Programs LGUs
Assistance and Projects to
Address the Pro-
Poor Programs of
Government
G. Public Construction/Repai DPWH
Works r/ Rehabilitation of
the following:
Roads and
Bridges/Flood
Control/School
buildings Hospitals
Health
Facilities/Public
Markets/Multi-
Purpose
Buildings/Multi-
Purpose Pavements
67leased 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 2007,572008,58 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.

_______________
H. Construction/Repair/ DA-

Irrigation Rehabilitation of Irrigation NIA
Facilities

(Emphasis supplied)
55 Id.
56Rollo (G.R. No. 208566), p. 558.
57See Special Provision 1, Article XLVII, RA 9401.
58See Special Provision 1, Article XLVI, RA 9498.
59See Special Provision 1, Article XLIX, RA 9524.
60See Special Provision 1, Article XLVII, RA 9970.
61For instance, Special Provisions 2 and 3, Article XLIII, RA 9336 providing for the 2005 DepEd School Building
Program, and Special Provisions 1 and 16, Article XVIII, RA 9401 providing for the 2007 DPWH Regular Budget
respectively state:
2005 DepEd School Building Program
Special Provision No. 2 – Allocation of School Buildings: The amount allotted under Purpose 1 shall be apportioned
as follows: (1) fifty percent (50%) to be allocated pro-rata according to each legislative dis-
68Significantly, it was during this era that provisions which allowed formal participation of non-governmental
organizations (NGO) in the implementation of government projects were introduced. In the Supplemental
Budget for 2006, with respect to the appropriation for school buildings, NGOs were, by law, encouraged to
participate. For such purpose, the law stated that “the amount of at least P250 Million of the P500 Million allotted
for the construction and completion of school buildings shall be made available to NGOs including the Federation
of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its “Operation Barrio
_______________
tricts student population x x x; (2) forty percent (40%) to be allocated only among those legislative districts with
classroom shortages x x x; (3) ten percent (10%) to be allocated in accordance x x x.
Special Provision No. 3 — Submission of the List of School Buildings: Within 30 days after the signing of this Act
into law, the DepEd after consultation with the representative of the legislative districts concerned, shall submit to
DBM the list of fifty percent (50%) of school buildings to be constructed in every municipality x x x. The list as
submitted shall be the basis for the release of funds x x x. (Emphases supplied)
2007 DPWH Regular Budget
Special Provision No. 1 — Restriction on Delegation of Project Implementation: The implementation of the project
funded herein shall not be delegated to other agencies, except those projects to be implemented by the AFP Corps of
Engineers, and inter-department projects to be undertaken by other offices and agencies, including local government units
(LGUs) with demonstrated capability to actually implement the project by themselves upon consultation with the
representative of the legislative district concerned x x x.
Special Provision No. 16 — Realignment of Funds: The Secretary of Public Works and Highways is authorized to
realign funds released from appropriations x x x from one project/scope of work to another: PROVIDED, that x x x
(iii) the request is with the concurrence of the legislator concerned x x x. (Emphasis supplied)
69School” 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 regulations 65 of
RA 9184,66 the Government Procurement Reform
_______________
62 Rollo (G.R. No. 208566), p. 559, citing Section 2.A of RA 9358, otherwise known as the “Supplemental Budget for
2006.”
63Id., at pp. 559-560.
64“As a primary aspect of the Philippine Government’s public procurement reform agenda, the Government
Procurement Policy Board (GPPB) was established by virtue of Republic Act No. 9184 (R.A. 9184) as an independent
inter-agency body that is impartial, transparent and effective, with private sector representation. As established in Section
63 of R.A. 9184, the GPPB shall have the following duties and responsibilities: 1. To protect national interest in all
matters affecting public procurement, having due regard to the country’s regional and international obligations; 2. To
formulate and amend public procurement policies, rules and regulations, and amend, whenever necessary, the
implementing rules and regulations Part A (IRR-A); 3. To prepare a generic procurement manual and standard bidding
forms for procurement; 4. To ensure the proper implementation by the procuring entities of the Act, its IRR-A and all
other relevant rules and regulations pertaining to public procurement; 5. To establish a sustainable training program to
develop the capacity of Government procurement officers and employees, and to ensure the conduct of regular
procurement training programs by the procuring entities; and 6. To conduct an annual review of the effectiveness of the
Act and recommend any amendments thereto, as may be necessary.
x x x x” <http://www.gppb.gov.ph/about_us/gppb.html> (visited October 23, 2013).
65Entitled “AMENDMENT OF SECTION 53 OF THE IMPLEMENTING RULES AND REGULATIONS PART A OF REPUBLIC ACT
9184 AND PRESCRIBING GUIDELINES ON PARTICIPATION OF NON-GOVERNMENTAL ORGANIZATIONS IN PUBLIC
PROCUREMENT,” approved June 29, 2007.
66Entitled “AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE
PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES.”
70Act, to include, as a form of negotiated procurement, 67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of agreement with an NGO, provided that “an
appropriation law or ordinance earmarks an amount to be specifically contracted out to NGOs.” 69
G.Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 70 PDAF Article included an
express
_______________
67 48. Sec.Alternative Methods.—Subject to the prior approval of the Head of the Procuring Entity or his duly
authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Entity may, in
order to promote economy and efficiency, resort to any of the following alternative methods of Procurement:
x x x x
(e)Negotiated Procurement—a method of Procurement that may be resorted under the extraordinary
circumstances provided for in Section 53 of this Act and other instances that shall be specified in the IRR, whereby
the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier,
contractor or consultant.
x x x x
68As defined in Section 5(o) of RA 9184, the term “Procuring Entity” refers to any branch, department, office,
agency, or instrumentality of the government, including state universities and colleges, government-owned and/or
-controlled corporations, government financial institutions, and local government units procuring Goods, Consulting
Services and Infrastructure Projects.
69Rollo (G.R. No. 208566), p. 564, citing GPPB Resolution 12-2007.
70Special Provision 2, Article XLIV, RA 10147 (2011 PDAF Article) provides:
71statement on lump-sum amounts allocated for individual legislators and the Vice-President: Representatives were
given P70 Million each, broken down into P40 Million for “hard projects” and P30 Million for “soft projects”; while
P200 Million was given to each Senator as well as the Vice-President, with a P100 Million allocation each for
“hard” and “soft projects.” Likewise, a provision on realignment of funds was included, but with the qualification
that it may be allowed only once. The same provision also allowed the Secretaries of Education, Health, Social
Welfare and Development, Interior and Local Government, Environment and Natural Resources, Energy, and Public
Works and Highways to realign PDAF Funds, with the further conditions that: (a) realignment is within the same
implementing unit and same project category as the original project, for infrastructure projects; ( b) allotment
released has not yet been obligated for the original scope of work, and (c) the request for realignment is with the
concurrence of the legislator concerned.71
_______________
Allocation of Funds. The total projects to be identified by legislators and the Vice-President shall not exceed the
following amounts: 2.
Total of Seventy Million Pesos (P70,000,000) broken down into Forty Million Pesos (P40,000,000) for Infrastructure
Projects and Thirty Million Pesos (P30,000,000) for soft projects of Congressional Districts or Party List
Representatives; a.
Total of Two Hundred Million Pesos (P200,000,000) broken down into One Hundred Million Pesos (P100,000,000)
for Infrastructure Projects and One Hundred Million Pesos (P100,000,000) for soft projects of Senators and the Vice
President. b.
71See Special Provision 4, 2011 PDAF Article.
72In the 201272 and 201373 PDAF Articles, it is stated that the “[i]dentification 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
_______________
72Special Provision 2, Article XLIV, RA 10155 (2012 PDAF Article) provides:
Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list,
standard or design prepared by each implementing agency. Furthermore, preference shall be given to projects located in
the 4th to 6th class municipalities or indigents identified under the National Household Targeting System for Poverty
Reduction by the DSWD. 2. For this purpose, the implementing agency shall submit to Congress said priority list,
standard or design within ninety (90) days from effectivity of this Act. (Emphasis supplied)
73RA 10352, passed and approved by Congress on December 19, 2012 and signed into law by the President on
December 19, 2012. Special Provision 2, Article XLIV, RA 10352 (2013 PDAF Article) provides:
Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list,
standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located
in the 4th to 6th class municipalities or indigents identified under the NHTS-PR by the DSWD. 2. For this purpose, the
implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from
effectivity of this Act. (Emphasis supplied)
74The permissive treatment of the priority list requirement in practice was revealed during the Oral Arguments (TSN,
October 10, 2013, p. 143):
Justice Leonen: x x x In Section 2 [meaning, Special Provision 2], it mentions priority list of implementing agencies.
Have the implementing agencies indeed presented priority list to the Members of Congress before disbursement?
73Provisions on legislator allocations75 as well as fund realignment 76 were included in the 2012 and 2013 PDAF
Arti-
_______________
Solicitor General Jardeleza: My understanding is, is not really, Your Honor.
Justice Leonen: So, in other words, the PDAF was expended without the priority list requirements of the implementing
agencies?
Solicitor General Jardeleza: That is so much in the CoA Report, Your Honor.
75See Special Provision 3 of the 2012 PDAF Article and Special Provision 3 of the 2013 PDAF Article.
76Special Provision 6 of the 2012 PDAF Article provides:
Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture,
Education, Energy, Environment and Natural Resources, Health, Interior and Local Government, Public Works and
Highways, and Social Welfare and Development are also authorized to approve realignment from one project/scope to
another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is
within the same implementing unit and same project category as the original project; (ii) allotment released has not yet
been obligated for the original project/scope of work; and (iii) 6. request is with the concurrence of the legislator
concerned. The DBM must be informed in writing of any realignment approved within five (5) calendar days from its
approval.
Special Provision 4 of the 2013 PDAF Article provides:
Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture,
Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare
and Development and Trade and Industry are also authorized to approve realignment from one project/scope to another
within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within
the same implementing unit and same project category as the original project; (ii) allotment released has not yet been
obligated for the original project/scope of work; and (iii) 4. request is with the concurrence of the legislator
concerned. The DBM must be informed in writing of any realignment approved within five (5) calendar days from
approval thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification of soft
or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments,
modifications and revisions of projects to be implemented by LGUs, the LGU concerned shall cer-
74cles; but the allocation for the Vice-President, which was pegged at P200 Million in the 2011 GAA, had been
deleted. In addition, the 2013 PDAF Article now allowed LGUs to be identified as implementing agencies if they
have the technical capability to implement the projects. 77Legislators 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.78Finally, any realignment of PDAF funds, modification and revision of
_______________
tify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.
Any realignment, modification and revision of the project identification shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance, for favorable endorsement to the DBM or the
implementing agency, as the case may be. (Emphases supplied)
The amount appropriated herein shall be used to fund the following priority programs and projects to be implemented
by the corresponding agencies: Use of Fund. 1.
x x x x
PROVIDED, That this Fund shall not be used for the payment of Personal Services expenditures: PROVIDED,
FURTHER, That all procurement shall comply with the provisions of R.A. No. 9184 and its Revised Implementing Rules
and Regulations: PROVIDED, FINALLY, That for infrastructure projects, LGUs may only be identified as
implementing agencies if they have the technical capability to implement the same. (Emphasis supplied)
x x x. Project Identification. 2.
x x x x
All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House
of Representatives outside of his/her legislative district shall have the written concurrence of the member of the House of
Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of
Representatives.
75project identification, as well as requests for release of funds, were all required to be favorably endorsed by
the House Committee on Appropriations and the Senate Committee on Finance, as the case may be.79
III.History of Presidential Pork Barrel in the Philippines.
While the term “Pork Barrel” has been typically associated with lump-sum, discretionary funds of Members of
Congress, the present cases and the recent controversies on the matter have, however, shown that the term’s usage
has expanded to include certain funds of the President such as the Malampaya Funds and the Presidential Social
Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 8 80 of Presidential Decree
No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
_______________
79See Special Provision 4 of the 2013 PDAF Article; supra note 76.
80 8. Sec.Appropriations.—The sum of Five Million Pesos out of any available funds from the National Treasury is
hereby appropriated and authorized to be released for the organization of the Board and its initial operations. Henceforth,
funds sufficient to fully carry out the functions and objectives of the Board shall be appropriated every fiscal year in the
General Appropriations Act.
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. (Emphasis supplied)
81Entitled “CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND FUNCTIONS, PROVIDING
FUNDS, THEREFOR, AND FOR OTHER PURPOSES.”
76on 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. 82Due to the energy-related activities of the government in
the Malampaya natural gas field in Palawan, or the “Malampaya Deep Water Gas-to-Power Project”, 83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD 1869,85 or the
Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by
Marcos on July 11,
_______________
82See First Whereas Clause of PD 910.
83See <http://malampaya.com/> (visited October 17, 2013).
84 12. Sec.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 shall
be immediately set aside and allocated to fund the following infrastructure and socio-civil projects within the
Metropolitan Manila Area:
Flood Control (a)
Sewerage and Sewage (b)
Nutritional Control (c)
Population Control (d)
Tulungan ng Bayan Centers (e)
Beautification (f)
Kilusang Kabuhayan at Kaunlaran (KKK) projects; provided, that should the aggregate gross earning be less
than P150,000,000.00, the amount to be allocated to fund the above-mentioned project shall be equivalent to sixty
(60%) percent of the aggregate gross earning. (g)
In addition to the priority infrastructure and socio-civic projects with the Metropolitan Manila specifically
enumerated above, the share of the Government in the aggregate gross earnings derived by the Corporate from this
Franchise may also be appropriated and allocated to fund and finance infrastructure and/or socio-civic projects
throughout the Philippines as may be directed and authorized by the Office of the President of the Philippines.
85Entitled “CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C, 1399 AND 1632,
RELATIVE TO THE FRANCHISE AND POWERS OF THE PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR).”
771983. 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
_______________
86Entitled “AMENDING SECTION TWELVE OF PRESIDENTIAL DECREE NO. 1869 – CONSOLIDATING AND AMENDING
PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C, 1399 AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF
THE PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR).” While the parties have confined their discussion
to Section 12 of PD 1869, the Court takes judicial notice of its amendment and perforce deems it apt to resolve the
constitutionality of the amendatory provision.
87Section 12 of PD 1869, as amended by PD 1993, now reads:
12. Sec.Special Condition of Franchise.—After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the government in the aggregate gross earnings of the Corporation from this Franchise,
or 60% if the aggregate gross earnings be less than P150,000,000.00 shall immediately 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.
88Rollo (G.R. No. 208566), p. 301.
89CDF/PDAF ALLOCATION FROM 1990-2013.
1990…………… P2,300,000,000.00
1991…………… P 2,300,000,000.00
1992…………… P 2,480,000,000.00
1993…………… P 2,952,000,000.00
78Presidents who reportedly used the “Pork Barrel” in order to gain congressional support. 90 It was in 1996 when the
first
_______________
1994…………… P 2,977,000,000.00
1995…………… P 3,002,000,000.00
1996…………… P 3,014,500,000.00
1997…………… P 2,583,450,000.00
1998…………… P 2,324,250,000.00
1999…………… P 1,517,800,000.00 (Food Security Program
Fund)
…………… P 2,500,000,000.00 (Lingap Para Sa Mahihirap
Program Fund)
…………… P 5,458,277,000.00 (Rural/Urban Development
Infrastructure Program Fund)
2000…………… P 3,330,000,000.00
2001…………… 2000 GAA re-enacted
2002…………… P 5,677,500,000.00
2003…………… P 8,327,000,000.00
2005…………… P 6,100,000,000.00
2007…………… P 11,445,645,000.00
2008…………… P 7,892,500,000.00
2009…………… P 9,665,027,000.00
2010…………… P 10,861,211,000.00
2011…………… P 24,620,000,000.00
2012…………… P 24,890,000,000.00
2013…………… P 24,790,000,000.00
90“Pork as a tool for political patronage, however, can extend as far as the executive branch. It is no accident, for
instance, that the release of the allocations often coincides with the passage of a Palace-sponsored bill.
That pork funds have grown by leaps and bounds in the last decade can be traced to presidents in need of Congress
support. The rise in pork was particularly notable during the Ramos administration, when the president and House Speaker
Jose de Venecia, Jr. used generous fund releases to convince congressmen to support Malacañang-initiated legislation. The
Ramos era, in fact, became known as the ‘golden age of pork.’
Through the years, though, congressmen have also taken care to look after their very own. More often than not, pork-
barrel funds are funneled to projects in towns and cities where the lawmakers’ own relatives have been elected to public
office; thus, pork is a tool for building family power as well. COA has come across many instances where pork-funded
projects ended up directly benefiting no less than the lawmaker
79controversy 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, asphalting, concreting, and construction of school
buildings.”92 “Other sources of kickbacks that Candazo identified were public funds intended for medicines and
textbooks. A few days later, the tale of the money trail became the banner story of the [Philippine Daily] Inquirer
issue of [August] 13, 1996, accompanied by an illustration of a roasted pig.” 93 “The publication of the stories,
including those about congressional initiative allocations of certain lawmakers, including P3.6 [B]illion for a
[C]ongressman, 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
_______________
or his or her relatives.” (Chua, Yvonne T. and Cruz, Booma, “Pork is a Political, Not A Developmental, Tool.”
<http://pcij.org/stories/2004/pork.
html> [visited October 22, 2013].)
91With reports from Inquirer Research and Salaverria, Leila, “Candazo, first whistle-blower on pork barrel scam, dies;
61,” Philippine Daily Inquirer, August 20, 2013, <http://newsinfo.inquirer.net/469439/candazo-first-whistle-blower-on-
pork-barrel-scam-dies-61> (visited October 21, 2013.)
92Id.
93Id.
94Id.
80form of kickbacks has become a common exercise of unscrupulous Members of Congress,” the petition was
dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into
allegations that “the government has been defrauded of some P10 Billion over the past 10 years by a syndicate using
funds from the pork barrel of lawmakers and various government agencies for scores of ghost projects.” 96 The
investigation was spawned by sworn affidavits of six (6) 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
_______________
95Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April
24, 2012, 670 SCRA 373, 387.
96Carvajal, Nancy, “NBI probes P10-B scam,” Philippine Daily Inquirer, July 12, 2013
<http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam> (visited October 21, 2013).
97Id.
98See NBI Executive Summary. <http://www.gov.ph/2013/09/16/executive-summary-by-the-nbi-on-the-pdaf-
complaints-filed-against-janet-lim-napoles-et-al/> (visited October 22, 2013).
81On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99covering the use of legislators’ PDAF from 2007 to 2009, or during the last three (3) years of the
Arroyo administration. The purpose of the audit was to determine the propriety of releases of funds under PDAF and
the Various Infrastructures including Local Projects (VILP) 100by 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 P8.374 Billion in PDAF and P32.664
Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP releases that were found to
have been made nationwide during the audit period. 102 Accordingly, the CoA’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
_______________
99Pursuant to Office Order No. 2010-309 dated May 13, 2010.
100During the Oral Arguments, the CoA Chairperson referred to the VILP as “the source of the so called HARD
project, hard portion x x x “under the title the Budget of the DPWH.” TSN, October 8, 2013, p. 69.
101These implementing agencies included the Department of Agriculture, DPWH and the Department of Social
Welfare and Development (DSWD). The GOCCs included Technology and Livelihood Resource Center
(TLRC)/Technology Resource Center (TRC), National Livelihood Development Corporation (NLDC), National
Agribusiness Corporation (NABCOR), and the Zamboanga del Norte Agricultural College (ZNAC) Rubber Estate
Corporation (ZREC). CoA Chairperson’s Memorandum. Rollo (G.R. No. 208566), p. 546. See also CoA Report, p. 14.
102Id.
103Id., at pp. 546-547.
82
Amounts released for projects identified by a considerable number of legislators significantly exceeded their respective
allocations. 
Amounts were released for projects outside of legislative districts of sponsoring members of the Lower House. 
Total VILP releases for the period exceed ed 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 [P]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 “[a]t least P900 Million from royalties in the
operation of the Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has gone
into a
83dummy [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 Prohibi-
_______________
104Carvajal, Nancy, “Malampaya fund lost P900M in JLN racket”, Philippine Daily Inquirer, July 16, 2013
<http://newsinfo. inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket> (visited October 21, 2013.)
105TSN, October 8, 2013, p. 119.
106Rollo (G.R. No. 208493), pp. 9 and 341.
84tion 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 enti-
_______________
107The Court observes that petitioners have not presented sufficient averments on the “remittances from the
Philippine Charity Sweepstakes Office” nor have defined the scope of “the Executive’s Lump Sum Discretionary Funds”
(See Rollo [G.R. No. 208566], pp. 47-49) which appears to be too broad and all-encompassing. Also, while Villegas filed
a Supplemental Petition dated October 1, 2013 (Supplemental Petition, see Rollo [G.R. No. 208566], pp. 213-220, and pp.
462-464) particularly presenting their arguments on the Disbursement Acceleration Program, the same is the main subject
of G.R. Nos. 209135, 209136, 209155, 209164, 209260, 209287, 209442, 209517, and 209569 and thus, must be properly
resolved therein. Hence, for these reasons, insofar as the Presidential Pork Barrel is concerned, the Court is
constrained not to delve on any issue related to the above-mentioned funds and consequently confine its discussion
only with respect to the issues pertaining to the Malampaya Funds and the Presidential Social Fund.
85ties 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 Fund[s] [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 Fund[s] [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
_______________
108Rollo (G.R. No. 208566), pp. 48-49.
109Id., at p. 48.
110To note, Villegas’ Supplemental Petition was filed on October 2, 2013.
111Rollo (G.R. No. 208566), p. 342; and Rollo (G.R. No. 209251), pp. 6-7.
112Re-docketed as G.R. No. 209251 upon Nepomuceno’s payment of docket fees on October 16, 2013 as reflected on
the Official Receipt No. 0079340. Rollo (G.R. No. 209251) p. 409.
86On 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 “financ[ing] energy resource development and exploitation
programs and projects of the government” under the same provision; and (d) setting the consolidated cases for Oral
Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment (Comment) of
even date before the Court, seeking the lifting, or in the alternative, the partial lifting with respect to educational and
medical assistance purposes, of the Court’s September 10, 2013 TRO, and that the consolidated petitions be
dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the
Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on September
30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013,
Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a
Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties for
the Oral Arguments scheduled on October 8, 2013. In view of the tech-
_______________
113Rollo (G.R. No. 208566) p. 97.
87nicality 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
_______________
114G.R. Nos. 113105, 113174, 113766 & 113888, August 19, 1994, 235 SCRA 506.
88Budget and Management”115 (LAMP) bar the re-litigation 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.
_______________
115Supra note 95.
116Entitled “CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND FUNCTIONS, PROVIDING
FUNDS, THEREFOR, AND FOR OTHER PURPOSES.”
89
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 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.118Of 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. 120This is
embodied in
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117Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA 568, 575.
118Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 148.
119Joya v. Presidential Commission on Good Government, supra note 117, at p. 575.
120Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554, 178581,
178890, 179157, and 179461, October 5, 2010, 632 SCRA 146, 175.
90Section 1, Article VIII of the 1987 Constitution which pertinently states that “[j]udicial 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, “[t]here 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
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121Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain
(GRP), G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14, 2008, 568 SCRA 402, 450.
122Id., at pp. 450-451.
123Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, 169917, 173630, and 183599, October 19, 2010, 633
SCRA 470, 493, citing Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP), G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14, 2008, 568 SCRA 402,
405.
124Id., at p. 492, citing Muskrat v. U.S., 219 U.S. 346 (1913).
91Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on
the constitutionality of the “Pork Barrel System.” Also, the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the provisions allowing for their utilization — such as the 2013 GAA
for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social
Fund — are currently existing and operational; hence, there exists an immediate or threatened injury to petitioners as
a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and
academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual
controversy between the parties or no useful purpose can be served in passing upon the merits. 125 Differing from this
description, the Court observes that respondents’ proposed line-item budgeting scheme would not terminate the
controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget,
and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and existing.
Neither will the President’s declaration that he had already “abolished the PDAF” render the issues on PDAF moot
precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal
existence. By constitutional design, the annulment or nullification of a law may be done either by Congress, through
the passage of a repealing law, or by the Court, through a declaration of unconstitutionality. Instructive on this point
is the following exchange between Associate Justice Antonio T. Carpio (Jus-
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125Baldo, Jr. v. Commision on Elections, G.R. No. 176135, June 16, 2009, 589 SCRA 306, 310.
92tice Carpio) and the Solicitor General during the Oral Arguments:126
Justice Carpio: [T]he President has taken an oath to faithfully execute the law, correct? 127
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 Code126 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?
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126TSN, October 10, 2013, pp. 79-81.
127Section 17, Article VII of the 1987 Constitution reads:
The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. 17. Sec.
128 38. Sec.Suspension of Expenditure of Appropriations.—Except as otherwise provided in the General Appropriations
Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized
in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.
93
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 ….
x x x x
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.
x x x x
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?
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
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129Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514, citing Constantino v.
Sandiganbayan (First Divi-
94The 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”130demonstrates 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:
[T]he 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
_______________
sion), G.R. Nos. 140656 and 154482, September 13, 2007, 533 SCRA 205, 219-220.
130Rollo (G.R. No. 208566), p. 292.
131G.R. No. 198457, August 13, 2013, 703 SCRA 501.
95exercise 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.
[I]t 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. 132Accordingly, there is a compelling need to formulate
controlling principles relative to the issues raised herein in order to guide the bench, the bar, and the public, not just
for the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the
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132TSN, October 10, 2013, p. 134.
96government 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 “[t]o 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
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133Section 22, Article VII of the 1987 Constitution provides:
The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of
the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and
proposed revenue measures. 22. Sec.
134Rollo (G.R. No. 208566), p. 294.
135Id., at p. 5.
136G.R. No. 159085, February 3, 2004, 421 SCRA 656.
137Id., at p. 665.
97branches of government.”138 Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, “a textually
demonstrable constitutional commitment of the issue to a coordinate political department,” “a lack of judicially
discoverable and manageable standards for resolving it” or “the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion.” Cast against this light, respondents submit that the “[t]he
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 render-
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138See Francisco, Jr. v. Toll Regulatory Board, supra note 123, at p. 492.
139369 US 186 82, S. Ct. 691, L. Ed. 2d. 663 [1962].
140Rollo (G.R. No. 208566), pp. 295-296.
141Tañada v. Cuenco, 100 Phil. 1101 (1957) unreported case.
98ing 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)
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142406 Phil. 1; 353 SCRA 452 (2001).
143Id., at pp. 42-43; p. 491.
99It 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
_______________
144Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
145La Bugal-B’laan Tribal Association, Inc. v. Sec. Ramos, 465 Phil. 860, 890; 421 SCRA 148, 178 (2004).
146Rollo (G.R. No. 208566), p. 349.
100standing 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
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147Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding Judge, RTC of Quezon
City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470.
148Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008, 570 SCRA 410,
421.
149TSN, October 8, 2013, pp. 184-185.
150People v. Vera, 65 Phil. 56, 89 (1937).
101been settled”) are general procedural law principles which both deal with the effects of previous but factually
similar dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these principles
in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between the first and
second actions, there exists an identity of parties, of subject matter, and of causes of action.151 This required
identity is not, however, attendant hereto since Philconsa and LAMP, respectively involved constitutional challenges
against the 1994 CDF Article and 2004 PDAFArticle, 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 fundsto 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 upheld, 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 LAMPcases are concerned,
cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under
Arti-
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151See Lanuza v. CA, G.R. No. 131394, March 28, 2005, 454 SCRA 54, 61-62.
102cle 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 [M]embers 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.”152 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 identifica-
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152 Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines. 8. ART.
153Chinese Young Men’s Christian Association of the Philippine Islands v. Remington Steel Corporation, G.R. No.
159422, March 28, 2008, 550 SCRA 180, 197-198.
154Philconsa v. Enriquez, supra note 114, at p. 522.
103tions made by Members of Congress are merely recommendatory. At once, it is apparent that
the Philconsaresolution 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: “Nei-
104ther would it be objectionable for Congress, by law, to appropriate funds for such specific projects as it may be
minded; to give that authority, however, to the individual members of Congress in whatever guise, I am afraid,
would be constitutionally impermissible.” As the Court now largely benefits from hindsight and current findings on
the matter, among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa insofar
as it validated the post-enactment identification authority of Members of Congress on the guise that the same
was merely recommendatory. This postulate raises serious constitutional inconsistencies which cannot be simply
excused on the ground that such mechanism is “imaginative as it is innovative.” Moreover, it must be pointed out
that the recent case of Abakada Guro Party List v. Purisima 155 (Abakada) has effectively overturned 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.
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155G.R. No. 166715, August 14, 2008, 562 SCRA 251.
105
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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156Rollo (G.R. No. 208566), p. 325.

157Id.
158Id., at p. 329.
159Id., at p. 339.
106
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.
Separation of Powers. 1.
Statement of Principle. a.
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
_______________
160Id., at p. 338.
161See note 107.
162Angara v. Electoral Commission, supra note 144, at p. 139.
163Id., at p. 157.
107government, 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,166belongs the power to interpret laws. Because the three great powers have been, by constitutional design,
ordained in this respect, “[e]ach 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
_______________
164Section 1, Article VI, 1987 Constitution.
165Section 1, Article VII, 1987 Constitution.
166Section 1, Article VIII, 1987 Constitution.
168Government of the Philippine Islands v. Springer, 277 U.S. 189, 203 (1928).
169Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired
Chief/Associate Justices of the Supreme Court, A.M. No. 11-7-10-SC, July 31, 2012, 678 SCRA 1, 9-10, citing Carl Baar,
Separate But Subservient: Court Budgeting In The American States 149-52 (1975), cited in Jeffrey Jackson, Judicial
Independence, Adequate Court Funding, and Inherent Judicial Powers, 52 Md. L. Rev. 217 (1993).
108inability 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, “[o]ne branch may interfere impermissibly with the other’s
performance of its constitutionally assigned function”;171 and “[a]lternatively, 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
_______________
170Id., at p. 10, citing Jeffrey Jackson, Judicial Independence, Adequate Court Funding, and Inherent Judicial Powers,
52 Md. L. Rev. 217 (1993).
171See Nixon v. Administrator of General Services, 433 U.S. 425, 441-446 and 451-452 (1977) and United States v.
Nixon, 418 U.S. 683 (1974), cited in Justice Powell’s concurring opinion in Immigration and Naturalization Service v.
Chadha, 462 U.S. 919 (1983).
172See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952), Springer v. Philippine Islands, 277 U.S.
189, 203 (1928) cited in Justice Powell’s concurring opinion in Immigration and Naturalization Service v. Chadha, 462
U.S. 919 (1983).
173273 Phil. 443; 196 SCRA 221 (1991).
109related 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 itself with details for implementation by the Executive.” 176
_______________
174Id., at p. 461. “3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the
various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of work and
financial plans for individual activities, the continuing review of government fiscal position, the regulation of funds
releases, the implementation of cash payment schedules, and other related activities comprise this phase of the budget
cycle.”
175Biraogo v. Philippine Truth Commission of 2010, supra note 118, at p. 158.
176Guingona, Jr. v. Carague, supra note 173, at pp. 460-461; p. 236.
110The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
“[f]rom 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
[A]ny post-enactment congressional measure x x x should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
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 (1)
investigation and monitoring of the implementation of laws pursuant to the power of Congress
to conduct inquiries in aid of legislation. (2)
_______________
177Abakada Guro Party List v. Purisima, supra note 155, at pp. 294-296.
178Id., at p. 287.
111
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)
b.Application.
In these cases, petitioners submit that the Congressional Pork Barrel — among others, the 2013 PDAF Article
— “wrecks the assignment of responsibilities between the political branches” as it is designed to allow individual
legislators to interfere “way past the time it should have ceased” or, particularly, “after the GAA is passed.” 179 They
state that the findings and recommendations in the CoA Report provide “an illustration of how absolute and
definitive the power of legislators wield over project implementation in complete violation of the constitutional
[principle of separation of powers.]”180 Further, they point out that the Court in the Philconsa case only allowed the
CDF to exist on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.181
For their part, respondents counter that the separations of powers principle has not been violated since the
President maintains “ultimate authority to control the execution of the GAA” and that he “retains the final discretion
to reject” the legislators’ proposals.182 They maintain that the Court, in Philconsa, “upheld the constitutionality of the
power of members of Congress to propose and identify projects so long as such proposal and identification are
recommendatory.”183 As such, they claim that “[e]verything in the Special Provisions [of the 2013 PDAF Article]
follows the Philconsa framework, and hence, remains constitutional.”184
_______________
179Rollo (G.R. No. 208566), p. 179.
180Id., at p. 29.
181Id., at p. 24.
182Id., at p. 86.
183Id., at p. 308.
184Id.
112The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would
be the authority of legislators to participate in the post-enactment phases of project implementation.
At its core, legislators — may it be through project lists, 185 prior consultations186 or program menus187 — have been
consistently accorded post-enactment authority to identify the projects they desire to be funded through various
Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to
identify projects post-GAA may be construed from the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature which, as
evinced from past PDAF Articles, allows individual legislators to identify PDAF projects for as long as the
identified project falls under a general program listed in the said menu. Relatedly, Special Provision 2 provides that
the implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed
priority list, standard or design prepared and submitted by implementing agencies from which the legislator may
make his choice. The same provision further authorizes legislators to identify PDAF projects outside his district for
as long as the representative of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies
that PDAF projects
_______________
185See CDF Articles for the years 1991, 1992, 1993, 1994, 1995, 1996, 1997, and 1998.
186See PDAF Article for the year 2000 which was re-enacted in 2001. See also the following 1999 CIAs: “Food
Security Program Fund,” the “Lingap Para Sa Mahihirap Program Fund,” and the “Rural/Urban Development
Infrastructure Program Fund.” See further the 1997 DepEd School Building Fund.
187See PDAF Article for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2013.
113refer to “projects to be identified by legislators” 188 and thereunder provides the allocation limit for the total
amount of projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification “shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the implementing
agency, as the case may be.” From the foregoing special provisions, it cannot be seriously doubted that legislators
have been accorded post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-enactment authority in the
areas of fund release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to
participate in the area of fund release through congressional committees is contained in Special Provision 5 which
explicitly states that “[a]ll request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate Committee on
Finance, as the case may be”; while their statutory authority to participate in the area of fund realignment is
contained in: first, paragraph 2, Special Provision 4189 which explicitly states, among others, that
_______________
188Also, in Section 2.1 of DBM Circular No. 547 dated January 18, 2013 (DBM Circular 547-13), or the “Guidelines
on the Release of Funds Chargeable Against the Priority Development Assistance Fund for FY 2013,” it is explicitly stated
that the “PDAF shall be used to fund priority programs and projects identified by the Legislators from the Project
Menu.” (Emphasis supplied)
189To note, Special Provision 4 cannot — as respondents submit — refer to realignment of projects since the same
provision subjects the realignment to the condition that the “allotment released has not yet been obligated for the
original project/scope of work”. The foregoing proviso should be read as a textual reference to the savings requirement
stated under Section 25(5), Article VI of the 1987 Constitution which pertinently provides that “x x x the President, the
114“[a]ny realignment [of funds] shall be submitted to the House Committee on Appropriations and the Senate
Committee on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be”;
and, second, paragraph 1, also of Special Provision 4 which authorizes the “Secretaries of Agriculture, Education,
Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and
Development and Trade and Industry190 x x x to approve realignment from one project/
_______________
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the
heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law
for their respective offices from savings in other items of their respective appropriations. In addition, Sections 4.2.3, 4.2.4
and 4.3.3 of DBM Circular 547-13, the implementing rules of the 2013 PDAF Article, respectively require that: (a)
“the allotment is still valid or has not yet lapsed”; (b) “[r]equests for realignment of unobligated allotment as of
December 31, 2012 treated as continuing appropriations in FY 2013 shall be submitted to the DBM not later than June 30,
2013”; and (c) requests for realignment shall be supported with, among others, a “[c]ertification of availability of funds.”
As the letter of the law and the guidelines related thereto evoke the legal concept of savings, Special Provision 4 must be
construed to be a provision on realignment of PDAF funds, which would necessarily but only incidentally include the
projects for which the funds have been allotted to. To construe it otherwise would effectively allow PDAF funds to be
realigned outside the ambit of the foregoing provision, thereby sanctioning a constitutional aberration.
190Aside from the sharing of the executive’s realignment authority with legislators in violation of the separation of
powers principle, it must be pointed out that Special Provision 4, insofar as it confers fund realignment authority to
department secretaries, is already unconstitutional by itself. As recently held in Nazareth v. Villar (Nazareth), G.R. No.
188635, January 29, 2013, 689 SCRA 385, 403-404, Section 25(5), Article VI of the 1987 Constitution, limiting the
authority to augment, is “strictly but reasonably construed as exclusive” in favor of the high officials named
115scope to another within the allotment received from this Fund, subject to [among others] (iii) the request is with
the concurrence of the legislator concerned.”
_______________
therein. As such, the authority to realign funds allocated to the implementing agencies is exclusively vested in the
President, viz.:
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the
Constitution limiting the authority to transfer savings only to augment another item in the GAA is strictly
but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are
strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all
doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is
established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts
may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is
always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with
reason and justice.
AThe appropriate and natural office of the exception is to exempt something from the scope of the general words of
a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of
an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted . Exceptions
are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and
against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that
the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction.
(Emphases and underscoring supplied)
The cogence of the Nazareth dictum is not enfeebled by an invocation of the doctrine of qualified political agency
(otherwise
116AClearly, these post-enactment measures which govern the areas of project identification, fund release and
fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene
and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing,
legislators have been, in one form or another, authorized to participate in — as Guingona, Jr. puts it —
“the various operational aspects of budgeting,” including “the evaluation of work and financial plans for
individual activities”and the “regulation and release of funds” in violation of the separation of powers principle.
The fundamental rule, as categorically ar-
_______________
known as the “alter ego doctrine”) for the bare reason that the same is not applicable when the Constitution itself
requires the President himself to act on a particular matter, such as that instructed under Section 25(5), Article VI of
the Constitution. As held in the landmark case of Villena v. Secretary of Interior (67 Phil. 451 [1951]), constitutional
imprimatur is precisely one of the exceptions to the application of the alter ego doctrine, viz.:
After serious reflection, we have decided to sustain the contention of the government in this case on the board
proposition, albeit not suggested, that under the presidential type of government which we have adopted and
considering the departmental organization established and continued in force by paragraph 1, section 12, Article
VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department,
the heads of the various executive departments are assistants and agents of the Chief Executive, and except in cases
where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by
the Chief Executive, presumptively the acts of the Chief Executive. (Emphases and underscoring supplied; citations
omitted)
117ticulated in Abakada, cannot be overstated — from the moment the law becomes effective, any provision of
law that empowers Congress or any of its members to play any role in the implementation or enforcement of
the law violates the principle of separation of powers and is thus unconstitutional .191That the said authority is
treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the same is
merely recommendatory and, as such, respondents’ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the
identification authority of legislators is only of recommendatory import. Quite the contrary, respondents — through
the statements of the Solicitor General during the Oral Arguments — have admitted that the identification of the
legislator constitutes a mandatory requirement before his PDAF can be tapped as a funding source, thereby
highlighting the indispensability of the said act to the entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
_______________
191 Abakada Guro Party List v. Purisima, supra note 155, at pp. 294-296.
192TSN, October 10, 2013, pp. 16, 17, 18, and 23.
118
Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solicitor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is
no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need [for] a
SARO and the NCA. And the SARO and the NCA are triggered by an identification from the
legislator.
xxxx
Solicitor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, “How can a legislator make sure that he is able to get PDAF Funds?” It is mandatory in
the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he
cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that
sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the separation
of powers principle
119and thus unconstitutional. Corollary thereto, informal practices, through which legislators have effectively
intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of
discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment.
That such informal practices do exist and have, in fact, been constantly observed throughout the years has not been
substantially disputed here. As pointed out by Chief Justice Maria Lourdes P. A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers [of the DBM, and both Houses of Congress] has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that [had] been done
since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special
Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written
into the law or informal practices institutionalized in government agencies, else the Executive department be
deprived of what the Constitution has vested as its own.
_______________
193 TSN, Ocftober 10, 2013, pp. 72-73.
120
Non-delegability of Legislative Power. 2.
a.Statement of Principle.
As an adjunct to the separation of powers principle,194legislative power shall be exclusively exercised by the body
to
_______________
194Aside from its conceptual origins related to the separation of powers principle, Corwin, in his commentary on
Constitution of the United States made the following observations:
At least three distinct ideas have contributed to the development of the principle that legislative power
cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three
powers of government if they can straightway remerge on their own motion? The second is the concept of due
process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of
agency “Delegata potestas non potest delegari,” which John Locke borrowed and formulated as a dogma of
political science . . . Chief Justice Taft offered the following explanation of the origin and limitations of this idea as
a postulate of constitutional law: “The well-known maxim “delegata potestas non potest delegari,’ applicable to the
law of agency in the general common law, is well understood and has had wider application in the construction of
our Federal and State Constitutions than it has in private law . . . The Federal and State Constitutions than it has in
private law . . . The Federal Constitution and State Constitutions of this country divide the governmental power into
three branches . . . In carrying out that constitutional division . . . it is a breach of the National fundamental law if
Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it
attempts to invest itself or its members with either executive power of judicial power. This is not to say that the
three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke
government and that each in the field of its duties may not invoke the action of the two other branches in so far as
the action invoked shall not be an assumption of the
121which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987 Constitution states
that such power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the provision on initiative and referendum. 195Based on
this provision, it is clear that only Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would be: (a)
delegated legislative power to local governments which, by immemorial practice, are allowed to legislate on purely
local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by law, exercise
powers necessary and proper to carry out a declared national policy in times of war or other national emergency, 197 or
fix within specified limits, and subject to such limitations and restrictions as Congress may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate
rulemakingauthority to implementing agencies for the limited purpose of either filling up the details of the law for
its enforcement (supple-
_______________
constitutional field of action of another branch. In determining what it may do in seeking assistance from another
branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of
the governmental coordination. (Emphases supplied)
196See Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 702 (1919).
197See Section 23(2), Article VI of the 1987 Constitution.
198See Section 28(2), Article VI of the 1987 Constitution.
122mentary rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-
making).199The conceptual treatment and limitations of delegated rule-making were explained in the case of People
v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle
of separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or “subordinate legislation” calculated to promote the public interest are
necessary because of “the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the law.”
x x x x
[Nevertheless, it must be emphasized that] [t]he rule-making power must be confined to
details for regulating the mode or proceeding to carry into effect the law as it has been
enacted. The power cannot be extended to amending or expanding the statutory requirements or to
embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned.
(Emphases supplied)
b.Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said legislators are
effectively allowed to individually exercise the power of appropriation, which — as settled in Philconsa —
is lodged in Congress.201
_______________
199Abakada Guro Party List v. Purisima, supra note 155, at p. 288.
200169 Phil. 437, 447-448; 79 SCRA 450, 458 (1977).
201Philippine Constitution Association v. Enriquez, supra note 114, at p. 522.
123That the power to appropriate must be exercised only through legislation is clear from Section 29(1), Article VI
of the 1987 Constitution which states that: “No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.” To understand what constitutes an act of appropriation, the Court, in Bengzon v.
Secretary of Justice and Insular Auditor 202 (Bengzon), held that the power of appropriation involves (a) the setting
apart by law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013
PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to
dictate (a) how much from such fund would go to (b) a specific project or beneficiary that they themselves also
determine. As these two (2) acts comprise the exercise of the power of appropriation as described in Bengzon, and
given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators
have been conferred the power to legislate which the Constitution does not, however, allow. Thus, keeping with the
principle of non-delegability of legislative power, the Court hereby declares the 2013 PDAF Article, as well as all
other forms of Congressional Pork Barrel which contain the similar legislative identification feature as herein
discussed, as unconstitutional.
Checks and Balances. 3.
Statement of Principle; Item-Veto Power. a.
The fact that the three great powers of government are intended to be kept separate and distinct does not mean
that they are absolutely unrestrained and independent of each other. The Constitution has also provided for an
elaborate system of checks and balances to secure coordination in the workings of the various departments of the
government.203
_______________
202Bengzon v. Secretary of Justice and Insular Auditor, 62 Phil. 912, 916 (1936).
124A 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 billsubmitted 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:
x x x. 27. Sec.
x x x x
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. (2)
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
_______________
204Abakada Guro Party List v. Purisima, supra note 155, at p. 287.
205Id., at p. 292.
206Bengzon v. Secretary of Justice and Insular Auditor, supra note 202, at pp. 916-917.
125the 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,
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207“Log-rolling legislation refers to the process in which several provisions supported by an individual legislator or
minority of legislators are combined into a single piece of legislation supported by a majority of legislators on a quid pro
quo basis: no one provision may command majority support, but the total package will.” See Rollo (G.R. No. 208566), p.
420, citing Briffault, Richard, “The Item Veto in State Courts,” 66 Temp. L. Rev. 1171, 1177 (1993).
208Passarello, Nicholas, “The Item Veto and the Threat of Appropriations Bundling in Alaska,” 30 Alaska Law
Review 128 (2013), citing Black’s Law Dictionary 1700 (9th ed. 2009). <http://scholarship.law.duke.edu/alr/vol30/iss1/5>
126precipitancy, 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,210the 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
_______________
209Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
210299 U.S. 410 (1937).
211To note, in Gonzales v. Macaraig, Jr. (G.R. No. 87636, November 19, 1990, 191 SCRA 452, 465),
citing Commonwealth v. Dodson (11 S.E., 2d 120, 176 Va. 281), the Court defined an item of
127item 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 to be
raised by a corresponding revenue proposal therein.” Meanwhile, with respect to discretionary funds, Section
25(6), Article VI of the 1987 Constitution requires that said funds “shall be disbursed only for public pur-
_______________
appropriation as “an indivisible sum of money dedicated to a stated purpose.” In this relation, Justice Carpio astutely
explained that an “item” is indivisible because the amount cannot be divided for any purpose other than the specific
purpose stated in the item.
128poses 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 “[i]n 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
_______________
212Rollo (G.R. No. 208566), p. 421.
129a mode of budgeting [which] effectively renders the constitutionally-given power of the President useless.” 213
On the other hand, respondents maintain that the text of the Constitution envisions a process which is intended
to meet the demands of a modernizing economy and, as such, lump-sum appropriations are essential to financially
address situations which are barely foreseen when a GAA is enacted. They argue that the decision of the Congress to
create some lump-sum appropriations is constitutionally allowed and textually-grounded. 214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since
the said amount would be further divided among individual legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively appropriate PDAF funds based on their own discretion.
As these intermediate appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-enactment
legislative identification budgeting system fosters the creation of a “budget within a budget” which subverts the
prescribed procedure of presentment and consequently impairs the President’s power of item veto. As petitioners
aptly point out, the above-described system forces the President to decide between (a) accepting the entire P24.79
Billion PDAF allocation without knowing the specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with
legitimate projects.215
_______________
213Id.
214Id., at p. 316.
215Id., at p. 421.
130Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would
remain constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation as above-
characterized. In particular, the lump-sum amount of P24.79 Billion would be treated as a mere funding source
allotted for multiple purposes of spending, i.e., scholarships, medical missions, assistance to indigents, preservation
of historical materials, construction of roads, flood control, etc. This setup connotes that the appropriation law leaves
the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the President’s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays,
“limit[ed] state auditors from obtaining relevant data and information that would aid in more stringently auditing the
utilization of said Funds.”216 Accordingly, she recommends the adoption of a “line by line budget or amount per
proposed program, activity or project, and per implementing agency.” 217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional
Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system provides for a greater
degree of flexibility to account for future contingencies cannot be an excuse to defeat what the Constitution requires.
Clearly, the first and essential truth of the matter is that unconstitutional means do not justify even commendable
ends.218
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216Id., at p. 566.
217Id., at p. 567.
218“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 irrec-
131 c.Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate defies
public accountability as it renders Congress incapable of checking itself or its Members. In particular, they point out
that the Congressional Pork Barrel “gives each legislator a direct, financial interest in the smooth, speedy passing of
the yearly budget” which turns them “from fiscalizers” into “financially-interested partners.” 219 They also claim that
the system has an effect on re-election as “the PDAF excels in self-perpetuation of elective officials.” Finally, they
add that the “PDAF impairs the power of impeachment” as such “funds are indeed quite useful, ‘to well, accelerate
the decisions of senators.’ ”220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that “public office is a
public trust,” is an overarching reminder that every instrumentality of government should exercise their official
functions only in accordance with the principles of the Constitution which embodies the parameters of the people’s
trust. The notion of a public trust connotes accountability,221hence, the various
_______________
oncilable with constitutional parameters, then it cannot still be allowed. 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.’ ” (Biraogo v. Philippine Truth Commission of 2010, supra note 118, p. 177; citations
omitted)
219Rollo (G.R. No. 208566), p. 406.
220Id., at p. 407.
221Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition,
p. 1108.
132mechanisms in the Constitution which are designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public funds may be checked
is the power of congressional oversight. As mentioned in Abakada,222 congressional oversight may be performed
either through: (a) scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted
in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power of confirmation; 223 or (b) investigation and monitoringof
the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork Barrel,
among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that individual legislators
are given post-enactment roles in the implementation of the budget makes it difficult for them to become
disinterested “observers” when scrutinizing, investigating or monitoring the implementation of the appropriation
law. To a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with post-
enactment authority, would, in effect, be checking on activities in which they themselves participate. Also, it must
be pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of
the 1987 Constitution which provides that:
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 14. Sec.
_______________
222Abakada Guro Party List v. Purisima, supra note 155.
223See Section 22, Article VI, 1987 Constitution.
224See Section 21, Article VI, 1987 Constitution.
133shall he, directly or indirectly, be interested financially in any contract with, or in any franchise
or special privilege granted by the Government, or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation, or its subsidiary, during his
term of office. He shall not intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation — a matter before
another office of government — renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual
legislator’s control of his PDAF per se would allow him to perpetuate himself in office. Indeed, while the
Congressional Pork Barrel and a legislator’s use thereof may be linked to this area of interest, the use of his PDAF
for re-election purposes is a matter which must be analyzed based on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity between legislators and
the Executive department, through the former’s post-enactment participation, may affect the process of
impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel
System’s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI of
the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of
Congressional Pork Barrel of similar nature are deemed as unconstitutional.134
Political Dynasties. 4.
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 Constitution222 which states that:
The State shall guarantee equal access to opportunities for public service, and 26. Sec. 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 a guideline for legislative or executive
action.226Therefore, 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.
Local Autonomy. 5.
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:
_______________
225Rollo (G.R. No. 208493), p. 9.
226See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, 100-101.
135
II ARTICLE
The State shall ensure the autonomy of local governments. 25. Sec.
X ARTICLE
The territorial and political subdivisions shall enjoy local autonomy. 2. Sec.
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. 3. Sec.

Pursuant thereto, Congress enacted RA 7160,227otherwise known as the “Local Government Code of 1991”
(LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
2. Sec.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.
_______________
227Entitled “AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991.”
136
x x x x
It is likewise the policy of the State to (c) 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:225
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. (Emphases and underscoring supplied)
229
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228230 Phil. 379, 387-388; 146 SCRA 294, 302-303 (1986).
229Id.
137In 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 “[i]t 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.” 231Drawing
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 par-
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230Rollo (G.R. No. 208566), pp. 95-96.
231Philconsa v. Enriquez, supra note 114, at p. 523.
232Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines, “Understanding the
‘Pork Barrel,’ ” <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf> (visited October 17, 2013).
233<http://www.gov.ph/2013/08/23/english-statement-of-president-aquino-on-the-abolition-of-pdaf-august-23-2013/>
138ticular, the Court observes that the gauge of PDAF and CDF allocation/division is based solely on the fact of
office, without taking into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district representative
of a highly-urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively “underdeveloped” compared to the former. To add, what rouses graver scrutiny
is that even Senators and Party-List Representatives — and in some years, even the Vice-President — who do not
represent any locality, receive funding from the Congressional Pork Barrel as well. These certainly are anathema to
the Congressional Pork Barrel’s original intent which is “to make equal the unequal.” Ultimately, the PDAF and
CDF had become personal funds under the effective control of each legislator and given unto them on the sole
account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the
functions of the various Local Development Councils (LDCs) which are already legally mandated to “assist the
corresponding sanggunian in setting the direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction.”234Considering that LDCs are instru-
_______________
234Section 106 of the LGC provides:
106. Sec.Local Development Councils.—(a) Each local government unit shall have a comprehensive multi-sectoral
development plan to be initiated by its development council and approved by its sanggunian. For this purpose, the
development council at the provincial, city, municipal, or barangal level, shall assist the corresponding sanggunian in
setting the direction of economic and social development, and coordinating development efforts within its territorial
jurisdiction.
139mentalities 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.
Validity of Appropriation. 1.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD 1869 (now, amended by PD 1993),
which respectively provide for the Malampaya Funds and the Presi-
_______________
235See Section 109 of the LGC.
236Rollo (G.R. No. 208566), p. 423.
140dential 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
_______________
237Id., at p. 427.
238Id., at pp. 439-440.
239Id., at pp. 434 and 441.
240See Guingona, Jr. v. Carague, supra note 173, where the Court upheld the constitutionality of certain automatic
appropriation laws for debt servicing although said laws did not readily indicate the exact amounts to be paid considering
that “the amounts nevertheless are made certain by the legislative parameters provided in the decrees”; hence, “[t]he
Executive is not of unlimited discretion as to the amounts to be disbursed for debt servicing.” To note, such laws vary in
great degree with the way the 2013 PDAF Article works considering that: (a) individual legislators and not the executive
make the determinations; (b) the choice of both the amount
141same 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
[T]here 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
_______________
and the project are to be subsequently made after the law is passed and upon the sole discretion of the legislator, unlike
in Guingona, Jr. where the amount to be appropriated is dictated by the contingency external to the discretion of the disbursing
authority; and (c) in Guingona, Jr. there is no effective control of the funds since as long as the contingency arises money shall
be automatically appropriated therefor, hence what is left is merely law execution and not legislative discretion.
241Id., at p. 462.
142appropriatepublic 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:
8. SectionAppropriations. 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
_______________
24223 Nev. 25 (1895).
143fees, signature bonus, discovery bonus, production bonus; all money collected from
concessionaires, representing unspent work obligations, fines and penalties under the Petroleum Act
of 1949; as well as the government share representing royalties, rentals, production share on service
contracts and similar payments on the exploration, development and exploitation of energy
resources, shall form part of a Special Fund to be used to finance energy resource development
and exploitation programs and projects of the government and for such other purposes as
may be hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
12. Sec.Special Condition of Franchise.—After deducting five (5%) percent as Franchise
Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
P150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority
infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines. (Emphases supplied)
Analyzing the legal text vis-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, “[a]fter
144deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate
gross earnings of [PAGCOR], or 60%[,] if the aggregate gross earnings be less than P150,000,000.00” (also a
determinable amount) “to finance the priority infrastructure development projects and x x x the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines” (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of the
1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains post-enactment
measures which effectively create a system of intermediate appropriations. These intermediate appropriations are the
actual appropriations meant for enforcement and since they are made by individual legislators after the GAA is
passed, they occur outside the law. As such, the Court observes that the real appropriation made under the 2013
PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-enactment determinations
made by the individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF
Article does not constitute an “appropriation made by law” since it, in its truest sense, only authorizes individual
legislators to appropriatein violation of the non-delegability principle as afore-discussed.
Undue Delegation. 2.
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
145will 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 Executive245either 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.246There 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.” Juris-
_______________
243Rollo (G.R. No. 208566), p. 438.
244Id., at p. 300.
245The project identifications made by the Executive should always be in the nature of law enforcement and, hence,
for the sole purpose of enforcing an existing appropriation law. In relation thereto, it may exercise its rule-making
authority to greater particularize the guidelines for such identifications which, in all cases, should not go beyond what the
delegating law provides. Also, in all cases, the Executive’s identification or rule-making authority, insofar as the field of
appropriations is concerned, may only arise if there is a valid appropriation law under the parameters as above-discussed.
246Abakada Guro Party List v. Purisima, supra note 155.
146prudence 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
_______________
247See Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009
Edition, pp. 686-687, citing Pelaez v. Auditor General, 15 SCRA 569, 576-577 (1965).
248Id., at p. 277.
249§ 438 Ejusdem Generis (“of the same kind”); specific words; 82 C.J.S. Statutes § 438.
147said 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
_______________
250Rollo (G.R. No. 208566), p. 437, citing § 438 Ejusdem Generis (“of the same kind”); specific words; 82 C.J.S.
Statutes § 438.
251Based on a July 5, 2011 posting in the government’s website <http://www.gov.ph/2011/07/05/budget-secretary-
abad-clarifies-nature-of-malampaya-fund/>; attached as Annex “A” to the Petitioners’ Memorandum), the Malampaya
Funds were also used for non-energy related projects, to wit:
The rest of the 98.73 percent or P19.39 billion was released for non-energy related projects: 1) in 2006, P1 billion for
the Armed Forces Modernization Fund; 2) in 2008, P4 billion for the Department of Agriculture; 3) in 2009, a total of
P14.39 billion to various agencies, including: P7.07 billion for the Department of Public Works and Highways; P2.14
billion for the Philippine National Police; P1.82 billion for [the Department of Agriculture]; P1.4 billion for the National
Housing Authority; and P900 million for the Department of Agrarian Reform.
148used — 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. 252Nevertheless, since the
amenda-
_______________
252For academic purposes, the Court expresses its disagreement with petitioners’ argument that the previous version
of Section 12 of PD 1869 constitutes an undue delegation of legislative power since it allows the President to broadly
determine the purpose of the Presidential Social Fund’s use and perforce must be declared unconstitutional. Quite the
contrary, the 1st paragraph of the said provision clearly indicates that the Presidential Social Fund shall be used to finance
specified types of priority infrastructure and socio-civic projects, namely, Flood Control, Sewerage and Sewage,
Nutritional Control, Population Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at
Kaunlaran (KKK) projects located within the Metropolitan Manila area. However, with regard to the stated geographical-
operational limitation, the 2nd paragraph of the same provision nevertheless allows the Presidential Social Fund to finance
“priority infrastructure and socio-civic projects throughout the Philippines as may be directed and authorized by the Office
of the President of the Philippines.” It must, however, be qualified that the 2nd paragraph should not be construed to mean
that the Office of the President may direct and authorize the use of the Presidential Social Fund to any kind of
infrastructure and socio-civic project throughout the Philippines. Pursuant to the maxim of noscitur a sociis, (meaning, that
a word or phrase’s “correct construction may be made clear and specific by considering the company of words in which it
is founded or with which it is associated”; see Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676
SCRA 579, 598-599) the 2nd paragraph should be construed only as an expansion of the geographical-operational
limitation stated in the 1st paragraph of the same provision and not a grant of carte blanche authority to the President to
veer away from the project types specified thereunder. In other words, what the 2nd paragraph merely allows is the use of
the Presidential Social Fund for Flood Control, Sewerage and Sewage, Nutritional Control, Population Control, Tulungan
ng Bayan Centers, Beautification and Kilusang Kabuha
149tory 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 infrastructure 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: “[t]he underlying framework of a system,
[especially] public services and facilities (such as highways, schools, bridges, sewers, and water-systems) needed to
support commerce as well as economic and residential development.” 253 In fine, the phrase “to finance the priority
infrastructure development projects” must be stricken down as unconstitutional since — similar to the above-
assailed provision under Section 8 of PD 910 — it lies independently unfettered by any sufficient standard of the
dele-
_______________
yan at Kaunlaran (KKK) projects even though the same would be located outside the Metropolitan Manila area. To
deem it otherwise would be tantamount to unduly expanding the rule-making authority of the President in violation of the
sufficient standard test and, ultimately, the principle of non-delegability of legislative power.
253Black’s Law Dictionary (7th Ed., 1999), p. 784.
150gating 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.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports. 1.
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 Fund[s] [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:
II ARTICLE
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. 28. Sec.
_______________
254Rollo (G.R. No. 208566), pp. 48-49.
255Id.
151
III ARTICLE
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. 7. Sec.
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

[W]hile 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)
_______________
256234 Phil. 521, 533-534; 150 SCRA 530, 539-540 (1987).
152Corollarily, 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
_______________
257252 Phil. 264; 170 SCRA 256 (1989).
258Id., at p. 279; p. 260.
153and/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,
_______________
259Id., at p. 278; p. 272.
154that undue interference with the duties of the custodian of the records may be prevented and that
the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the
second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e., “to
furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos.”
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters
in Congressional Deliberations.
Petitioners further seek that the Court “[order] the inclusion in budgetary deliberations with the Congress of all
presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from the x x x
Malampaya Fund, remittances from the [PAGCOR] and the [PCSO] or the Executive’s Social Funds[.]” 260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to the
prerogative of the political branches of government. Hence, lest the Court itself overreach, it must equally deny their
prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
_______________
260Rollo (G.R. No. 208566), p. 463.
155The 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)].”258 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
_______________
261Id., at pp. 459-462.
156conclude 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 “[a] specific 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. Practi-
_______________
262Id., at pp. 304-305.

263<http://www.dbm.gov.ph/wp-content/uploads/BESF/BESF2013/Glossary.pdf> (visited November 4, 2013).
157cally 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?
x x x x
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?
_______________
264Notice of Cash Allocation (NCA). Cash authority issued by the DBM to central, regional and provincial offices and
operating units through the authorized government servicing banks of the MDS,* to cover the cash requirements of the
agencies.
* MDS stands for Modified Disbursement Scheme. It is a procedure whereby disbursements by NG agencies chargeable
against the account of the Treasurer of the Philippines are effected through GSBs.**
** GSB stands for Government Servicing Banks. (Id.)
265TSN, October 10, 2013, pp. 35-36.
158
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs
issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which have been “released.”
In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by obligated SAROs, and
without any corresponding NCAs issued, must, at the time of this Decision’s promulgation, be enjoined and
consequently reverted to the unappropriated surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be disbursed even
though already obligated, else the Court sanctions the dealing of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been obligated but
not released — meaning, those merely covered by a SARO — under the phrase “and for such other purposes as may
be hereafter directed by the President” pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential
Social Fund under the phrase “to finance the priority infrastructure development projects” pursuant to Section 12 of
PD 1869, as amended by PD 1993, which were altogether declared by the Court as unconstitutional. However, these
funds should not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.159
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 “reflect[s] 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],
_______________
266Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013, 707
SCRA 66, citing Serrano de Agbayani v. Philippine National Bank, 148 Phil. 443, 447-448; 38 SCRA 429, 435 (1971).
267Id.
160is 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
_______________
268 Id.
161well 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
162which they are able to fund specific projects which they themselves determine; (d) all informal practices of
similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack
or excess of jurisdiction; and (e) the phrases (1) “and for such other purposes as may be hereafter directed by the
President” under Section 8 of Presidential Decree No. 910 and (2) “to finance the priority infrastructure
development projects” under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No.
1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative
power.
Accordingly, the Court’s temporary injunction dated September 10, 2013 is hereby declared to
be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013, as
well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase “and for such
other purposes as may be hereafter directed by the President” pursuant to Section 8 of Presidential Decree No. 910,
and (2) the Presidential Social Fund under the phrase “to finance the priority infrastructure development projects”
pursuant to Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at
the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special
Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds
covered by this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated
surplus of the general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall
remain therein to be utilized for their respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIESpetitioners’ prayer seeking that the Executive Secretary and/or the Department of Budget and
Management be ordered to provide
163the public and the Commission on Audit complete lists/schedules or detailed reports related to the availments
and utilization of the funds subject of these cases. Petitioners’ access to official documents already available and of
public record which are related to these funds must, however, not be prohibited but merely subjected to the
custodian’s reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice to
a proper mandamus case which they or the Commission on Audit may choose to pursue through a separate petition.
The Court also DENIES petitioners’ prayer to order the inclusion of the funds subject of these cases in the
budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches of
government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly prosecute all government officials and/or private individuals for
possible criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds
under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.
Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza and Reyes, JJ., concur.
Sereno (CJ.), See Concurring Opinion.
Velasco, Jr., J., No part.
Leonardo-De Castro, J., I concur and also join the Concurring Opinion of Justice Carpio.164
Brion, J., I join the Opinion of Justice Carpio, subject to my Concurring and Dissenting Opinion.
Abad, J., I join the Concurring Opinion of J. A. T. Carpio and the ponencia.
Leonen, J., See Concurring Opinion.
CONCURRING OPINION
CJ.: SERENO,
I concur in the result of the draft ponencia. In striking down the Priority Development Assistance Fund (PDAF)
for being unconstitutional and violative of the principle of separation of powers, the Members of this Court have
acted as one sober voice of reason amidst the multitude of opinions surrounding the present controversy. It is in the
spirit of this need for sobriety and restraint — from which the Court draws its own legitimacy — that I must add
essential, clarificatory points.
The Court does not deny that the PDAF had also benefited some of our countrymen who most need the
government’s assistance. Yet by striking it down, the Court has simply exercised its constitutional duty to re-
emphasize the roles of the two political branches of government, in the matter of the needs of the nation and its
citizens. The Decision has not denied health and educational assistance to Filipinos; rather, it has emphasized that it
is the Executive branch which implements the State’s duty to provide health and education, among others, to its
citizens. This is the structure of government under the Constitution, which the Court has merely set aright.
Guided by the incisive Concurring Opinion penned by Justice Florentino Feliciano in the seminal case of Oposa
v. Factoran, I suggest that the Court circumscribe what may be left for future determination in an appropriate case
— lest we
165inflict what he termed “excessive violence” to the language of the Constitution. Any collegial success in our
Decision is measurable by the discipline to rule only on defined issues, and to curb any excess against the mandated
limitations of judicial review.
As Justice Feliciano has stated in Oposa, in certain areas, ‘‘our courts have no claim to special technical
competence, experience and professional qualification. Where no specific, operable norms and standards are shown
to exist, then the policy making departments — the legislative and executive departments — must be given a real
and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the
courts should intervene.”1 Other-
_______________
1J. Feliciano stated: “The Court has also declared that the complaint has alleged and focused upon “one specific
fundamental legal right — the right to a balanced and healthful ecology” (Decision, p. 14). There is no question that “the
right to a balanced and healthful ecology” is “fundamental” and that, accordingly, it has been “constitutionalized.” But
although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as “specific,”
without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope
and generalized in character than a right to “a balanced and healthful ecology.”
x x x x
When substantive standards as general as “the right to a balanced and healthy ecology” and “the right to health” are
combined with remedial standards as broad ranging as “a grave abuse of discretion amounting to lack or excess of
jurisdiction,” the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where no specific, operable
norms and standards are shown to exist, then the policy making departments — the legislative and executive departments
— must be given a real and effective opportunity to fashion and promulgate those norms and
166wise, the drastic alternative would be “to propel courts into the uncharted ocean of social and economic policy
making.”2 Thus, I must address the dissonance between what is delineated in the fallo of the Decision, as opposed to
what some may mistakenly claim to be the implicit consequences of the discussion.
The only question that appears to be a loose end in the ponencia was whether we still needed to have an
extended discussion on lump-sums versus line-items for this Court to dispose of the main reliefs prayed for, i.e., to
strike down portions of the 2013 General Appropriations Act (GAA) regarding the PDAF, the Malampaya Fund or
P.D. No. 910, and the Presidential Social Fund or P.D. No. 1869 as amended by P.D. No. 1993 for
unconstitutionality.
The remaining concern is founded on the need to adhere to the principle of judicial economy: for the Court to
rule only on what it needs to rule on, lest unintended consequences be generated by its extensive discussion on
certain long-held budgetary practices that have evolved into full-bodied statutory provisions, and that have even
been validated by the Supreme Court in its prior decisions. After, however, it was clarified to the Court by
the ponenteherself that the effect of the fallo was only with respect to the appropriation type contained in Article
XIV of the 2013 GAA, the unanimous vote of the Court was inevitable. The entire Court therefore supported
the ponencia, without prejudice to the opinions of various Members, including myself.
As it stands now, the conceptual formulations on lump-sums, while not pronouncing doctrine could be
premature and confusing. This is evidenced by the fact that different opinions had different definitions of lump-sum
appropriations. Justice Carpio cites Sections 35 and 23 of the Administrative Code to
_______________
standards, and to implement them before the courts should intervene.” G.R. No. 101083, 30 July 1993, 224 SCRA
792.
2Id.
167say that the law does not authorize lump-sum appropriations in the GAA. 3 But Section 35 itself talks of how to
deal with lump-sum appropriations. Justice Brion made no attempt to define the term. Justice Leonen recognized the
fact that such discussion needs to be initiated by a proper case.4
Even the ponencia itself stated that Article XIV of the 2013 GAA is unconstitutional for being, among others, a
“prohibited form of lump-sum,” which implies that there are allowable forms of lump-sum. This begs the question:
what are allowable forms of lump-sum? In the first place, what are lump-sums? Administrative practice and
congressional categories have always been liberal about the definition of lump-sums. Has this Court not neglected to
accomplish its preliminary task, by first and foremost agreeing on the definition of a lump-sum?
Both Justice Brion5 and Justice Leonen6warned against the possibility of the Court exceeding the bounds set by
the actual case and controversy before us. That a total condemnation of lump-sum funding is an “extreme position
that disregards the realities of national life,” as Justice Brion stated,
_______________
3Carpio, J. (Concurring Opinion, pp. 22-24)

4Leonen, J. (Concurring Opinion, pp. 36-37).
5Brion, J., (Concurring and Dissenting Opinion, p. 17): “Lest this conclusion be misunderstood, I do not per se take
the position that all lump sums should be disallowed as this would be an extreme position that disregards the realities of
national life. But the use of lump sums, to be allowed, should be within reason acceptable under the processes of the
Constitution, respectful of the constitutional safeguards that are now in place, and understandable to the people based on
their secular understanding of what is happening in government.”
6Leonen, J., Supra note 4 at pp. 36-37: “I am of the view that our opinions on the generality of the stated purpose
should be limited only to the PDAF as it is now in the 2013 General Appropriations Act. The agreement seems to be that
that item has no discernible purpose. There may be no need, for now, to go as detailed as to discuss the fine line between
“line” and “lump-sum” budgeting.”
168and that it is by no means doctrinal and “should be clarified further in a more appropriate case,” as discussed by
Justice Leonen, are correct.
In the same spirit, I separately clarify the import of our decision, so that no unnecessary inferences are made. As
worded in the dispositive portion,7 the following are unconstitutional: first, the entire 2013 PDAF Article; second, all
legal provisions, of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles
and the various Congressional Insertions; and third, all informal practices of similar import and effect. The extent of
their unconstitutionality has been defined as follows: (1) these 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 identification, modification and revision of project identification, fund release and/or fund realignment,
unrelated to the power of congressional oversight; (2) these confer/red personal, lump-sum allocations from which
they are able to fund specific projects which they themselves determine.
Given the circumscribed parameters of our decision, it is clear that this Court made no doctrinal pronouncement
that all lump-sum appropriations per se are unconstitutional.
At most, the dispositive portion contained the term “lump-sum allocations” which was tied to the specific
characterization of the PDAF system found in the body of the decision — that is, “a singular lump-sum amount to be
tapped as a source of funding for multiple purposes x x x such appropriation type necessitat[ing] 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 x x x x [by] individual legislators.”8
_______________
7Decision, pp. 69-70.
169The ponencia, in effect, considers that the PDAF’s infirmity is brought about by the confluence of (1) sums
dedicated to multiple purposes; (2) requiring post-enactment measures; (3) participated in, not by the Congress, but
by its individual Members.
For the Court, it is this three-tiered nature of the PDAF system — as a singular type of lump-sum appropriation
for individual legislators — which makes it unconstitutional. Any other type, kind, form, or assortment beyond this
aggregated formulation of “lump-sum allocation” is not covered by our declaration of unconstitutionality.
Although Commission on Audit Chairperson Maria Gracia M. Pulido Tan recommended the adoption of a “line
by line budget or amount per proposed program, activity or project, and per implementing agency:” such remains a
mere recommendation. Chairperson Tan made the recommendation to relay to the Court the operational problems
faced by state auditors in the conduct of post-audit examination. A policy suggestion made to solve a current
problem of budget implementation cannot be the legal basis upon which unwarranted legal conclusions are
anchored.
Briefly, I fully support the following pronouncements:
First, that the 2013 Priority Development Assistance Fund (PDAF) is unconstitutional for violating the
separation of powers, and;
Second, that the PDAF is unconstitutional for being an undue delegation of legislative functions.
However, I believe that the discussions on lump-sum appropriations, line-item appropriations, and item-veto
power are premature.
These discussions were wrought, to my mind, by the blurring of the limits of the power of judicial review, the
role of the judiciary in the constitutional landscape of the State, and of the basic principles of appropriation law.
Above all, this Court must remember its constitutional mandate, which is to
170interpret the law and not to create it. We are given the power, during certain instances, to restate the
constitutional allocation to the other two branches of government; but this power must be exercised with sufficient
respect for the other powers. The Members of this Court are not elected by the people. We are not given the
honoured privilege to represent the people in law-making, but are given the sacred duty to defend them by upholding
the Constitution. This is the only path the judiciary can tread. We cannot advocate; we adjudicate.
To arrive at an unwarranted conclusion, i.e., that all lump-sum appropriations are invalid, whether in the 2013
GAA only or in all appropriation laws, is not sufficiently sensitive to the process of deliberation that the Members of
this Court undertook to arrive at a significant resolution. More importantly, this inaccurate inference will jeopardize
our constitutional limitation to rule only on actual cases ripe for adjudication fully litigated before the Court.
I. COEQUALITY OF THE THREE BRANCHES NECESSITATES JUDICIAL RESTRAINT
In any dispute before this Court,
judicial restraint is the general rule.
Since the ponencia crafted a ruling on a highly technical matter, it is only fitting that the nuances, implications,
and conclusions on our pronouncement be elucidated. My views are guided by the inherent restraint on the judicial
office; as unelected judges, we cannot haphazardly set aside the acts of the Filipino people’s representatives. This is
the import of the requirement for an actual case or controversy to exist before we may exercise judicial review, as
aptly noted by the pre-eminent constitutionalist, former Associate Justice Vicente V. Mendoza:
Insistence on the existence of a case or controversy before the judiciary undertakes a review of
legislation
171gives it the opportunity, denied to the legislature, of seeing the actual operation of the statute as
it is applied to actual facts and thus enables it to reach sounder judgment. 9
171In fact, the guiding principle for the Court should not be to “anticipate a question of constitutional law in
advance of the necessity of deciding it,”10 but rather to treat the function of judicial review as a most important and
delicate matter; after all, we cannot replace the wisdom of the elected using our own, by adding qualifications under
the guise of constitutional “interpretation.” While it is true that the Constitution must be interpreted both in its
written word and underlying intent, the intent must be reflected in taking the Constitution itself as one cohesive,
functional whole.
A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that purpose. 11
_______________
9VICENTE V. MENDOZA, JUDICIAL REVIEW, p. 92 [hereinafter Mendoza].
10Id., at p. 94, citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
11Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 and 83815, 22 February 1991, 194 SCRA 317, 325.
172In other words, alongside deciding what the law is given a particular set of facts, we must decide “what not
to decide.”12 Justice Mendoza likens our Supreme Court to the U.S. Supreme Court, in that “its teachings… x x x
have peculiar importance because it interprets principles of fact and of value, not merely in the abstract, but in their
bearing upon the concrete, immediate problems which are at any given moment puzzling and dividing us… For this
reason the court holds a unique place in the cultivation of our national intelligence.” 13
Thus, in matters such as the modality to be employed in crafting the national budget, this Court must be sensitive
of the extent and the limits of its pronouncements. As Justice Laurel instructively stated, the structure of government
provided by the Constitution sets the general metes and bounds of the powers exercised by the different branches;
the judiciary cannot traverse areas where the charter does not allow its entry. We cannot interpret the Constitution’s
silence in order to conform to a perceived preference on how the budget should be run. After all, it is the
Constitution, not the Court, which has “blocked out with deft strokes and in bold lines,” the allotment of power
among the different branches, viz.:
(T)his power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question raised
or the very lis motapresented. Any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is pre-
_______________
12MENDOZA, citing Paul A. Freund, supra note 9 at p. 95.
13Id., citing Alexander Meiklejohn.
173sumed 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 governments
of the government.
But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
“the chief palladium of constitutional liberty . . . the people who are authors of this blessing must
also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . .
aggression on the authority of their constitution.” In the last and ultimate analysis, then, must the
success of our government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.” (Emphasis supplied)
14
Wholesale rejection of lump-sum

allocations contrives a rule of
constitutional law broader than
what is required by the precise
facts in the case.
To conclude that a line-item budgeting scheme is a matter of constitutional requirement is to needlessly strain
the Constitution’s silence on the matter. Foremost among the duties of this Court is, as previously discussed, to
proceed based only on what it needs to resolve. Hence, I see no need to create brand new doctrines on budgeting,
especially not ones that needlessly restrict the hands of budget-makers according to an apparently indiscriminate
condemnation of lump-sum funding. To further create a constitutional obligation of the Executive and Legislative to
follow a line-item budgeting
_______________
14 Angara v. Electoral Commission, 63 Phil. 139, 156-159 (1936).
174procedure, and — more dangerously — give it the strength of a fundamental norm, goes beyond what the
petitioners were able to establish, and ascribes a constitutional intent where there is none.
Again, the Court’s power of judicial review must be confined only to dispositions which are constitutionally
supportable. Aside from the jurisdictional requirements for the exercise thereof, other guidelines are also mandated,
i.e., that the question to be answered must be in a form capable of judicial resolution; that as previously discussed,
the Court will not anticipate a question in advance of the necessity of deciding it; and, most relevant to the present
case, that the Court “will not formulate a rule of constitutional law broader than is required by the precise
facts on which it is to be applied.”15
Given a controversy that raises several issues, the tribunal must limit its constitutional construction to the precise
facts which have been established. This rule is most applicable “in determining whether one, some or all of the
remaining substantial issues should be passed upon.” 16Thus, the Court is not authorized to take cognizance of an
issue too far-removed from the other.
The above rule is bolstered by the
fact that petitioners have raised
other grounds more supportable
by the text of the Constitution.
The lis mota or the relevant controversy 17 in the present petitions concerns the principles of separation of powers,
non-
_______________
15Demetria v. Alba, 232 Phil. 222; 148 SCRA 208 (1987), citing Liverpool, N.Y. & P.S.S. Co. v. Emigration
Commissioners, 113 U.S. 33, 39.
16Id.
17 In Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236: It is a rule firmly
entrenched in
175delegability of legislative functions, and checks and balances in relation to the PDAF as applied only to Article
XLIV of the 2013 General Appropriations Act or R.A. No. 10352.
In the main, the Court gave three reasons to support the conclusion that the PDAF is unconstitutional.
First, the ponencia held that post-enactment measures embedded in the PDAF — project identification, fund
release, and fund realignment — are not related to legislative duties, and hence, are encroachments on duties that
properly belong to the executive function of budget execution.18
The ponencia laid the demarcation between the three branches of government, and emphasized the relevant
doctrine in Abakada Guro Party List v. Purisima,19 namely: “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.” Undoubtedly, this holding
determines the lis mota of the case as it squarely responded to petitioners’ claim that the PDAF violated the principle
of separation of powers.20
Second, the ponencia made a finding that these post-enactment measures are effectively exercised by the
individual legislators, and not by the Congress as a legislative body.21
The ponencia struck down the PDAF on the basis of the general principle of non-delegability of rule-making
functions
_______________
our jurisprudence that the constitutionality of an act of the legislature will not be determined by the courts unless that,
question is properly raised and presented in appropriate cases and is necessary to a determination of the case, i.e., the issue
of constitutionality must be the very lis mota presented.
19584 Phil. 246, 289-290; 562 SCRA 251, 294-296 (2008).
20Urgent Petition for Certiorari and Prohibition, pp. 3, 16.
21Decision, p. 45.
176lodged in the Congress.22 It then ruled that the individual participation of the Members of the Congress is an
express violation of this principle. Again, this ruling is already determinative of the lis mota of the case, as it directly
addressed petitioners’ principal claim that the PDAF unduly delegates legislative power. 23
Given that the lis mota has been squarely disposed of on these thorough, responsive, and determinative
constitutional grounds, it was unnecessary to stretch the discussion to include the propriety of lump-sum
appropriations in the budget.
The questions surrounding lump-sum appropriations, in the context of how they arose during the interpellation,
are not legal questions. Unlike the first two reasons advanced by the ponencia in finding for the unconstitutionality
of the PDAF, the invalidity of lump-sum appropriations finds no textual support in the Constitution. By its very
words, the Constitution does not prohibit lump-sum appropriations. In fact, the history of legislative appropriations
suggests otherwise.
As it stands now, the plain text of
the Constitution and the Revised
Administrative Code renders the
modality of budgeting to be a
political question.
The Constitution contains provisions that regulate appropriation law, namely: it must originate from the House
of Representatives,24 its items can be vetoed by the President, 25 it is initiated by the Executive,26 and money can only
be paid out
_______________
22Id., at p. 46.
23Urgent Petition for Certiorari and Prohibition, pp. 4, 16.
241987 CONSTITUTION, Article VI, Section 24.
25Id., Article VI, Section 27 (2).
26Id., Article VII, Section 22.
177of the Treasury by virtue of appropriations provided by law. 27 Congress may not increase the appropriations
recommended by the President for the operation of the Government as specified in the budget.28
The form, content, and manner of preparation of the budget must be prescribed by law, and no provision or
enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular
appropriation therein, and such provision or enactment shall be limited in its operation to the appropriation to which
it relates.29 Procedures involving appropriations must be uniform. 30 A special appropriations bill must be specific in
purpose and supported or supportable by funds. 31 Only the heads of the branches of government, as well as the
constitutional commissions and fiscally independent bodies may be authorized to augment items in
appropriations.32 Discretionary funds are regulated.33Appropriations of the previous year are automatically revived if
Congress fails to pass a new law.34Appropriations for fiscally autonomous agencies are released
automatically.35Furthermore, in relation to all this, the Constitution gives to the President the duty to faithfully
execute the law.36
Beneath this framework runs a sea of options, from which the two political branches must carve a working,
functioning fiscal system for the State. So long as these basic tenets are maintained, the political branches can ply
the route of the
_______________
27Id., Article VI, Section 29(1).
28Id., Article VI, Section 25(1).
29Id., Article VI, Section 25(1) & (2).
30Id., Article VI, Section 25(3)
35Id., Article X, Section 6; Article IX-A, Section 5; Article XIII, Section 17.
36Id., Article VII, Sections 17 & 5.
178way they deem appropriate to achieve the purpose of the government’s budget. What are thus clearly set forth
are requirements for appropriations, and not the modalities of budgeting which fall squarely under the technical
domain of the Executive branch, namely, the Department of Budget and Management (DBM).
When the Constitution gives the political branches a “textually demonstrable constitutional commitment of the
issue[,]”37 or the lack of “judicially discoverable and manageable standards for resolving it[,]” 38 or even the
“impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate
branches of government[,]”39 then there is a political question that this Court, in the absence of grave abuse of
discretion, cannot conclude.40
Apart from the provisions already discussed, there are no constitutional restrictions on how the government
should prepare and enact its budget. In fact, these restrictions are mostly procedural and not formal. If the
Constitution does not impose a specific mode of budgeting, be it purely line-item budgeting, purely lump-sum
budgeting, a mixture of the two, or something else entirely, e.g., zero balance lump-sum, loan repayment schemes,
or even performance-informed budgeting, then neither should this Court impose the line-item budgeting formula on
the Executive and Legislative branches.
This confusion appears to have stemmed from the highly limited exchanges in the oral arguments between one
of the petitioners and the Chairperson of the Commission on Audit (COA), on one hand, and a Member of the Court,
on the other.
_______________
37MENDOZA, supra note 9 at p. 314.
38Id.
39Id.
40This has been exhaustively discussed by former Chief Justice, then-Associate Justice Puno, in his concurring
opinion in Integrated Bar of the Philippines v. Zamora, 392 Phil. 618; 338 SCRA 81 (2000).
179The argument progressed on the basis of the Member’s own suggestion that the item-veto power of the President
is negated by lump-sum budgeting despite the fact that it was not the very issue identified in the petitions. While it is
true that the COA Chairperson opined that line-item is preferred, that statement is an operational standard, not a
legal standard. It cannot be used to support a judicial edict that requires Congress to adopt an operational standard
preferred, even if suggested by the COA Chairperson.
The Court never asked Congress what its response would be to a wholesale striking down of lump-sum
budgeting. It never asked the DBM whether it could submit an expenditure proposal that has nothing but line-item
budgets. To reject even very limited forms of lump-sum budgeting without asking whether it can even be
operationally done within the very tight timeline of the Constitution for preparing, submitting, and passing into law a
national budget is simply plain wrong and most unfair. It is as if this Court is trying to teach both political branches
— who constitute the nation’s top 300 elected officials — what they can and cannot do, in a manner that will
completely take them by surprise, as lump-sum budgeting was never the lis mota in this case. At the very least, this
is not the case for that matter, if eventually this matter were also to be decided.
II. MODALITIES UNDER THE APPROPRIATIONS LAW
Government accounting takes place through concurrent processes. First is the call to all agencies, including
fiscally independent ones, such as the Supreme Court. The deadline for this is usually in March or April. Then the
proposals are all collated in a comprehensive document, and vetted by the DBM, and submitted to the President for
approval. Alongside this, the government makes a schedule of revenues, with all its economic assumptions and
growth targets. Next is the
180budget formulation, which results in a proposed national expenditure program (NEP) also from the Executive.
The duty to formulate the above documents is given by law to the DBM, in coordination with the National
Economic Development Authority (NEDA), the Department of Finance (DOF), and all the various agencies of the
government.41 After the NEP is finalized, it is submitted to the House of Representatives’ Committee on
Appropriations no later than thirty days from the opening of every regular session. 42 Thereupon the Committee crafts
a draft General Appropriations Act on the basis of the NEP for the specified fiscal year, which is passed on to the
Senate Committee on Finance. 43 The Senate is given the power to propose amendments to the House bill under the
1987 Constitution.44 Finally, after going through the committees involved, which potentially includes a bicameral
conference committee for the national budget, the bill is passed into law through the usual course of legislation.
Once the appropriations law is passed, the day-to-day management of the national budget is left to the DBM and
DOF, in accordance with the appropriate rules and regulations. Simultaneously, the COA is tasked to conduct
auditing and post-auditing throughout the fiscal year, with a final audit report presented to the President and
Congress at the end of such year.45
In this whole process, an appropriation can be made and has been made at the lump-sum level. While not
initially broken down in the budget formulation aspect of the entire expenditure process, the individual expenditures
sourced from these lump-sum appropriations are broken down in
_______________
41ADMINISTRATIVE CODE, Executive Order No. 292, Book VI.
421987 CONSTITUTION, Article VII, Section 22.
43SENATE RULES, Rule X, Section 13 (4).
441987 CONSTITUTION, Article VI, Section 24.
45Id., Article IX-D, Section 4.
181journal entries after the fact,46 during the auditing process of the COA, which has the power to issue notices of
disallowance should it find a particular expenditure to have been improper under law and accounting rules.
Consequently, a lump-sum appropriation can still be audited and accounted for properly. This recognizes the fact
that lump-sum appropriating is a formal concern of the COA, and all other agencies and instrumentalities of the
government that take part in the appropriations process. In fact, the Administrative Code gives formal discretion to
the President, in the following manner:
12. SectionForm and Content of the Budget.—xxx The budget shall be presented to the
Congress in such form and content as may be approved by the President and may include the
following: xxx 47
It thus appears from the perspective of this process, that the Legislature never considered the form of the budget
as being constitutionally infirm for containing lump-sums, an attitude engendered from the birth of the 1987
Constitution, that has lasted up until this case was argued before this Court. It is perplexing to see any eager
discussion at this opportunity to make pre-emptive declarations on the invalidity of the lump-sum budgeting form,
when no party has raised the issue in the principal petitions.
_______________
46See Generally Accepted Accounting Principles and International Financial Reporting Standards, adopted through
the Philippine Financial Reporting Standards. See http://www.picpa.com.ph/Financial-Reporting-Standards-
Council/Philippine-Financial-Reporting-
Standards/Philippine-Financial-Reporting-Standards.aspx (last accessed 17 November 2013).
47ADMINISTRATIVE CODE, Executive Order No. 292, Book VI, Sec. 12.
182
Lump-sum appropriations are
not textually prohibited by the
Constitution.
The purported basis for this preference for line-item is that the item-veto power of the President is negated by
the existence of lump-sum appropriations. This implication, however, oversimplifies the concept of the item-veto, as
understood in the wording of the Constitution as well as jurisprudence.
In the first place, all cases in which this Court ruled on the item-veto power were generated by an actual
controversy. In stark contrast, the veto power has neverbeen raised as an issue in this case until raised as a possible
issue in the oral arguments. Neither the President (who should be invoking a direct injury if the power were
allegedly denied him) nor Congress (whose product would then be tampered with by a presidential veto) is
complaining. It behooves this Court to step back and not needlessly create a controversy over the item-veto power
when there is none.
The item veto-power of the Governor-General in past appropriation laws originating from the United States was
given to the President, Prime Minister, and President respectively in the 1935, 1973, and 1987 Constitutions. 48The
most recent incarnation is stated thusly:
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. 49
It is noteworthy that the veto refers to “any particular item or items” and not “line-items” or “earmarked
appropriations.”
_______________
481935 CONSTITUTION, Article VI, Section 20(3); 1973 CONSTITUTION, Article VIII, Section 20(2);
1987 CONSTITUTION, Article VI, Section 27(2).
491987 CONSTITUTION, Article VI, Section 27(2).
183In Gonzales v. Macaraig,50 we declared that the term “item” in the Constitution referred to a specific
appropriation of money, dedicated to a stated purpose, and not a general provision of law:
The terms item and provision in budgetary legislation and practice are concededly different. An
item in a bill refers to the particulars, the details, the distinct and severable parts x x x of the
bill. It is an indivisible sum of money dedicated to a stated purpose. The United States Supreme
Court, in the case of Bengzon v. Secretary of Justice declared “that 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.” (Citations omitted, emphasis
supplied). 51
The Constitution’s “item” is, therefore, an allocation of money for a stated purpose, as opposed to a general
provision in the appropriations law that does not deal with the appropriation of money, or in the words of Gonzales,
“inappropriate provisions.” Thus, a lump-sum appropriation is an item for purposes of the Presidential veto,
considering the fact that it is an appropriation of money for a stated purpose. The constitutional provision does
nothing to prohibit the appropriation apart from that. As will be discussed, this is the crucial point, because a lump-
sum item as defined does not, as it stands, appear to violate the requirement of stated purpose and specificity.
This Court has, in fact, already ruled on the status of lump-sum appropriation. The vetoed item that was the
subject of dispute in Bengzon v. Drilon52 was a lump-sum appropriation for the “general fund adjustment,” and that it
was “an item
_______________
50G.R. No. 87636, 19 November 1990, 191 SCRA 452.
51Id., at p. 465.
52G.R. No. 103524, April 15, 1992, 208 SCRA 133.
184which appropriates P500,000,000.00 to enable the Government to meet certain unavoidable obligations which
may have been inadequately funded by the specific items for the different branches, departments, bureaus, agencies,
and offices of the government.”53 Since the Court itself in Bengzon had defined lump-sum provisions to be
constitutional “items,” then the item-veto power of the President against lump-sum funds remains intact.
It has been stated that the President’s item-veto power is hampered when the “pork barrel” is lumped together
with beneficial programs, which thus destroys the check and balance between the Executive and Legislative. This
view seems to confuse the actual definition of lump-sum items (as discussed infra, items with more than one object)
with line-items (singular object). Lump-sum items are not items without a specific purpose. Their stated purpose
simply allows the funds to be used on multiple objects. “Specific” should not be equated with “singular.” The
former is an aspect of quality, the latter quantity. 54Singularity and multiplicity qualify the word “object” and not
purpose, which are wholly different since a purpose can refer to several objects, e.g., the use of the plural “projects”
instead of “project.”
In fact, the law journal article cited in the Separate Opinion of Justice Carpio, which was cited to define the
“pork barrel” as an “appropriation yielding rich patronage benefits,” itself acknowledges the validity of lump-sum
budgeting, citing the United States’ own budgeting practice. It goes even further to highlight the disadvantages
inherent in adopting a purely line-item budget, viz.:
_______________
53Id., at p. 144.
54Specific means “special or particular.” Accessible at http://www.merriam-webster.com/dictionary/specific (last
accessed 18 November 2013); Singular means “showing or indicating no more than one thing.” Accessible
at http://www.merriam-webster.com/dictionary/singular(last accessed 18 November 2013)
185
Congress has traditionally budgeted appropriations so that each encompasses several projects or
activities. Such lump-sum budgeting allows the President and administrative agencies to determine
how funds within and sometimes between budget accounts should be spent. Were Congress instead
to appropriate narrowly by line-item the President would, in the absence of an item veto, lose much
of the discretion and flexibility he modernly enjoys at the appropriation stage.
Lump-sum budgeting allows the President not only to selectively allocate lump sums, but
also to transfer funds between budget accounts when necessary to save programs that might
otherwise perish because Congress appropriated too little or was unable to anticipate
unforeseen developments. More significantly for purposes of comparison with a line-item veto,
lump-sum budgeting also authorizes the President to shift funds within a single appropriation
account by reprogramming. Unlike a transfer of funds, which typically requires either
statutory support or a national emergency, reprogramming is subject to mostly non-statutory
controls “to be discovered in committee reports, committee hearings, agency directives,
correspondence between subcommittee chairmen and agency officials, and also gentlemen’s
agreements and understandings that are not part of the public record.” The justification for
reprogramming is congressional recognition “that in most instances it is desirable to maintain
executive flexibility to shift around funds within a particular lump-sum appropriation account so
that agencies can make necessary adjustments for ‘unforeseen developments, changing
requirements... and legislation enacted subsequent to appropriation.’” (Emphasis supplied, citations
55
omitted.)
_______________
55DENISE C. TWOMEY, The Constitutionality of a Line-Item Veto: A Comparison with Other Exercises of Executive
Discretion Not to Spend, 34 GOLDEN GATE U.L. Rev. 305, 338 (1989).
186To restate, Gonzales outlined the following legal requirements for valid appropriations on budget items:
First, that an item is “an indivisible sum of money dedicated to a stated purpose.”56
Second, that an item is in itself is a “specific appropriation of money, not some general provision of law.”57
There is therefore no condition that the purpose be singular. 58 As will be demonstrated, the difference between a
lump-sum and line-item is just the number of objects a lump-fund may have. After all, even if the purpose has
multiple objects, it is still a stated purpose.
The use of the COA Memorandum59 to buttress the argument that the Constitution requires line-item budgeting is
misleading. Again, even if the COA Chairperson prefers line-item budgeting, such preference is not equivalent to a
legal standard sufficient for this Court to strike down all forms of lump-sum budgeting.
At this point, there appears to be an attempted transformation of policy recommendations into legal imperatives.
No matter how desirable these recommendations on adopting a purely line-item budget may sound — and they may
turn out to be the best alternative — we cannot equate seeming consensus on good and desirable policy, with what
the law states. The choice of policy is not ours to make, no matter how intelligent or practical we deem ourselves to
be.
In any case, prevailing jurisprudence allows
for the conclusion that the item-veto power
of the President cannot be impaired.
_______________
56Supra note 52 at p. 144.
57Supra note 52 at pp. 143-144.
58Decision, p. 48.
59COA Memorandum, dated 17 October 2013, pp. 22-23 & 25-26.
187The Court in Gonzales60 described the three modes of veto available to the President. The first is the veto of
an entire bill under Article VI, Section 27(1). The second is the item-veto in an appropriation, revenue, or tariff bill.
The third is an iteration of the second, which is the veto of provisions as previously defined by the 1935
Constitution. With respect to the second mode of veto, Gonzales extends the application of the item veto power to
“inappropriate provisions,” as we stated:
Consequently, Section 55 (FY ‘89) and Section 16 (FY ‘90) although labelled as “provisions,”
are actually inappropriate provisions that should be treated as items for the purpose of the
President’s veto power. (Emphasis supplied, citations omitted)
61
Thus, even if we were to assume that a lump-sum appropriation is not an “item” as defined by Gonzales, as
previously expounded, for purposes of the Presidential veto, it is still an item, and the item-veto power appears to
remain unimpaired by virtue of jurisprudential precedent.
To summarize, whether the appropriation is a line-item, as claimed by petitioners, or a lump-sum appropriation
item, as proposed in an Opinion, or even a general provision of law that is unrelated to the appropriation law, the
power of the President to exercise item-veto is intact. Whichever interpretation we accept as to the nature of lump-
sum appropriations — though as I have shown, they are properly appropriation “items” — is irrelevant.
As will be discussed infra, an analysis of the nature of a lump-sum appropriation can clear the apparent
misunderstanding on lump-sums.
_______________
60Supra note 52.
61Supra note 52 at p. 467.
188
History of Appropriations and the
Federal Legacy
Historically, the constitutional provisions on appropriations were adopted from the United States’ Jones Law of
1916,62 which governed the Philippines until its transition into a Commonwealth and, later on, a fully independent
state. Section 3(m) of the law provides:
(m)How public funds to be spent.—That no money shall be paid out of the treasury except in
pursuance of an appropriation by law.
Section 19(b) expressed what is now coined the “item-veto” power of the President, in this manner:
(b)The veto on appropriations.—The Governor-General shall have the power to veto any
particular item or items of an appropriation bill, but the veto shall not affect the item or items to
which he does not object. The item or items objected to shall not take effect except in the manner
heretofore provided in this section as to bills and joint resolutions returned to the Legislature
without his approval.
In fact, the present mechanism that retains the previous year’s appropriation law in case the Legislature fails to
pass a new one was also based on the Jones Law, viz.:
(d)Revisal of former appropriations.—If at the termination of any fiscal year the
appropriations necessary for the support of Government for the ensuing fiscal year shall not have
been made, the several sums appro-
_______________
62AN ACT TO DECLARE THE PURPOSE OF THE PEOPLE OF THE UNITED STATES AS TO THE FUTURE POLITICAL STATUS OF
THE PEOPLE OF THE PHILIPPINE ISLANDS, AND TO PROVIDE A MORE AUTONOMOUS GOVERNMENT FOR THOSE ISLANDS , Public
Act No. 240, 29 August 1916 [hereinafter Jones Law]
189priated in the last appropriation bills for the objects and purposes therein specified, so far as
the same may be done, shall be deemed to be reappropriated for the several objects and purposes
specified in said last appropriation bill; and until the Legislature shall act in such behalf the
treasurer shall, when so directed by the Governor-General, make the payments necessary for the
purposes aforesaid.
Even the NEP’s procedure was conceptualized long before the 1987 Constitution was drafted:
[The Governor-General] shall submit within ten days of the opening of each regular session of
the Philippine Legislature a budget of receipts and expenditures, which shall be the basis of the
annual appropriation bill. 63
Clearly then, our current constitutional provisions on appropriations were derived from the United States’ own
concept of federal appropriations. In adopting their budgetary methodology, we have also adopted the basic
principles that govern how these appropriations are to be treated.
Principles of Federal Appropriations
The Red Book64 on federal appropriations distinguishes a “lump-sum” appropriation from an earmark, or “line-
item” appropriation. It defines a lump-sum appropriation as “one that is made to cover a number of specific
programs, projects, or items[,]”65 which may be as few as only two programs. In the language of appropriation law,
the essence of a lump-sum appropriation is that it is available for more than
_______________
63 Jones Law, Section 21(b).
64 PRINCIPLES OF FEDERAL APPROPRIATIONS LAW, Vol. I, II, & III. GAO-04-26ISP (2004); GAO-06-382SP
(2006); GAO-08-978SP (2008)
65 GAO-06-382SP A ppropriations Law - Vol. II. pp. 6-5.
190one object,66 which refers to what the money allocated can be used for.
A line-item appropriation, on the other hand, is only for a single specific object described by the law. 67 This
distinction is very precise. It is the singularity of the object for which the allocation is made that makes an
appropriation “line-item,” and its plurality is what makes it “lump-sum.”
Taking the requirements of stated purpose and specificity of amount and applying them to this definition of
lump-sum, we can easily conclude that a lump-sum falls within the parameters of Gonzales. Its purpose, although
referring to more than one object, is stated by the text of the appropriation law. The amount of the appropriation is
a specific amount.
The key factor that makes lump-sum appropriations desirable for the United States Legislature is the
flexibility68 in the use of the appropriation. As Justice Souter stated in Lincoln v. Vigil, a lump-sum appropriation’s
purpose is to give the agency discretion, and allow it to remain flexible in meeting whatever contingencies arise:
The allocation of funds from a lump-sum appropriation is another administrative decision
traditionally regarded as committed to agency discretion. After all, the very point of a lump-sum
appropriation is to give an agency the capacity to adapt to changing circumstances and meet
its statutory responsibilities in what it sees as the most effective or desirable way. (Emphasis 69
supplied)
The use of lump-sum appropriations inherently springs from the reality that the government cannot completely
pre-
_______________
66Id.
67Id.
68Conference of Maritime Manning Agencies v. POEA, 313 Phil. 592; 243 SCRA 666 (1995).
69Lincoln v. Vigil, 508 U.S. 182 (1993).
191dict at the beginning of a fiscal year where funds will be needed in certain instances. Since Congress is the
source of the appropriation law in accordance with the principle of separation of powers, it can craft the law in such
a way as to give the Executive enough fiscal tools to meet the exigencies of the year. Lump-sum appropriations are
one such tool. After all, the different agencies of government are in the best position to determine where the
allocated money might best be spent for their needs:
[A]n agency’s allocation of funds from a lump-sum appropriation requires “a complicated
balancing of a number of factors which are peculiarly within its expertise”: whether its “resources
are best spent” on one program or another; whether it “is likely to succeed” in fulfilling its statutory
mandate; whether a particular program “best fits the agency’s overall policies”; and, “indeed,
whether the agency has enough resources” to fund a program “at all.” 70
Thus, the importance of allowing lump-sum appropriations for budgetary flexibility and good governance has
been validated in other jurisdictions. The evolution of the government’s budgeting from a small amount in past
decades, into what is now a massive undertaking that contains complexities, and involves an exponentially larger
sum than before, suggests that a mixture of lump-sum and line-item budgeting within the same appropriation law
could also be a feasible form of budgeting. At the very least, this Court owes it to Congress to ask it the question
directly, on whether an exclusively line-item budgeting system is indeed feasible. Simply put, there appears, even in
the United States, a necessity for the inclusion of lump-sum appropriations in the budget:
Congress has been making appropriations since the beginning of the Republic. In earlier times
when the fed-
_______________
70Id.
192eral government was much smaller and federal programs were (or at least seemed) much
simpler, very specific line-item appropriations were more common. In recent decades, however, as
the federal budget has grown in both size and complexity, a lump-sum approach has become a
virtual necessity. (Emphasis supplied)
71
The Legislative Branch foresaw that these types of appropriations had to be regulated by law, since “a
fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without
statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose
legally binding restrictions.”72 Without statutory regulation, an untrammelled system of lump-sum appropriations
would breed corruption, or at the very least, make the Executive less circumspect in preparing and proposing the
budget to the Legislature. Hence, Congress promulgated the Administrative Code of 1987, 73 which regulates, in its
provisions on budgeting, lump-sum funds:
35. SectionSpecial Budgets for Lump Sum Appropriations.—Expenditures from lump-sum
appropriations authorized for any purpose or for any department, office or agency in any annual
General Appropriations Act or other Act and from any fund of the National Government, shall be
made in accordance with a special budget to be approved by the President, which shall include but
shall not be limited to the number of each kind of position, the designations, and the annual salary
proposed for which an appropriation is intended. This provision shall be applicable to all revolving
funds, receipts which are automatically made available for expenditure
_______________
71GAO-06-382SP Appropriations Law -Vol. II, p. 6-5.
72Lincoln v. Vigil, 508 U.S. 182 (1993), citing LTV Aerospace Corp., 55 Comp. Gen. 307, 319 (1975).
73Executive Order No. 292, “Administrative Code of 1987,” 25 July 1987.
193for certain specific purposes, aids and donations for carrying out certain activities, or deposits
made to cover the cost of special services to be rendered to private parties. Unless otherwise
expressly provided by law, when any Board, head of department, chief of bureau or office, or any
other official, is authorized to appropriate, allot, distribute or spend any lump-sum appropriation or
special, bond, trust, and other funds, such authority shall be subject to the provisions of this section.
In case of any lump-sum appropriation for salaries and wages of temporary and emergency
laborers and employees, including contractual personnel, provided in any General Appropriation
Act or other Acts, the expenditure of such appropriation shall be limited to the employment of
persons paid by the month, by the day, or by the hour.
x x x
47. Section Administration of Lump Sum Funds.—The Department of Budget shall administer
the Lump-Sum Funds appropriated in the General Appropriations Act, except as otherwise specified
therein, including the issuance of Treasury Warrants covering payments to implementing agencies
or other creditors, as may be authorized by the President. 74
Additionally, the Administrative Code provides that certain items may be lump-sum funds, such as the budget
for coordinating bodies,75 the budget for the pool of Foreign Service officers, 76 and merit increases.77
As a result, this Court should not read from the text of the Constitution and the law, a mandate to craft the
national budget in a purely line-item format. To do so would be equivalent to judicial legislation, because the Court
would read into the law an additional requirement that is not supported by its
_______________
74Id., Book VI, Chapter 5.
75Id., Book VI, Sec. 18.
76Id., Book IV, Sec. 56.
77Id., Book VI, Sec. 61.
194text or spirit of the law, in accordance with its own perceived notion of how a government budget should be
formulated. If we rule out lump-sum budgeting, what happens then to the various provisions of the law, principally
the Administrative Code, that govern lump-sum funds? Is there such a thing as a collateral constitutional attack? Too
many questionable effects will result from a sledgehammer denunciation of lump-sum appropriations. This Court
does not even know how many lump-sum appropriation laws will be affected by such a ruling. Thus, it is important
to emphasize that the fallo only afflicts the 2013 GAA, Article XIV.
Practical consequences of the
unwarranted conclusions on lump-
sums in the Separate Opinion
The baseless conclusion that the lump-sum characteristic, taken alone, results in the unconstitutionality of the
law that carries it, can create additional dangers as illustrated below.
Closer to today’s events, the Executive would have immediately been prevented from using the lump-sum funds
such as Calamity Funds — which under the Federal Appropriations Law is a ‘lump-sum’ — to alleviate the State of
National Calamity78 brought about by super typhoon Yolanda. With the intensity of a signal number four storm, the
first one in 22 years79 and considered the biggest super typhoon in world history,80 Yolanda is one such unforeseen
event for which lump-sum funds are intended. In other words, lump-sum appropriations are currently the form of
preparation Congress saw fit to address these disasters. This is the point recognized
_______________
78Proclamation No. 682, Declaring a State of National Calamity, 11 November 2013.
79 http://www.rappler.com/newsbreak/iq/43058-storm-signal-number-ph-history (Last accessed 18 November 2013)
80 http://edition.cnn.com/2013/11/08/world/asia/philippines-typhoon-destruction/ (Last accessed 18 November 2013)
195precisely in the law journal article cited by Justice Carpio: there is congressional recognition that lump-sum
appropriation allows the President and administrative agencies the executive flexibility to make necessary
adjustments for “unforeseen developments, changing requirements . . . and legislation enacted subsequent to
appropriations.”81 If the problem is a lack of a definition, or a confusion pertaining to the same, then let the Court
define it when the definition itself becomes the legal issue before us.
In addition, the Executive and its line agencies would be deprived of the ability to make use of additional
sources of funds. Suppose that a source of revenue was anticipated by government, the exact amount of which could
not be determined during the budget preparation stage. Suppose also that Congress agreed upon items which had to
be implemented once the funding materializes, and that this funding could support more than one budget item, as is
usually the case with major financing arrangements negotiated with the World Bank, the Asian Development Bank
and other development partners. Can Congress be prevented from deciding to include in the appropriations law a
provision for these items, to be funded by the said additional sources? Should the Court thereby deprive the
Legislature of its discretion to bestow leeway upon the Executive branch, so that it may effectively utilize the funds
realized only later on? Congress, in this case, cannot be reasonably expected to predetermine all sources of revenue,
and neither can it pinpoint the items to be prioritized with a rigid specificity, since it is only within the budget
execution stage that the financing materialized.
It is also respectfully suggested that any discussion on “savings” and the power to augment under the
Constitution is not an issue in this case and that said discussion might in fact demonstrate the unwarranted potential
of over-extending this Court’s reach into matters that are not lis mota. My misgiv-
_______________
8181 Supra note 55 at pp. 338-339.
196ings on discussing “savings,” which is the main issue of a pending matter before us involving the Disbursement
Alloca-
tion Program (DAP),82 impels me to caution the Court: a narrow approach to the PDAF better serves the interest
of the rule of law. Any reformulation or redefinition of the powers under Article VI, Section 25(5) of the
Constitution, i.e., transfer and augmentation of appropriations, is improper in this case, and better ventilated before
us in the course of resolving DAP petitions.
In light of the above, I cast my vote to CONCUR in the ponencia, but with a strong emphasis that this Court has
not thereby made an invalidation of any lump-sum appropriation except in the form that was described in the fallo.
CONCURRING OPINION
CARPIO,J.:
This is again another time in our nation’s history when this Court is called upon to resolve a grave national
crisis. The corruption in the pork barrel system, as starkly documented in the Commission on Audit Report on the
2007-2009 Priority Development Assistance Fund,1 has shown that there is something terribly wrong in the
appropriation and expenditure of public funds. Taxes from the hard-earned wages of working class Filipinos are
brazenly looted in the implementation of the annual appropriation laws. The Filipino people are in despair, groping
for a way to end the pork-barrel system. The present petitions test the limits of our Constitution — whether this
grave national crisis can be resolved within, or outside, the present Constitution.
_______________
8282 Syjuco, et al. v. Secretary Abad, et al., G.R. Nos. 209135-36.

1Special Audits Office Report No. 2012-03, entitled Priority Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP), http://coa.gov.ph/GWSPA/2012/SAO Report2012-03_PDAF.pdf.
197
For resolution in the present cases are the following threshold issues:
Whether Article XLIV of Republic Act No. 10352 or the 2013 General Appropriations Act (GAA), on the
Priority Development Assistance Fund (PDAF), violates the principle of separation of powers; 1.
Whether the lump-sum PDAF negates the President’s constitutional line-item veto power; 2.2
Whether the phrase “for such other purposes as may be hereafter directed by the President” in Section 8 of
Presidential Decree No. 910, on the use of the Malampaya Fund, constitutes an undue delegation of legislative
power; and 3.
Whether the phrase “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 x x x President,” in
Section 12, Title IV of Presidential Decree No. 1869, as amended, on the use of the government’s share in the gross
earnings of the Philippine Amusement and Gaming Corporation (PAGCOR), likewise constitutes an undue
delegation of legislative power. 4.
_______________
2The Court in its Resolution dated 10 October 2013, directed COA Chairperson Pulido Tan to submit
her own memorandum “on matters with respect to which she was directed to expound in her
memorandum, including but not limited to the parameters of line item budgeting.” The Court further
directed the parties “to discuss this same issue in their respective memoranda, including the issue of
whether there is a constitutional duty on the part of Congress to adopt line item budgeting.” The En
Banc voted 12-2-1 to retain in the ponencia of Justice Estela M. Perlas-Bernabe the discussions on the
President’s line-item veto power, line-item appropriations, and lump sum appropriations. (Emphasis
supplied)

198I.
Standing to Sue and Propriety of the Petitions
Petitioners filed the present petitions for certiorari and prohibition 3 in their capacity as taxpayers and Filipino
citizens, challenging the constitutionality of the PDAF provisions in the 2013 GAA and certain provisions in
Presidential Decree Nos. 910 and 1869.
As taxpayers and ordinary citizens, petitioners possess locus standi to bring these suits which indisputably
involve the disbursement of public funds. As we held in Pascual v. Secretary of Public Works,4 taxpayers, such as
petitioners in the present petitions, have “sufficient interest in preventing the illegal expenditures of moneys raised
by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys.”
Likewise, in Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management,5 we declared
that “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.”
The present petitions also raise constitutional issues of transcendental importance to the nation, justifying their
immediate resolution by this Court.6Moreover, the special
_______________
3G.R. No. 208566 is a petition for certiorari and prohibition; G.R. No. 208493 is a petition for prohibition; and G.R.
No. 209251 is a petition for prohibition (this petition prayed for the issuance of a cease-and-desist order).
4110 Phil. 331, 343 (1960), citing 11 Am. Jur. 761.
5G.R. No. 164987, 24 April 2012, 670 SCRA 373, 384.
6Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 and 193036, 7 December 2010, 637 SCRA 78,
151-152; Chavez v. Public Estates Authority, 433 Phil. 506; 384 SCRA 152 (2002); Guingona, Jr. v. Gonzales, G.R. No.
106971, 20 October 1992, 214 SCRA 789.
199civil actions of certiorari and prohibition are proper remedial vehicles to test the constitutionality of
statutes.7
II.
Special Provisions of the 2013 PDAF
Violate the Separation of Powers.
Under our Constitution, government power is divided among the three co-equal branches: Executive,
Legislature, and Judiciary. Well-entrenched in our jurisdiction is the principle of separation of powers, which
ordains that each of the three great branches of government is supreme in the exercise of its functions within its own
constitutionally allocated sphere. 8 Lawmaking belongs to Congress, implementing the laws to the Executive, and
settling legal disputes to the Judiciary.9 Any encroachment on the functions of a co-equal
_______________
7Magallona v. Ermita, G.R. No. 187167, 16 August 2011, 655 SCRA 476.
8Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No. 181704, 6 December 2011, 661 SCRA 589.
9The 1987 Constitution provides:
Section 1, Article VI:
The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives, x x x.
Section 1, Article VII:
The executive power shall be vested in the President of the Philippines.
Section 1, Article VIII:
The judicial power shall be vested in one Supreme Court and in such lower courts as maybe 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
200branch by the other branches violates the principle of separation of powers, and is thus unconstitutional.
In Bengzon v. Drilon,10 this Court declared:
It cannot be overstressed that in a constitutional government such as ours, the rule of law must
prevail. The Constitution is the basic and paramount law to which all other laws must conform and
to which all persons including the highest official of this land must defer. From this cardinal
postulate, it follows that the three branches of government must discharge their respective functions
within the limits of authority conferred by the Constitution. Under the principle of separation of
powers, neither Congress, the President nor the Judiciary may encroach on fields allocated to the
other branches of government. The legislature is generally limited to the enactment of laws, the
executive to the enforcement of laws and the judiciary to their interpretation and application to cases
and controversies.
In the present petitions, the Court is faced with issues of paramount importance as these issues involve the core
powers of the Executive and the Legislature. Specifically, the petitions raise questions on the Executive’s
constitutional power to implement the laws and the Legislature’s constitutional power to appropriate. The latter
necessarily involves the President’s constitutional power to veto line-items in appropriation laws. 11
Under the Constitution, the President submits every year a proposed national expenditures program (NEP) to
Congress. The NEP serves as basis for the annual general appropriations act (GAA) to be enacted by Congress. This
is provided in the Constitution, as follows:
_______________
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
10G.R. No. 103524, 15 April 1992, 208 SCRA 133, 142.
11Section 27(2), Article VI of the 1987 Constitution.
201
The President shall submit to the Congress within thirty days from the opening of every regular
session, as the basis of the general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures. 12
While the President proposes the expenditures program to Congress, it is Congress that exercises the power to
appropriate and enact the GAA. The Constitution states that “all appropriation x x x shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with amendments.” 13 The Constitution likewise
mandates, “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” 14
The Administrative Code of 1987 defines “appropriation” as “an authorization made by law or other legislative
enactment directing payment out of government funds under specified conditions or for specified purposes.” 15Thus,
the power to appropriate is the exclusive legislative power to direct by law the payment of government funds under
specified conditions or specified purposes. The appropriation must state the specific purpose of the payment of
government funds.
The appropriation must also necessarily state the specific amount since it is a directive to pay out government
funds. Once the appropriations bill is signed into law, its implementation becomes the exclusive function of the
President. The Constitution states, “The executive power shall be vested in the President.” The Constitution has
vested the executive power solely in the Presidentand to no one else in government. 16 The Constitution also
mandates that the President
_______________
14Section 29(1), Article VI, 1987 Constitution.
15Section 2(1), Chapter 1, Book VI of the Administrative Code of 1987.
16SANLAKAS v. Reyes, 466 Phil. 482; 421 SCRA 656 (2004).
202“shall ensure that the laws be faithfully executed.” 17 The President cannot refuse to execute the law not only
because he is constitutionally mandated to ensure its execution, but also because he has taken a constitutionally
prescribed solemn oath to “faithfully and conscientiously” execute the law.18
To exercise the executive power effectively, the President must necessarily control the entire Executive branch.
Thus, the Constitution provides, “The President shall have control of all the executive departments, bureaus, and
offices.”19 The Constitution does not exempt any executive office from the President’s control. 20
The GAA is a law. The implementation of the GAA belongs exclusively to the President, and cannot be
exercised by Congress. The President cannot share with the Legislature, its committees or members the power to
implement the GAA. The Legislature, its committees or members cannot exercise functions vested in the President
by the Constitution; otherwise, there will be a violation of the separation of powers.
The Legislature, its committees or members cannot also exercise any veto power over actions or decisions of
executive departments, bureaus or offices because this will divest the President of control over the executive
agencies. Control means the power to affirm, modify or reverse, and even to pre-empt, the actions or decisions of
executive agencies or their officials. 21 Any provision of law requiring the concurrence of the Legislature, its
committees or members before an executive agency can exercise its functions violates the President’s control over
executive agencies, and is thus unconstitutional.
_______________
20Rufino v. Endriga, 528 Phil. 473; 496 SCRA 13 (2006).
21 Mondano v. Silvosa, 97 Phil. 143, 148 (1955); Echeche v. Court of Appeals, G.R. No. 89865, 27 June 1991, 198
SCRA 577, 584.
203In LAMP,22 this Court declared:

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the
requirement that appropriation bills originate exclusively in the House of Representatives with the
option of the Senate to propose or concur with the amendments. While the budgetary process
commences from the proposal submitted by the President to Congress, it is the latter which
concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based
on its own judgment, wisdom and purposes. Like any other piece of legislation, the appropriation
act may then be susceptible to objection from the branch tasked to implement it, by way of a
Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch
which deals with the operational aspects of the cycle including the allocation and release of funds
earmarked for various projects. Simply put, from the regulation of fund releases, the implementation
of payment schedules and up to the actual spending of the funds specified in the law, the Executive
takes the wheel. x x x.
The 2013 PDAF, or Article XLIV of Republic Act No. 10352, provides in part as follows:
PRIORITY DEVELOPMENT ASSISTANCE FUND XLIV.
For fund requirements of priority development programs and projects, as indicated hereunder ....
.........................................…………. P24,790,000,000
New Appropriations, by Purpose
Current Operating Expenditures
Maintenance and
other Operating
_______________
22Supra note 5, at pp. 389-390.

204
Personal Services Expenses Capital Outlay Total
A. PURPOSE(S) 1. P7,657,000,000 P17,133,000,000 P24,790,000,000
Support for Priority
Programs and Projects
TOTAL NEW P7,657,000,000 P17,133,000,000 P24,790,000,000
APPROPRIATIONS
1.Use of Fund.The amount appropriated herein shall be used to fund the following priority
programs and projects to be implemented by the corresponding agencies:
Program/Proje Implementing Agency List of

ct Requireme
nts
A.
Programs/Proj
ects
Chargeable
against Soft
Allocation
1. Education
Scholarship TESDA/CHED/NCIP/ x x x
DAP LGUs SUCs
Assistance to x x x
Students x x x DepEd
2. Health
x x x
Medical LGUs x x x
Mission
including
provision of
medicines and
immunization
x x x
3. Livelihood TESDA/LGUs x x x
x x x
Specialty
training/em-
ployment
program
(community
based training
program)
including
acquisition of
training
supplies and
equipment
205
x x x
4.Social Services
x x x
Assistance to indigent LGUs x x x
individuals/families
x x x
5.Peace and Order and Security
x x x
Surveillance and LGUs/PNP x x x
Communication equipment
x x x
6.Arts and Culture
Preservation/Conservation, NHCP x x x
including publication of (formerly
historical materials NHI)/LGUs
Public Infrastructure
Projects 7.
Construction/Rehabilitation/
Repair/Improvement of the
following:
Local roads and bridges LGUs x x x
Public Markets/Multi-Purpose
Buildings/Multi-Purpose
Pavements, Pathways and
Footbridges
x x x
INFRASTRUCTURE PROJECTS CHARGEABLE
B.AGAINST HARD ALLOCATION
Construction/Rehabilitation/
Renovation of the following:
Roads and bridges DPWH x x x
x x x
Flood Control DPWH x x x
x x x
PROVIDED, That this Fund shall not be used for the payment of Personal Services
expenditures: PROVIDED, FURTHER, That all procurement shall comply
206with the provisions of R.A. No. 9184 and its Revised Implementing Rules and Regulations:
PROVIDED, FINALLY, That for infrastructure projects, LGUs may only be identified as
implementing agencies if they have the technical capability to implement the same.
2.Project Identification. Identification of projects and/or designation of beneficiaries shall
conform to the priority list, standard or design prepared by each implementing agency: PROVIDED,
That preference shall be given to projects located in the 4th to 6th class municipalities or indigents
identified under the MHTS-PR by the DSWD. For this purpose, the implementing agency shall
submit to Congress said priority list, standard or design within ninety (90) days from effectivity of
this Act.
All programs/projects, except for assistance to indigent patients and scholarships, identified by a
member of the House of Representatives outside of his/her legislative district shall have the written
concurrence of the member of the House of Representatives of the recipient or beneficiary
legislative district, endorsed by the Speaker of the House of Representatives.
3.Legislator’s Allocation. The Total amount of projects to be identified by legislators shall
be as follows:
For Congressional District or Party-List Representative: Thirty Million Pesos (P30,000,000) for
soft programs and projects listed under Item A and Forty Million Pesos (P40,000,000) for
infrastructure projects listed under Item B, the purposes of which are in the project menu of Special
Provision No. 1; and a.
For Senators: One Hundred Million Pesos (P100,000,000) for soft programs and projects listed
under Item A and One Hundred Million Pesos (P100,000,000) for infrastructure projects listed
under Item B, the purposes of which are in the project menu of Special Provision No. 1. b.
Subject to the approved fiscal program for the year and applicable Special Provisions on the use
and release of fund, only fifty percent (50%) of the foregoing amounts may be released in the first
semester and the remaining
207fifty percent (50%) may be released in the second semester.
4. Realignment of Funds. Realignment under this Fund may only be allowed once. The
Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and Trade and
Industry are also authorized to approve realignment from one project/scope to another within the
allotment received from this Fund, subject to the following: (i) for infrastructure projects,
realignment is within the same implementing unit and same project category as the original project;
(ii) allotment released has not yet been obligated for the original project/scope of work; and (iii)
request is with the concurrence of the legislator concerned. The DBM must be informed in writing
of any realignment within five (5) calendar days from approval thereof: PROVIDED, That any
realignment under this Fund shall be limited within the same classification of soft or hard
programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of
realignments, modifications and revisions of projects to be implemented by LGUs, the LGU
concerned shall certify that the cash has not yet been disbursed and the funds have been deposited
back to the BTr.
Any realignment, modification and revision of the project identification shall be submitted to the
House Committee on Appropriations and the Senate Committee on Finance, for favorable
endorsement to the DBM or the implementing agency, as the case may be.
5. Release of Funds. All request for release of funds shall be supported by the documents
prescribed under Special Provision No. 1 and favorably endorsed by the House Committee on
Appropriations and the Senate Committee on Finance, as the case may be. Funds shall be released
to the implementing agencies subject to the conditions under Special Provision No. 1 and the limits
prescribed under Special Provision No. 3.
xxxx
208Special Provision Nos. 2, 3, 4, and 5, Article XLIV of the 2013 GAA violate the principle of separation of
powers enshrined in the Constitution. These provisions allow congressional committees and legislators not only to
exercise in part the Executive’s exclusive power to implement the appropriations law, they also grant congressional
committees and legislators a veto power over the Executive’s exclusive power to implement the appropriations law.
Special Provision A. Nos. 2 and 3 on identification of projects
While Special Provision No. 2 of the 2013 PDAF provides that projects shall be taken from a priority list
provided by the Executive, legislators actually identify the projects to be financed under the PDAF. This is clear
from Special Provision No. 3 which states that “the total amount of projects to be identified by the legislators shall
be as follows: x x x.” This identification of projects by legislators is mandatory on the Executive. This is clear from
the second paragraph of Special Provision No. 4 which requires the “favorable endorsement” of the House
Committee on Appropriations or the Senate Committee on Finance (Congressional Committees) in case of “any
x x x revision and modification” of the project identified by the legislator. This requirement of “favorable
endorsement” constitutes a veto power by either of the Congressional Committees on the exclusive power of the
Executive to implement the law. This requirement also encroaches on the President’s control over executive
agencies.
It is the individual House member or individual Senator who identifies the project to be funded and implemented
under the PDAF. This identification is made after the enactment into law of the GAA. Unless the individual
legislator identifies the project, the Executive cannot implement the project. Any revision or modification of the
project by the Executive requires the “favorable endorsement” of either of the Congressional Committees. The
Executive does not, and cannot, iden-
209tify the project to be funded and implemented. Neither can the Executive, on its own, modify or revise the
project identified by the legislator. This divests the President of control over the implementing agencies with respect
to the PDAF. Clearly, the identification of projects by legislators under the 2013 PDAF, being mandatory on the
Executive, is unconstitutional.
The Constitution states, “The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives.” 23 The legislative power can be exercised only by Congress, not
by an individual legislator, not by a congressional committee, and not even by either the House of Representatives
or the Senate.24 Once the GAA becomes law, only Congress itself, and not its committees or members, can add,
subtract, complete or modify the law by passing an amendatory law. The Congressional Committees or individual
legislators, on their own, cannot exercise legislative power.
Respondents argue that this Court already upheld the authority of individual legislators to identify projects to be
funded by the Countrywide Development Fund (CDF), later known as PDAF. In particular, respondents cite the
decisions of this Court in Philippine Constitution Association (PHILCONSA) v. Enriquez 25 and in Lawyers Against
Monopoly and Poverty (LAMP) v. Secretary of Budget and Management.26
PHILCONSA and LAMP do not apply to the present cases because the mandatory identification of projects by
individual
_______________
23Section 1, Article VI, 1987 Constitution. This provision further states “except to the extent reserved to the people by
the provision on initiative and referendum.”
24See Abakada Guro Party List v. Purisima, 584 Phil. 246, 281; 562 SCRA 251, 290 (2008), citing Metropolitan
Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
25G.R. No. 113105, 19 August 1994, 235 SCRA 506.
26Supra note 5.
210legislators in the 2013 GAA is not present in the 1994 and 2004 GAAs. A comparison of Article XLI of the
1994 GAA, Article XLVII of the 2004 GAA, and Article XLIV of the 2013 GAA shows that only the 2013 GAA
provides for the mandatory identification of projects by legislators.
In PHILCONSA, Republic Act No. 7663, or the 1994 GAA, authorized members of Congress to identify projects
in the CDF allotted to them. Article XLI of the 1994 GAA provides:
Special Provisions
Use and Release of Funds. The amount herein appropriated shall be used for infrastructure,
purchase of ambulances and computers and other priority projects and activities, and credit facilities
to qualified beneficiaries as proposed and identified by officials concerned according to the
following allocations: Representatives, P12,500,000 each; Senators, P18,000,000 each; Vice-
President, P20,000,000; PROVIDED, That, the said credit facilities shall be constituted as a
revolving fund to be administered by a government financial institution (GFI) as a trust fund for
lending operations. Prior years releases to local government units and national government agencies
for this purpose shall be turned over to the government financial institution which shall be the sole
administrator of credit facilities released from this fund. 1.
The fund shall be automatically released quarterly by way of Advice of Allotments and Notice
of Cash Allocation directly to the assigned implementing agency not later than five (5) days after
the beginning of each quarter upon submission of the list of projects and activities by the officials
concerned.
Submission of Quarterly Reports. The Department of Budget and Management shall submit
within thirty (30) days after the end of each quarter a report to the Senate Committee on Finance
and the House Committee on Appropriations on the releases made from this Fund. The report shall
include the listing of the projects, locations, implementing agencies and the endorsing officials. 2.
211It is clear from the CDF provisions of the 1994 GAA that the authority vested in legislators was limited to
the mere identification of projects. There was nothing in the 1994 GAA that made identification of projects by
legislators mandatory on the President. The President could change the projects identified by legislators without
the favorable endorsement of any congressional committee, and even without the concurrence of the
legislators who identified the projects. The Court ruled in PHILCONSA:
The authority given to the members of Congress is only to propose and identify projects to be
implemented by the President. Under Article XLI of the GAA of 1994, the President must perforce
examine whether the proposals submitted by members of Congress fall within the specific items of
expenditures for which the Fund was set up, and if qualified, he next determines whether they are in
line with other projects planned for the locality. Thereafter, if the proposed projects qualify for
funding under the Fund, it is the President who shall implement them. In short, the proposals and
identifications made by members of Congress are merely recommendatory. (Emphasis 27
supplied)
LAMP is likewise not applicable to the cases before us. Article XLVII of the 2004 GAA, which was the subject
matter in LAMP, only states the following on the PDAF:
Special Provision
Use and Release of the Fund. The amount herein appropriated shall be used to fund priority
programs and projects or to fund the required counterpart for foreign-assisted programs and
projects: PROVIDED, That such amount shall be released directly to the implementing agency or
Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized 1.
_______________
212herein may be realigned to any expense class, if deemed necessary: PROVIDED

FURTHERMORE, That a maximum of ten percent (10%) of the authorized allocations by district
may be used for procurement of rice and other basic commodities which shall be purchased from
the National Food Authority.
The PDAF provision in the 2004 GAA does not even state that legislators may propose or identify projects
to be funded by the PDAF. The 2004 PDAF provision is completely silent on the role of legislators or
congressional committees in the implementation of the 2004 PDAF. Indeed, the petitioner in LAMP even argued
that the Special Provision of the 2004 GAA “does not empower individual members of Congress to propose, select
and identify programs and projects to be funded out of PDAF,” 28 and thus “the pork barrel has become legally
defunct under the present state of GAA 2004.”29 The Court ruled in LAMP that there was no convincing proof that
there were direct releases of funds to members of Congress. The Court also reiterated in LAMP that members of
Congress may propose projects, which is merely recommendatory, and thus constitutional under case law.
Thus, PHILCONSA and LAMP are not applicable to the present cases before us.
Special Provision No. 4 on realignment of funds B.
The first paragraph of Special Provision No. 4 clearly states that the Executive’s realignment of funds under
the PDAF is conditioned, among others, on the “concurrence of the legislator concerned.” Such concurrence
allows the legislator not only to share with the Executive the implementation of the GAA, but also to veto any
realignment of funds
_______________
28Supra note 5, at p. 379.
29Id.
213initiated by the Executive. Thus, the President cannot exercise his constitutional power to realign
savings30without the “concurrence” of legislators. This violates the separation of powers, and is thus
unconstitutional.
The second paragraph of Special Provision No. 4 states that “any realignment” of funds shall have the
“favorable endorsement” of either of the Congressional Committees. The word “endorse” means to “declare one’s
public approval or support.”31 The word “favorable” stresses that there must be an affirmative action. Thus, the
phrase “favorable endorsement,” as used in Special Provision No. 4 of the PDAF, means categorical approval,
agreement, consent, or concurrence by the Congressional Committees. This means that the President cannot realign
savings in the PDAF, which is an appropriation for the Executive branch, without the concurrence of either of the
Congressional Committees, contrary to the constitutional provision that it is the President who can realign savings in
the Executive branch. This violates the separation of powers, and is thus unconstitutional.
The Office of the Solicitor General (OSG) argues that Special Provision No. 4 involves not a realignment of
funds but a realignment of projects, despite the clear wording of the heading in Special Provision No. 4 stating
“Realignment of Funds.” The OSG contends that realignment “happens when the project is no longer feasible such
as when projects initially proposed by the legislator have already been accomplished by the national government or
the LGU, or when projects as originally proposed cannot be accomplished due to certain contingencies.” None of the
situations cited by the OSG is found in Special Provision No. 4. Even then, the situations cited by the OSG will
actually result in the realignment of funds. If the project identified by the legislator has already
_______________
31http://www.oxforddictionaries.com/us/definition/american_english/endorse(accessed 7 November 2013).
214been undertaken and completed with the use of other funds in the GAA, or if the identified project is no longer
feasible due to contingencies, the funds allocated to the legislator under the PDAF will have to be logically realigned
to another project to be identified by the same legislator.
Moreover, Special Provision No. 4 provides, as one of the conditions for the realignment, that the “allotment
released has not yet been obligated for the original project/scope of work.” Special Provision No. 4 also states that
“in case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU concerned
shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr (Bureau
of Treasury).” Clearly, the realignment in Special Provision No. 4, as stated in its heading “Realignment of Funds”,
refers to realignment of funds because the realignment speaks of “allotment” and “cash.” In any event, even if we
assume that Special Provision No. 4 refers to realignment of projects and not realignment of funds, still the
realignment of projects within the menu of projects authorized in the PDAF provision of the GAA is an Executive
function. The “concurrence of the legislator concerned” and the “favorable endorsement” of either of the
Congressional Committees to the realignment of projects will still violate the separation of powers.
Under Section 25(5), Article VI of the Constitution, the power to realign is lodged in the President for the
Executive branch, the Speaker for the House of Representatives, the Senate President for the Senate, the Chief
Justice for the Judiciary, and the Heads of the Constitutional Commissions for their respective constitutional offices.
This constitutional provision reads:
(5)No law shall be passed authorizing any transfer of appropriations; however, the President,
the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and
215the heads of Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other items of their
respective appropriations. (Boldfacing and italicization supplied)
The Constitution expressly states that what can be realigned are “savings” from an item in the GAA, and such
savings can only be used to augment another existing “item” in the “respective appropriations” of the Executive,
Legislature, Judiciary, and the Constitutional Commissions in the same GAA. The term “funds” in Special
Provision No. 4 is not the same as “savings.” The term “funds” means appropriated funds, whether savings or
not. The term “savings” is much narrower, and must strictly qualify as such under Section 53 of the General
Provisions of the 2013 GAA, which is a verbatim reproduction of the definition of “savings” in previous GAAs.
Section 53 of the 2013 GAA defines “savings” as follows:
53. Sec.Meaning of Savings and Augmentation.—Savings refer to portions or balances of
any programmed appropriation in this Act free from any obligation or encumbrance which are: (i)
still available after the completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized; (ii) from appropriation balances arising from
unpaid compensation and related costs pertaining to vacant positions and leaves of absence without
pay; and (iii) from appropriation balances realized from the implementation of measures resulting in
improved systems and efficiencies and thus enabled agencies to meet and deliver the required or
planned targets, programs and services approved in this Act at a lesser cost. (Emphasis supplied)
Indisputably, only “savings” can be realigned. Unless there are savings, there can be no realignment.216
Funds, or “appropriations” as used in the first clause of Section 25(5) of Article VI, cannot be transferred from
one branch to another branch or to a Constitutional Commission, or even within the same branch or Constitutional
Commission. Thus, funds or appropriations for the Office of the President cannot be transferred to the Commission
on Elections. Likewise, funds or appropriations for one department of the Executive branch cannot be transferred to
another department of the Executive branch. The transfer of funds or appropriations is absolutely
prohibited, unless the funds qualify as “savings,” in which case the savings can be realigned to an existing item of
appropriation but only within the same branch or Constitutional Commission.
Special Provision No. 4 allows realignment of funds, not savings. That only savings, and not funds, can be
realigned has already been settled in Demetria v. Alba,32and again in Sanchez v. Commission on Audit.33 In Demetria,
we distinguished between transfer of funds and transfer of savings for the purpose of augmenting an existing item in
the GAA, the former being unconstitutional and the latter constitutional. Thus, in Demetria, we struck down as
unconstitutional paragraph 1, Section 44 of Presidential Decree No. 1177, 34 for authorizing the President to transfer
funds as distinguished from savings. In Demetria, we ruled:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly overextends the privilege granted under said
Section 16(5) [of Article VIII of the 1973 Constitution]. It empowers the President to
indiscriminately transfer funds from one department, bureau, office or agency of the Executive
Department to any program, project or activity of any
_______________
32232 Phil. 222; 148 SCRA 208 (1987).
33G.R. No. 127545, 23 April 2008, 552 SCRA 471.
34Entitled Revising the Budget Process in order to Institutionalize the Budgetary Innovations of the New Society, or “Budget
Reform Decree of 1977.”

217department, bureau or office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are actually savings
in the item from which the same are to be taken, or whether or not the transfer is for the
purpose of augmenting the item to which said transfer is to be made. It does not only
completely disregard the standards set in the fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such
constitutional infirmities render the provision in question null and void. (Emphasis supplied)
35
In Sanchez, we emphasized that “[a]ctual savings is a sine qua non to a valid transfer of funds.”36 We stated
the two essential requisites in order that a realignment of savings may be legally effected: “First, there must be
savings in the programmed appropriation of the transferring agency. Second, there must be an existing item, project
or activity with an appropriation in the receiving agency to which the savings will be transferred.” 37 The essential
requisites for realignment of savings were discarded in Special Provision No. 4, which allows realignment of
“funds,” and not “savings” as defined in Section 53 of the 2013 GAA. As in Demetria and Sanchez, the realignment
of “funds” in Special Provision No. 4 is unconstitutional.
The President’s constitutional power to realign savings cannot be delegated to the Department Secretaries but
must be exercised by the President himself. Under Special Provision No. 4, the President’s power to realign is
delegated to Department Secretaries, which violates the Constitutional provision that it is the President who can
realign savings. In PHILCONSA, we ruled that the power to realign cannot be
_______________
35Supra note 32, at pp. 229-230; pp. 214-215.
218delegated to the Chief of Staff of the Armed Forces of the Philippines because this power “can be
exercised only by the President pursuant to a specific law.” 38 In Sanchez, we rejected the transfer of funds because it
was exercised by the Deputy Executive Secretary. We ruled in Sanchez that “[e]ven if the DILG Secretary had
corroborated the initiative of the Deputy Executive Secretary, it does not even appear that the matter was
authorized by the President.”39 Clearly, the power to realign savings must be exercised by the President himself.
National Budget Circular No. 547, entitled “Guidelines on the Release of Funds Chargeable Against the Priority
Development Assistance Fund for FY 2013” dated 18 January 2013, reiterates Special Provision Nos. 2, 3 and 4 of
the 2013 PDAF. The DBM Circular states that “[t]he PDAF shall be used to fund priority programs and projects to
be undertaken by implementing agencies identified by the Legislators from the Project Menu of Fund hereby
attached as Annex A.”
The DBM Circular requires that “requests for realignment x x x be supported with x x x [a] written request from
the proponent legislator; in case the requesting party is the implementing agency, the concurrence of the
proponent legislator shall be obtained.” 40 The DBM Circular also requires that “[r]equests for realignment,
modification and revision of projects x x x be duly endorsed by the following: 4.4.1 For the Senate, the Senate
President and the Chairman of the Committee on Finance and 4.4.2 For the House of Representatives, the Speaker of
the House of Representatives and the Chairman of the Committee on Appropriations.” 41 The DBM Circular’s
additional requirement that the endorsement of the House Speaker and the Senate Presi-
_______________
40Guideline 4.3.
41Guideline 4.4.
219dent should also be submitted administratively enlarges further the Legislature’s encroachment on Executive

functions, including the President’s control over implementing agencies, in violation of the separation of powers.
These DBM guidelines, issued to implement the PDAF provisions of the 2013 GAA, sufficiently establish that
(1) individual legislators actually identify the projects to be funded; (2) the consent of individual legislators is
required for the realignment of funds; and (3) the Congressional Committees, the House Speaker and the Senate
President control the realignment of funds, as well as the modification and revision of projects. In other words,
National Budget Circular No. 547 establishes administratively the necessary and indispensable participation of
the individual legislators and the Congressional Committees, as well as the House Speaker and the Senate President,
in the implementation of the 2013 GAA in violation of the separation of powers.
Special Provision No. 5 on the release of funds C.
Under Special Provision No. 5, all requests for release of funds must be (1) supported by documents prescribed
in Special Provision No. 1; and (2) “favorably endorsed” by either of the Congressional Committees. The use of
the word “shall” in Special Provision No. 5 clearly makes it mandatory to comply with the two requisites for the
release of funds. The absence of the favorable endorsement from either of the Congressional Committees will result
in the non-release of funds. In effect, the Congressional Committees have a veto power over the Executive’s
implementation of the PDAF.
DBM National Budget Circular No. 547 reiterates Special Provision No. 5 of the 2013 PDAF on the release of
funds. This DBM Circular requires “all requests for issuance of allotment x x x be supported with the x x x[w]ritten
endorsements by the following: x x x In case of the Senate, the Senate President and the Chairman of the
Committee on Finance; and x x x In case of the House of Representatives,
220the Speaker of the House of Representatives and the Chairman of the Committee on Appropriations.” 42 The DBM
Circular again administratively enlarges further the Legislature’s encroachment on Executive functions, including
the President’s control over implementing agencies, by requiring the “written endorsement” of the House Speaker
or Senate President to the release of funds, in addition to the “favorable endorsement” of either of the Congressional
Committees.
In her Comment43 as amicus curiae, Chairperson Maria Gracia M. Pulido Tan of the Commission on Audit
(COA) correctly observes:
As for the 2011-2013 GAAs, the requirement of a favorable endorsement by the House
Committee on Appropriations and the Senate Committee on Finance for (a) release of Funds and (b)
realignment, modification and revision of the project identification effectively amounts to a
prohibited post-enactment measure, a legislative veto, under the terms of Abakada. It is not a matter
of speculation but one of logic, that by a mere refusal to endorse, he can render the appropriation
nugatory, impound the Funds, and prevent the Executive from carrying out its functions or
otherwise tie its (the Executive’s) hands to a project that may prove to be not advantageous to the
government. The practical effect of this requirement, therefore, is to shift to the legislator the power
to spend. (Emphasis in the original)
The power to release public funds authorized to be paid under the GAA is an Executive function. However,
under Special Provision No. 5, prior approval of either of the Congressional Committees is required for the release
of funds. Thus, the Congressional Committees effectively control the release of funds to implement projects
identified by legislators. Unless the funds are released, the projects cannot be
_______________
42Guidelines 3.1, 3.1.2, 3.1.2.1 and 3.1.2.2.
43Dated 17 October 2013.
221implemented. Without doubt, the Congressional Committees and legislators are exercising Executive functions
in violation of the separation of powers. The Congressional Committees and the legislators are also divesting the
President of control over the implementing agencies with respect to the PDAF.
A law that invests Executive functions on the Legislature, its committees or members is unconstitutional for
violation of the separation of powers. In the 1928 case of Springer v. Government of the Philippine Islands,44 the
U.S. Supreme Court held:
Legislative power, as distinguished from executive power, is the authority to make
laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.
The latter are executive functions. x x x.
Not having the power of appointment, unless expressly granted or incidental to its powers, the
Legislature cannot ingraft executive duties upon a legislative office, since that would be to usurp the
power of appointment by indirection, though the case might be different if the additional duties
were devolved upon an appointee of the executive. Here the members of the Legislature who
constitute a majority of the ‘board’ and ‘committee,’ respectively, are not charged with the
performance of any legislative functions or with the doing of anything which is in aid of the
performance of any such functions by the Legislature. Putting aside for the moment the question
whether the duties devolved upon these members are vested by the Organic Act in the Governor
General, it is clear that they are not legislative in character, and still more clear that they are not
judicial. The fact that they do not fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one of the three among which
the powers of government are divided. (Boldfacing and italicization supplied; citations omitted)
_______________
44277 U.S. 189, 202-203 (1928).
222What happens to the law after its enactment becomes the domain of the Executive and the Judiciary. 45 The
Legislature or its committees are limited to investigation in aid of legislation or oversight as to the implementation
of the law. Certainly, the Legislature, its committees or members cannot implement the law, whether partly or fully.
Neither can the Legislature, its committees or members interpret, expand, restrict, amend or repeal the law except
through a new legislation. The Legislature or its committees cannot even reserve the power to approve the
implementing rules of the law.46 Any such post-enactment intervention by the Legislature, its committees or
members other than through legislation is an encroachment on Executive power in violation of the separation of
powers.
III.
Lump Sum PDAF Negates the President’s
Exercise of the Line-Item Veto Power.
Section 27, Article VI of the Constitution provides for the presentment clause and the President’s veto power:
(1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President.
If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by
which it shall likewise be reconsidered, and if approved 27. Section
_______________
45Carpio, J., Separate Concurring Opinion in Abakada Guro Party List v. Purisima, 584 Phil. 246, 293-314; 562 SCRA
251, 312 (2008).
46Id.; Macalintal v. Commission on Elections, 453 Phil. 586; 405 SCRA 614 (2003).
223by two-thirds of all the Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the names of the Members voting for
or against shall be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it.
(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. (Emphasis supplied)
In Gonzales v. Macaraig, Jr.,47 the Court explained the President’s veto power, thus:
Paragraph (1) refers to the general veto power of the President and if exercised would result in
the veto of the entire bill, as a general rule. Paragraph (2) is what is referred to as the item-veto
power or the line-veto power. It allows the exercise of the veto over a particular item or items in an
appropriation, revenue or tariff bill. As specified, the President may not veto less than all of an item
of an Appropriations Bill. In other words, the power given the executive to disapprove any item or
items in an Appropriations Bill does not grant the authority to veto a part of an item and to approve
the remaining portion of the same item.
In Gonzales, the Court defined the term “item” as used in appropriation laws as “an indivisible sum of money
dedicated to a stated purpose.”48 The amount in an item is “indivisible” because the amount cannot be divided for
any
_______________
47G.R. No. 87636, 19 November 1990, 191 SCRA 452, 464.
48This definition was taken by the Court in Gonzales v. Macaraig, Jr.from American jurisprudence, in
particular Commonwealth v. Dodson, 11 S.E., 2d 120, 176 Va. 281.
224purpose other than the specific purpose stated in the item. The item must be for a specific purpose so that the
President can determine whether the specific purpose is wasteful or not. This is the “item” that can be the subject of
the President’s line-item veto power. Any other kind of item will circumvent or frustrate the President’s line-item
veto power in violation of the Constitution.
In contrast, a lump-sum appropriation is a single but divisible sum of money which is the source to fund several
purposes in the same appropriation. For example, the 2013 PDAF provision appropriates a single amount — P24.79
billion — to be divided to fund several purposes of appropriation, like scholarships, roads, bridges, school
buildings, medicines, livelihood training and equipment, police surveillance and communication equipment, flood
control, school fences and stages, and a variety of other purposes.
In her Comment, COA Chairperson Tan stated:
For the most part, appropriations are itemized in the GAA, following line-item budgeting, which
provides the line by line allocation of inputs defined as the amount of resources used to produce
outputs. The resources are usually expressed in money.
The PDAF, on the other hand, is appropriated as a lump-sum amount, and is broken down
by allotment class only. While the projects and programs to be funded and the corresponding
agencies are specified, there is no allocation of specific amounts for each project or program, or
per agency where there are multiple IAs (implementing agencies) for the same class of projects.
(Emphasis supplied)
In place of lump-sum appropriations, COA Chairperson Tan recommends a “line by line budget or amount per
proposed program, activity, or project, and per implementing agency.”225
For the President to exercise his constitutional power to veto a particular item of appropriation, the GAA must
provide line-item, instead of lump-sum, appropriations. This means Congress has the constitutional duty to present
to the President a GAA containing items, instead of lump-sums, stating in detail the specific purpose for each
amount of appropriation, precisely to enable the President to exercise his line-item veto power. Otherwise, the
President’s line-item veto power is negated by Congress in violation of the Constitution.
The President’s line-item veto in appropriation laws 49 is intended to eliminate “wasteful parochial
spending,”50primarily the pork-barrel. Historically, the pork-barrel meant “appropriation yielding rich patronage
benefits.”51In the Philippines, the pork-barrel has degenerated further as shown in the COA Audit Report on the
2007-2009 PDAF. The pork-barrel is mischievously included in lump-sum appropriations that fund much needed
projects. The President is faced with the difficult decision of either vetoing the lump-sum appropriation that includes
beneficial programs or approving the same appropriation that includes the wasteful pork-barrel. 52 To banish
_______________
49Under Section 27(2), Article VI of the 1987 Constitution, the President’s line-item veto power extends to revenue
and tariff bills.
50Bernard L. Mcnamee, Executive Veto: The Power of the Pen in Virginia, 9 Regent U.L. Rev. 9, Fall 1997.
51http://www.merriam-webster.com/dictionary/pork%20barrel(accessed 7 November 2013); See footnote no. 13 in
Denise C. Twomey, The Constitutionality of a Line-Item Veto: A Comparison with Other Exercises of Executive
Discretion Not to Spend, 19 Golden Gate U. L. Rev. (1989).
http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1454&context=ggulrev (accessed 7 November 2013).
52See Catherine M. Lee, The Constitutionality of the Line Item Veto Act of 1996: Three Potential Sources for
Presidential Line Item Veto Power, Hastings Constitutional Law Quarterly, V.25:119, p. 123, Fall
1997, http://www.hastingsconlawquarterly.org/archives/
V25/I1/Lee.pdf (accessed 7 November 2013).
226the evil of the pork-barrel, the Constitution vests the President with the line-item veto power, which for its
necessary and proper exercise requires the President to propose, and Congress to enact, only line-item
appropriations.
The President should not frustrate his own constitutional line-item veto power by proposing to Congress lump-
sum expenditures in the NEP. Congress should not also negate the President’s constitutional line-item veto power by
enacting lump-sum appropriations in the GAA. When the President submits lump-sum expenditures in the NEP, and
Congress enacts lump-sum appropriations in the GAA, both in effect connive to violate the Constitution. This
wreaks havoc on the check-and-balance system between the Executive and Legislature with respect to
appropriations. While Congress has the power to appropriate, that power should always be subject to the President’s
line-item veto power. If the President exercises his line-item veto power unreasonably, Congress can override such
veto by two-thirds vote of the House of Representatives and the Senate voting separately. 53This constitutional check-
and-balance should at all times be maintained to avoid wastage of taxpayers’ money.
The President has taken a constitutionally prescribed oath to “preserve and defend” the Constitution. Thus, the
President has a constitutional duty to preserve and defend his constitutional line-item veto power by submitting to
Congress only a line-item NEP without lump-sum expenditures, and then by demanding that Congress approve only
a line-item GAA without lump-sum appropriations. Congress violates the Constitution if it circumvents the
President’s line-item veto power by enacting lump-sum appropriations in the GAA. To repeat, the President has a
constitutional duty to submit to Congress only a line-item NEP without lump-sum expenditures, while Congress
has a constitutional duty
_______________
227to enact only a line-item GAA without lump-sum appropriations.

In fact, the law governing the “content” of the GAA already mandates that there must be “corresponding
appropriations for each program and project,” or line-item budgeting, in the GAA. Section 23, Chapter 4, Book
VI of the Administrative Code of 1987 provides:
23. SectionContent of the General Appropriations Act.—The General Appropriations Act shall
be presented in the form of budgetary programs and projects for each agency of the
government, with the corresponding appropriations for each program and project, including
statutory provisions of specific agency or general applicability. The General Appropriations Act
shall not contain any itemization of personal services, which shall be prepared by the Secretary after
enactment of the General Appropriations Act, for consideration and approval of the President.
(Emphasis supplied)
Under Section 23, “each program and project” in the GAA must have “corresponding appropriations.”
Indisputably, the Administrative Code mandates line-item appropriations in the GAA. There can be no lump-sum
appropriations in the GAA because the Administrative Code requires “corresponding appropriations for
each program and project.” This means a corresponding appropriation for each program, and a corresponding
appropriation for each project of the program. To repeat, lump-sum appropriations are not allowed in the GAA.
Appropriations for personal services need not be itemized further, as long as the specific purpose, which is
personal services, has a specific corresponding amount. Section 35, Chapter 5, Book VI of the Administrative
Code of 1987 explains how appropriations for personal services shall be itemized further, thus:228
35. SECTIONSpecial Budgets for Lump-Sum Appropriations.—Expenditures from lump-
sum appropriations authorized for any purpose or for any department, office or agency in any
annual General Appropriations Act or other Act and from any fund of the National Government,
shall be made in accordance with a special budget to be approved by the President, which shall
include but shall not be limited to the number of each kind of position, the designations, and the
annual salary proposed for which an appropriation is intended. This provision shall be
applicable to all revolving funds, receipts which are automatically made available for expenditure
for certain specific purposes, aids and donations for carrying out certain activities, or deposits
made to cover to cost of special services to be rendered to private parties. Unless otherwise
expressly provided by law, when any Board, head of department, chief of bureau or office, or any
other official, is authorized to appropriate, allot, distribute or spend any lump-sum appropriation or
special, bond, trust, and other funds, such authority shall be subject to the provisions of this section.
In case of any lump-sum appropriation for salaries and wages of temporary and emergency
laborers and employees, including contractual personnel, provided in any General Appropriation
Act or other Acts, the expenditure of such appropriation shall be limited to the employment of
persons paid by the month, by the day, or by the hour. (Boldfacing and italicization supplied)
Thus, appropriations for personal services need not be further itemized or broken down in the GAA as the
purpose for such appropriation is sufficiently specific satisfying the constitutional requirement for a valid
appropriation. The constitutional test for validity is not how itemized the appropriation is down to the project level
but whether the purpose of the appropriation is specific enough to allow the President to exercise his line-item veto
power. Section 23, Chapter 4, Book VI of the Administrative Code provides a stricter re-229quirement by
mandating that there must be a corresponding appropriation for each program and for each project. A project is a
component of a program which may have several projects. 54 A program is equivalent to the specific purpose of an
appropriation.55 An item of appropriation for school-building is a program, while the specific schools to be built,
being the identifiable outputs of the program, are the projects. The Constitution only requires a corresponding
appropriation for a specific purpose or program, not for the sub-set of projects or activities.
All GAAs must conform to Section 23, Chapter 4, Book VI of the Administrative Code of 1987 because Section
23 implements the constitutional requirement that the “form, content, and manner of preparation of the budget
shall be prescribed by law.” Section 25(1), Article VI of the Constitution states:
The Congress may not increase the appropriations recommended by the President for the operation
of the Government as specified in the budget. 25(1). Section The form, content, and manner of
preparation of the budget shall be prescribed by law. (Emphasis supplied)
_______________
54Section 2(12) and (13), Chapter 1, Book VI, Administrative Code of 1987.
2. SECTIONDefinition of Terms.—When used in this Book:
x x x
“Program” refers to the functions and activities necessary for the performance of a major purpose for which a government
agency is established. (12)
“Project” means a component of a program covering a homogenous group of activities that results in the accomplishment
of an identifiable output. (13)
55Id.
230Since the Constitution mandates that the budget, or the GAA, must adopt the “content” prescribed by law, and
that law is Section 23, Chapter 4, Book VI of the Administrative Code of 1987, then all GAAs must adopt only
line-item appropriations, as expressly prescribed in Section 23. Any provision of the GAA that violates
Section 23 also violates Section 25(1), Article VI of the Constitution, and is thus unconstitutional.
Section 25(1) of Article VI is similar to Section 10, Article X of the same Constitution which provides that a
local government unit can be created, divided, merged or abolished only “in accordance with the criteria established
in the local government code.” A law creating a new local government unit must therefore comply with the Local
Government Code of 1991,56 even if such law is later in time than the Local Government Code. In the same manner,
all GAAs must comply with Section 23, Chapter 4, Book VI of the Administrative Code, even if the GAAs are later
in time than the Administrative Code. GAAs that provide lump-sum appropriations, even though enacted after the
effectivity of the Administrative Code of 1987, cannot prevail over Section 23, Chapter 4, Book VI of the
Administrative Code.
The OSG maintains that “there is nothing in the Constitution that mandates Congress to pass only line-item
appropriations.” In fact, according to the OSG, the Constitution allows the creation of “discretionary funds” and
“special funds,” which are allegedly lump-sum appropriations.
This is plain error. The Constitution allows the creation of discretionary and special funds but with certain
specified conditions. The Constitution requires that these funds must have specific purposes and can be used
only for such specific purposes. As stated in the Constitution:
_______________
56Cawaling, Jr. v. Comelec, 420 Phil. 524; 368 SCRA 453 (2001).
231

(6)Discretionary funds appropriated for particular officials shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as may be
prescribed by law. 57
x x x x
All money collected on any tax levied for a (3) special purpose shall be treated as a special fund
and paid out for such purpose only. If the purpose for which a special fund was created has been
fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the
Government. (Boldfacing and italicization supplied)
58
The “discretionary funds” and “special funds” mentioned in the Constitution are sui generis items of
appropriation because they are regulated by special provisions of the Constitution.
“Discretionary funds” are appropriated for particular officials who must use the funds only for public purposes
in relation to the functions of their public office. The particular public officials must support the use of discretionary
funds with appropriate vouchers under guidelines prescribed by law. “Discretionary funds” already existed in GAAs
under the 1935 and 1973 Constitutions. They are items, and not lump-sums, with specified conditions and
guidelines. A valid appropriation includes the payment of funds “under specified conditions.” 59 The framers of the
1987 Constitution decided to regulate in the Constitution itself the disbursement of discretionary funds “to avoid
abuse of discretion in the use of discretionary funds”60 in the light of the experience during the Mar-
_______________
59Section 2, Chapter 1, Book VI, Administrative Code of 1987.
60Journal of the Constitutional Commission, Vol. 1, Journal No. 37, p. 391, 23 July 1986.
232tial Law regime when discretionary funds “were spent for the personal aggrandizement of the First Family and
some of their cronies.”61
The “special funds” mentioned in the Constitution do not come from the General Funds as in the case of
ordinary special funds, but from a corresponding “tax levied for a special purpose.” Unlike ordinary special funds,
the “special funds” mentioned in the Constitution cannot be commingled with other funds and must be “paid out for
such (special) purpose only.” The “special funds” mentioned in the Constitution are also not subject to
realignment because once the special purpose of the fund is accomplished or abandoned, any balance “shall be
transferred to the general funds of the Government.”
It must be stressed that the “calamity fund,” “contingent fund,” and “intelligence fund” in the GAAs are not
lump-sum appropriations because they have specific purposes and corresponding amounts. The “calamity fund” can
be used only if there are calamities, a use of fund that is sufficiently specific. A “contingent fund” is ordinary and
necessary in the operations of both the private and public sectors, and the use of such fund is limited to actual
contingencies. The “intelligence fund” has a specific purpose — for use in intelligence operations. All these funds
are the proper subject of line-item appropriations.
An appropriation must specify the purpose and the corresponding amount which will be expended for that
specific purpose. The purpose of the appropriation must be sufficiently specific to allow the President to
exercise his line-item veto power. The appropriation may 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
_______________
Id.
61
233President’s line-item veto power. However, if the appropriation has several purposes which are
normally divisible but there is only a single amount for all such purposes, and the President cannot veto the use of
funds for one purpose without vetoing the entire appropriation, then the appropriation is a lump-sum appropriation.
In the 2013 GAA, the PDAF is a lump-sum appropriation, the purpose of which is the “support for priority
programs and projects,” with a menu of programs and projects listed in the PDAF provision that does not itemize the
amount for each listed program or project. Such non-itemization of the specific amount for each listed program
or project fails to satisfy the requirement for a valid appropriation. To repeat, the PDAF merely provides a
lump sum without stating the specific amount allocated for each listed program or project. The PDAF ties the hands
of the President since he has no choice except to accept the entire PDAF or to veto it entirely. Even if the PDAF
undeniably contains pork-barrel projects, the President might hesitate to veto the entire PDAF for to veto it would
result not only in rejecting the pork barrel projects, but also in denying financial support to legitimate projects. This
dilemma is the evil in lump-sum appropriations. The President’s line-item veto, which necessarily requires line-item
appropriations from the Legislature, is intended precisely to exorcise this evil from appropriation laws.
Clearly, the PDAF negates the President’s constitutional line-item veto power, and also violates the
constitutional duty of Congress to enact a line-item GAA. Thus, Article XLIV, on the Priority Development
Assistance Fund, of the 2013 GAA is unconstitutional. Whatever funds that are still remaining from this invalid
appropriation shall revert to the unappropriated surplus or balances of the General Fund.
The balance of the 2013 PDAF, having reverted to the unappropriated surplus or balances of the General Fund,
can be the subject of an emergency supplemental appropriation to aid the victims of Typhoon Yolanda as well as to
fund the
234repair and reconstruction of facilities damaged by the typhoon. When the Gulf Coast of the United States was
severely damaged by Hurricane Katrina on 29 August 2005, the U.S. President submitted to the U.S. Congress a
request for an emergency supplemental budget on 1 September 2005. 62 The Senate passed the request on 1
September 2005 while the House approved the bill on 2 September 2005, and the U.S. President signed it into law
on the same day.63 It took only two days for the emergency supplemental appropriations to be approved and passed
into law. There is nothing that prevents President Benigno S. Aquino III from submitting an emergency
supplemental appropriation bill that could be approved on the same day by the Congress of the Philippines. The
President can certify such bill for immediate enactment to meet the public calamity caused by Typhoon Yolanda. 64
IV.
The phrase “for such other purposes as may be hereafter directed by the President” in PD No. 910 is an Undue
Delegation of Legislative Power.
_______________
61Id.
62Jennifer E. Lake and Ralph M. Chite, Emergency Supplemental Appropriations for Hurricane Katrina Relief, CRS
Report for Congress, 7 September 2005. http://www.fas.org/sgp/crs/misc/RS22239.pdf (accessed 14 November 2013).
63Id.
64Section 26(2), Article VI, 1987 Constitution
No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed
copies thereof in its final form have been distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public calamity or emergency . Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal. (Emphasis supplied)
235Presidential Decree No. 910, issued by former President Ferdinand E. Marcos, mandates that royalties and
proceeds from the exploitation of energy resources shall form part of a special fund (Malampaya Fund) to finance
energy development projects of the government. Section 8 of PD No. 91065 reads:
8. SECTIONAppropriations.—The sum of Five Million Pesos out of any available funds from
the National Treasury is hereby appropriated and authorized to be released for the organization of
the Board and its initial operations. Henceforth, funds sufficient to fully carry out the functions and
objectives of the Board shall be appropriated every fiscal year in the General Appropriations Act.
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.
(Emphasis supplied)
Petitioners assail the constitutionality of the phrase “for such other purposes as may be hereafter directed by
the President” since it constitutes an undue delegation of legislative power. On the other hand, the OSG argues
other-
_______________
65Entitled Creating An Energy Development Board, Defining its Powers and Functions, Providing Funds Therefor,
and For Other Purposes.
236wise and invokes the statutory construction rule of ejusdem generis.

Such reliance on the ejusdem generis rule is misplaced.
For the rule of ejusdem generis to apply, the following must be present: (1) a statute contains an enumeration of
particular and specific words, followed by a general word or phrase; (2) the particular and specific words constitute
a class or are of the same kind; (3) the enumeration of the particular and specific words is not exhaustive or is not
merely by examples; and (4) there is no indication of legislative intent to give the general words or phrases a broader
meaning.66
There is no enumeration of particular and specific words, followed by a general word or phrase, in Section 8 of
PD No. 910. The Malampaya Fund, created by PD No. 910, is to be used exclusively for a single object or purpose:
to finance “energy resource development and exploitation programs and projects of the government.” The phrase
“for such other purposes” does not follow an enumeration of particular and specific words, with each word
constituting part of a class or referring to the same kind. In other words, the phrase “for such other purposes” is
not preceded by an enumeration of purposes but by a designation of only a single purpose. The phrase “energy
resource development and exploitation programs and projects of the government” constitutes only one of a class,
and there is no other phrase or word to make an enumeration of the same class.
There is only a single subject to be financed by the Malampaya Fund — that is, the development and
exploitation of energy resources. No other government program would be funded by PD No. 910, except the
exploration, exploitation
_______________
66Agpalo, Ruben E., STATUTORY CONSTRUCTION, Fourth Edition, 1998, p. 217 citing Commissioner of Customs v.
Court of Tax Appeals, 150 Phil. 222; 43 SCRA 192 (1972); Asturias Sugar Central, Inc. v. Commissioner of Customs, 140
Phil. 20; 29 SCRA 617 (1969); People v. Kottinger, 45 Phil. 352 (1923).
237and development of indigenous energy resources as envisioned in the law’s Whereas clauses, to wit:
WHEREAS, there is need to intensify, strengthen, and consolidate government efforts relating to
the exploration, exploitation and development of indigenous energy resources vital to economic
growth;
WHEREAS, it is imperative that government accelerate the pace of, and focus special attention on,
energy exploration, exploitation and development in the light of encouraging results in recent oil
exploration and of world-wide developments affecting our continued industrial progress and well-
being; x x x
The rule of ejusdem generis will apply if there is an enumeration of specific energy sources, such as gas, oil,
geothermal, hydroelectric, and nuclear, and then followed by a general phrase “and such other energy sources,” in
which case tidal, solar and wind power will fall under the phrase “other energy sources.” In PD No. 910, no such or
similar enumeration can be found. Instead, what we find is the sole purpose for which the Malampaya Fund shall be
used — that is, to finance “energy resource development and exploitation programs and projects of the
government.”
The phrase “as may be hereafter directed by the President” refers to other purposes still to be determined by
the President in the future. Thus, the other purposes to be undertaken could not as yet be determined at the time PD
No. 910 was issued. When PD No. 910 was issued, then President Ferdinand E. Marcos exercised both executive
and legislative powers. The President then, in the exercise of his law-making powers, could determine in the future
the other purposes for which the Malampaya Fund would be used. This is precisely the reason for the phrase “as
may be hereafter directed by the President.” Thus, in light of the executive and legislative powers exercised by the
President at that time, the phrase “for such other purposes as may be hereafter directed by the
238President” has a broader meaning than the phrase “energy resource development and exploitation programs and
projects of the government.”
This does not mean, however, that the phrase “energy resource development and exploitation programs and
projects” should be unreasonably interpreted narrowly. To finance “energy resource development and exploitation
programs and projects” includes all expenditures necessary and proper to carry out such development and
exploitation — including expenditures to secure and protect the gas and oil fields in Malampaya from encroachment
by other countries or from threats by terrorists. Indeed, the security of the gas and oil fields is absolutely essential to
the development and exploitation of such fields. Without adequate security, the gas and oil fields cannot be
developed or exploited, thus generating no income to the Philippine government.
Under the 1987 Constitution, determining the purpose of the expenditure of government funds is an exclusive
legislative power. The Executive can only propose, but cannot determine the purpose of an appropriation. An
appropriation cannot validly direct the payment of government funds “for such other purposes as may be hereafter
directed by the President,” absent the proper application of the ejusdem generis rule. Section 8 of PD No. 910
authorizes the use of the Malampaya Fund for other projects approved only by the President. To repeat, Congress
has the exclusive power to appropriate public funds, and vesting the President with the power to determine the uses
of the Malampaya Fund violates the exclusive constitutional power of Congress to appropriate public funds.
V.
The phrase “to finance the priority infrastructure
development projects x x x, as may be directed and
authorized by the x x x President” under Section 12, Title IV of PD No. 1869, relating to the Use of the
239Government’s Share in PAGCOR’s Gross Earnings, is Unconstitutional.

The assailed provision in PD No. 1869 refers to the President’s use of the government’s share in the gross
earnings of PAGCOR. Section 12, Title IV of PD No. 1869, or the PAGCOR charter, as amended, provides:
12. SectionSpecial Condition of Franchise.—After deducting five (5%) percent as Franchise
Tax, the fifty (50%) percent share of the government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
P150,000,000.00, shall immediately 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. (Emphasis supplied)
67
Similar to PD No. 910, PD No. 1869 was issued when then President Marcos exercised both executive and
legislative powers. Under the 1987 Constitution, the President no longer wields legislative powers. The phrase that
the government’s share in the gross earnings of PAGCOR shall be used “to finance the priority infrastructure
development projects x x x as may be directed and authorized by the Office of the President of the
Philippines,” is an undue delegation of the legislative power to appropriate.
An infrastructure is any of the “basic physical and organizational structures and facilities (e.g., buildings, roads,
power supplies) needed for the operation of a society.”68 An appro-
_______________
67As amended by Presidential Decree No. 1993. The pleadings of petitioners and respondents still referred to the
original text in Section 12 as it first appeared in Presidential Decree No. 1869.
68Oxford Dictionary of English, Oxford University Press (2010).
240priation for any infrastructure, or for various infrastructures, to be determined by the President is certainly
not a specific purpose since an infrastructure is any basic facility needed by society. This power granted to the
President to determine what kind of infrastructure to prioritize and fund is a power to determine the purpose of the
appropriation, an undue delegation of the legislative power to appropriate.
The appropriation in Section 12 has two divisible purposes: one to finance any infrastructure project, and the
other to finance the restoration of damaged or destroyed facilities due to calamities. To be a valid appropriation,
each divisible purpose must have a corresponding specific amount, whether an absolute amount, a percentage of an
absolute amount, or a percentage or the whole of a revenue stream like periodic gross earnings or collections.
Section 12 is a lump-sum appropriation in view of its two divisible purposes and its single lump-sum amount.
However, since the first appropriation purpose — to finance any infrastructure project as the President may
determine — is unconstitutional, Section 12 has in effect only one appropriation purpose. That purpose, to finance
the restoration of facilities damaged or destroyed by calamities, is a specific purpose because the facilities to be
restored are only those damaged by calamities. This purpose meets the specificity required for an item to be a valid
appropriation. The entire amount constituting the government’s share in PAGCOR’s gross earnings then becomes
the specific amount to finance a specific purpose — the restoration of facilities damaged or destroyed by calamities,
which is a valid appropriation.
In sum, only the phrase “to finance the priority infrastructure development projects” in Section 12 of the
PAGCOR Charter is unconstitutional for being an undue delegation of legislative power. The rest of Section 12 is
constitutional.241
A Final Word
The PDAF bluntly demonstrates how a breakdown in the finely crafted constitutional check-and-balance system
could lead to gross abuse of power and to wanton wastage of public funds. When the Executive and the Legislature
enter into a constitutionally forbidden arrangement — the former proposing lump-sum expenditures in negation of
its own line-item veto power and the latter enacting lump-sum appropriations to implement with facility its own
chosen projects — the result can be extremely detrimental to the Filipino people.
We have seen the outrage of the Filipino people to the revulsive pork-barrel system spawned by this forbidden
Executive-Legislative arrangement. The Filipino people now realize that there are billions of pesos in the annual
budget that could lift a large number of Filipinos out of abject poverty but that money is lost to corruption annually.
The Filipino people are now desperately in search of a solution to end this blighted pork-barrel system.
The solution lies with this Court, which must rise to this historic challenge. The supreme duty of this Court is
to restore the constitutional check-and-balance that was precisely intended to banish lump-sum
appropriations and the pork-barrel system. The peaceful and constitutional solution to banish all forms of the
pork-barrel system from our national life is for this Court to declare all lump-sum appropriations, whether proposed
by the Executive or enacted by the Legislature, as unconstitutional.
Henceforth, as originally intended in the Constitution, the President shall submit to Congress only a line-item
NEP, and Congress shall enact only a line-item GAA. The Filipino people can then see in the GAA for what specific
purposes and in what specific amounts their tax money will be spent. This will allow the Filipino people to monitor
whether their tax money is actually being spent as stated in the GAA. 242
ACCORDINGLY, I vote to GRANT the petitions and DECLARE Article XLIV, on the Priority Development
Assistance Fund, of Republic Act No. 10352 UNCONSTITUTIONAL for violating the separation of powers,
negating the President’s constitutional line-item veto power, violating the constitutional duty of Congress to enact a
line-item General Appropriations Act, and violating the requirement of line-item appropriations in the General
Appropriations Act as prescribed in the Administrative Code of 1987. Further, the last phrase of Section 8 of
Presidential Decree No. 910, authorizing the use of the Malampaya Fund “for such other purposes as may hereafter
be directed by the President,” and the phrase in Section 12, Title IV, of Presidential Decree No. 1869, as amended,
authorizing the President to use the government’s share in PAGCOR’s gross earnings “to finance the priority
infrastructure development projects” as the President may determine, are likewise
declared UNCONSTITUTIONAL for being undue delegations of legislative power. I also vote to make permanent
the temporary restraining order issued by this Court on 10 September 2013. I vote to deny petitioners’ prayer for the
Executive Secretary, Department of Budget and Management and Commission on Audit to release reports and data
on the funds subject of these cases, as it was not shown that they have properly requested these agencies for the
pertinent data.
September 4, 2012. G.R. No. 196231.*

EMILIO A. GONZALES III, petitioner, vs. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through
and represented by EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive Secretary for
Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, and ATTY. CARLITO
D. CATAYONG, respondents.
September 4, 2012. G.R. No. 196232.*

WENDELL BARRERAS-SULIT, petitioner, vs. ATTY. PAQUITO N. OCHOA, JR., in his capacity as
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.
SULAY and ATTY. FROILAN D. MONTALBAN, JR., in their capacities as CHAIRMAN and MEMBERS of the
OFFICE OF MALACAÑANG LEGAL AFFAIRS, respondents.
Ombudsman; Administrative Law; While Section 21 of the Ombudsman Act of 1989 (R.A. No. 6770)
declares the Ombudsman’s
_______________
* EN BANC.
615

15
Gonzales III vs. Office of the President of the
Philippines
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor.—While the
Ombudsman’s authority to discipline administratively is extensive and covers all government officials,
whether appointive or elective, with the exception only of those officials removable by impeachment, the
members of congress and the judiciary, such authority is by no means exclusive. Petitioners cannot insist
that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while
Section 21 declares the Ombudsman’s disciplinary authority over all government officials, Section 8(2),
on the other hand, grants the President express power of removal over a Deputy Ombudsman and a
Special Prosecutor.
Statutory Construction; A construction that would render a provision inoperative should be
avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a
coordinated and harmonious whole.—It is a basic canon of statutory construction that in interpreting a
statute, care should be taken that every part thereof be given effect, on the theory that it was enacted as an
integrated measure and not as a hodge-podge of conflicting provisions. A construction that would render
a provision inoperative should be avoided; instead, apparently inconsistent provisions should be
reconciled whenever possible as parts of a coordinated and harmonious whole. Otherwise stated, the law
must not be read in truncated parts. Every part thereof must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment.
Ombudsman; Administrative Law; The Ombudsman is possessed of jurisdiction to discipline his
own people and mete out administrative sanctions upon them, including the extreme penalty of dismissal
from the service. However, it is equally without question that the President has concurrent authority with
respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions.—Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people
and mete out administrative sanctions upon them, including the extreme penalty of dismissal from the
service. However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit
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16 ANNOTATED
Philippines
under specified conditions. Considering the principles attending concurrence of jurisdiction where
the Office of the President was the first to initiate a case against petitioner Gonzales, prudence should
have prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President’s assumption of authority, especially when
the administrative charge involved “demanding and soliciting a sum of money” which constitutes
either graft and corruption or bribery, both of which are grounds reserved for the President’s exercise of
his authority to remove a Deputy Ombudsman.
Presidency; Power to Remove; As a general rule, all officers appointed by the President are also
removable by him except when the law expressly provides otherwise—that is, when the power to remove
is expressly vested in an office or authority other than the appointing power.—Under the doctrine of
implication, the power to appoint carries with it the power to remove. As a general rule, therefore, all
officers appointed by the President are also removable by him. The exception to this is when the law
expressly provides otherwise—that is, when the power to remove is expressly vested in an office or
authority other than the appointing power. In some cases, the Constitution expressly separates the power
to remove from the President’s power to appoint. Under Section 9, Article VIII of the 1987 Constitution,
the Members of the Supreme Court and judges of lower courts shall be appointed by the President.
However, Members of the Supreme Court may be removed after impeachment proceedings initiated by
Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme
Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII).
The Chairpersons and Commissioners of the Civil Service Commission [Section 1(2), Article IX(B)], the
Commission on Elections [Section 1(2), Article IX(C)], and the Commission on Audit [Section 1(2),
Article IX(D)] shall likewise be appointed by the President, but they may be removed only by
impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the
President (Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI).
Constitutional Law; Deputy Ombudsman; Ombudsman Act of 1989 (R.A. No. 6770); Impeachment;
Paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from
617

17
Philippines
office for the same grounds that the Ombudsman may be removed through impeachment, namely,
“culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust.”—Being aware of the constitutional imperative of shielding the Office of the
Ombudsman from political influences and the discretionary acts of the executive, Congress laid down two
restrictions on the President’s exercise of such power of removal over a Deputy Ombudsman, namely: (1)
that the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of
the Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that
the Ombudsman may be removed through impeachment, namely, “culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Thus, it cannot be
rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor
for that matter, would diminish or compromise the constitutional independence of the Office of the
Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman’s Deputies
and Special Prosecutor in the discharge of their duties that their removal can only be had on grounds
provided by law.
Remedial Law; Civil Procedure; Appeals; Administrative decisions in matters within the executive
jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law.—The
invariable rule is that administrative decisions in matters within the executive jurisdiction can only be set
aside on proof of gross abuse of discretion, fraud, or error of law. In the instant case, while the evidence
may show some amount of wrongdoing on the part of petitioner, the Court seriously doubts the
correctness of the OP’s conclusion that the imputed acts amount to gross neglect of duty and grave
misconduct constitutive of betrayal of public trust. To say that petitioner’s offenses, as they factually
appear, weigh heavily enough to constitute betrayal of public trust would be to ignore the significance of
the legislature’s intent in prescribing the removal of the Deputy Ombudsman or the Special Prosecutor for
causes that, theretofore, had been reserved only for the most serious violations that justify the removal by
impeachment of the highest officials of the land. 618

18 ANNOTATED
Philippines
Constitutional Law; Impeachment; Betrayal of Public Trust; Words and Phrases; Betrayal of public
trust is a new ground for impeachment under the 1987 Constitution added to the existing grounds of
culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes.—
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of office, the
impreciseness of its definition also created apprehension that “such an overarching standard may be too
broad and may be subject to abuse and arbitrary exercise by the legislature.” Indeed, the catch-all
phrase betrayal of public trust that referred to “all acts not punishable by statutes as penal offenses but,
nonetheless, render the officer unfit to continue in office” could be easily utilized for every conceivable
misconduct or negligence in office.
Same; Same; Deputy Ombudsman; Special Prosecutors; A Deputy Ombudsman and a Special
Prosecutor are not impeachable officers.—A Deputy Ombudsman and a Special Prosecutor are not
impeachable officers. However, by providing for their removal from office on the same grounds as
removal by impeachment, the legislature could not have intended to redefine constitutional standards
of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, as
well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of public trust, for
purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of
judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not
suddenly “overreach” to cover acts that are not vicious or malevolent on the same level as the other
grounds for impeachment.
Administrative Law; Ineptitude; Neglect of Duty; The disciplining authority’s finding of ineptitude,
neglect or willfulness on the part of the prosecution in failing to pursue or build a strong case for the
government or, in this case, entering into an agreement which the
619

19
Philippines
government finds “grossly disadvantageous,” could result in administrative liability,
notwithstanding court approval of the plea bargaining agreement entered into.—While the court’s
determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on
record, the disciplinary authority’s determination of the prosecutor’s administrative liability is based on
whether the plea bargain is consistent with the conscientious consideration of the government’s best
interest and the diligent and efficient performance by the prosecution of its public duty to prosecute
crimes against the State. Consequently, the disciplining authority’s finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit,
in failing to pursue or build a strong case for the government or, in this case, entering into an agreement
which the government finds “grossly disadvantageous,” could result in administrative liability,
notwithstanding court approval of the plea bargaining agreement entered into.
Criminal Procedure; Plea Bargaining; Plea bargaining is allowable when the prosecution does not
have sufficient evidence to establish the guilt of the accused of the crime charged.—Plea bargaining is
allowable when the prosecution does not have sufficient evidence to establish the guilt of the accused of
the crime charged. However, if the basis for the allowance of a plea bargain in this case is the evidence on
record, then it is significant to state that in its earlier Resolution promulgated on January 7, 2010, the
Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared that “the
conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character
that militates against the grant of bail.” Notwithstanding this earlier ruling by the Sandiganbayan, the
OSP, unexplainably, chose to plea bargain with the accused Major General Garcia as if its evidence were
suddenly insufficient to secure a conviction. At this juncture, it is not amiss to emphasize that the
“standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher
than the standard of judicial probable cause which is sufficient to initiate a criminal case.” Hence, in light
of the apparently strong case against accused Major General Garcia, the disciplining authority would be
hardpressed not to look into the whys and wherefores of the prosecution’s turnabout in the case. 620

20 ANNOTATED
Philippines
CARPIOJ., Concurring Opinion: ,
Constitutional Law; Ombudsman; View that the Supreme Court cannot assume that the
independence of the Ombudsman is the same as the independence of the Judiciary. Neither is the
independence of the Constitutional Commissions the same as that of the National Economic and
Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human Rights.—Our
Constitution does not impart a fixed and rigid concept of independence among the offices that it creates.
While it declares certain bodies as “‘independent”, we cannot assume that the independence of the
Ombudsman is the same as the independence of the Judiciary. Neither is the independence of the
Constitutional Commissions the same as that of the National Economic and Development Authority,
the Bangko Sentral ng Pilipinas or the Commission on Human Rights. This Court cannot make a “one
size fits all” concept of independence because the Constitution itself differentiates the degree of
independence of these bodies.
Same; Ombudsman Act of 1989 (R.A. No. 6770); View that Section 8(2) of the Ombudsman Act does
not violate the Constitution; One of the constitutive principles of our constitutional structure is the system
of checks and balances — a check that is not within a body, but outside of it.—I agree with the ponencia
that Section 8(2) of the Ombudsman Act does not violate the Constitution. The constitutional principle of
independence does not obviate the possibility of a check from another body. After all, one of the
constitutive principles of our constitutional structure is the system of checks and balances—a check that is
not within a body, but outside of it. This is how our democracy operates—on the basis of distrust.
Same; Removal of Public Officers; View that Section 2, Article XI of the 1987 Constitution
prescribes how all public officers and employees, both impeachable and non-impeachable, may be
removed.—Section 2, Article XI of the 1987 Constitution prescribes how all public officers and
employees, both impeachable and non-impeachable, may be removed. Section 2 provides: The
President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and cor-
621

21
Philippines
ruption, other high crimes, or betrayal of public trust. All other public officers and employees may
be removed from office as provided by law, but not by impeachment. (Boldfacing and underscoring
supplied)
Same; Same; View that Congress, pursuant to Section 2, Article XI of the 1987 Constitution and in
the exercise of its plenary power, enacted the Ombudsman Act, conferring on the President the power to
remove the Deputy Ombudsman and the Special Prosecutor as provided in Section 8(2) of the
Ombudsman Act.—The Deputy Ombudsman and the Special Prosecutor are not among the impeachable
officers under the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the
Constitution, they “may be removed from office as provided by law.” Congress, pursuant to this
constitutional provision and in the exercise of its plenary power, enacted the Ombudsman Act, conferring
on the President the power to remove the Deputy Ombudsman and the Special Prosecutor as provided in
Section 8(2) of the Ombudsman Act.
Same; Same; View that pursuant to Section 8(2) and Section 21 of the Ombudsman Act, the
legislative intent is to grant concurrent jurisdiction to the President and the Ombudsman in the removal
of the Deputy Ombudsman and the Special Prosecutor.—In view of Section 8(2) and Section 21 of the
Ombudsman Act, the legislative intent is to grant concurrent jurisdiction to the President and the
Ombudsman in the removal of the Deputy Ombudsman and the Special Prosecutor. An “endeavor should
be made to harmonize the provisions of a law x x x so that each shall be effective.” This is not a hollow
precept of statutory construction. This is based not only on democratic principle but also on the separation
of powers, that this Court should not be so casual in voiding the acts of the popularly elected legislature
unless there is a clear violation of the Constitution.
Same; Same; View that any reading of the 1987 Constitution does not warrant the conclusion that
all bodies declared by the Constitution as “independent” have exclusive disciplinary authority over all
their respective officials and employees. Unlike the Judiciary where such exclusivity is expressly provided
for in the Constitution, there is no reason to read such provision in the Ombudsman where the
Constitution is silent.—Any reading of the 1987 Constitution
622

22 ANNOTATED
Philippines
does not warrant the conclusion that all bodies declared by the Constitution as “independent” have
exclusive disciplinary authority over all their respective officials and employees. Unlike the Judiciary
where such exclusivity is expressly provided for in the Constitution, there is no reason to read such
provision in the Ombudsman where the Constitution is silent. On the contrary, the constitutional
provision that non-impeachable officers and employees “may be removed from office as provided by
law” removes any doubt that Congress can determine the mode of removal of non-impeachable officers
and employees of “independent” bodies other than the Judiciary. An “independent” body does not have
exclusive disciplinary authority over its officials and employees unless the Constitution expressly so
provides, as in the case of the Judiciary.
Same; Same; Checks and Balances; View that there is no office that is insulated from a possible
correction from another office. The executive, legislative and judicial branches of government operate
through the system of checks and balances.—A completely “independent” body is alien to our
constitutional system. There is no office that is insulated from a possible correction from another office.
The executive, legislative and judicial branches of government operate through the system of checks and
balances. All independent constitutional bodies are subject to review by the courts. A fiscally autonomous
body is subject to audit by the Commission on Audit, and Congress cannot be compelled to appropriate a
bigger budget than that of the previous fiscal year.
Same; Same; Same; View that the Ombudsman is not constitutionally empowered to act alone.
Congress can even authorize the Department of Justice or the Office of the President to investigate cases
within the jurisdiction of the Ombudsman.—Clearly, the Ombudsman is not constitutionally empowered
to act alone. Congress can even authorize the Department of Justice or the Office of the President to
investigate cases within the jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate
public officers and employees ho are under the disciplinary authority of heads of other bodies or agencies.
The cases cited in the ponencia, i.e. Hagad v. Gozo-Dadole, 251 SCRA 242 (1995), and Office the
Ombudsman v. Delijero, Jr., 634 SCRA 135 (2010)—illustrate that concurrent jurisdiction does not
impair the independence of the Ombudsman. Dupli-
623

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Philippines
cation of functions may not at all times promote efficiency, but it is not proscribed y the
Constitution.
BRIONJ., Concurring and Dissenting Opinion: ,
Constitutional Law; Ombudsman; View that the Ombudsman’s duty to protect the people from
unjust, illegal and inefficient acts of all public officials emanates from Section 12, Article XI of the
Constitution.—The Ombudsman’s duty to protect the people from unjust, illegal and inefficient acts of all
public officials emanates from Section 12, Article XI of the Constitution. These broad powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure.
Same; Checks and Balances; View that as a checks and balance mechanism, the Constitution, the
Rules of Court, and their implementing laws provide measures to check on the “independence” granted
to the Constitutional Commissions and the Office of the Ombudsman; the Supreme Court, as the final
arbiter of all legal questions, may review the decisions of the Constitutional Commissions and the Office
of the Ombudsman, especially when there is grave abuse of discretion.—The independence enjoyed by
the Office of the Ombudsman, by the Constitutional Commissions, and by the Judiciary shares certain
characteristics—they do not owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. For most, if not for all of these
“independent” bodies, the framers of the Constitution intended that they be insulated from political
pressure. As a checks and balance mechanism, the Constitution, the Rules of Court, and their
implementing laws provide measures to check on the “independence” granted to the Constitutional
Commissions and the Office of the Ombudsman; the Supreme Court, as the final arbiter of all legal
questions, may review the decisions of the Constitutional Commissions and the Office of the
Ombudsman, especially when there is grave abuse of discretion. Of course, foisted over the Members of
the Supreme Court is the power of impeachment that Congress has the authority to initiate, and carry into
its logical end a meritorious impeachment case. Such is the symmetry that our Constitution provides for
the harmonious balance of all its component and “independent” parts. 624

24 ANNOTATED
Philippines
Same; Removal of Public Officers; View that the absence of a constitutional provision providing for
the removal of the Commissioners and Deputy Ombudsmen does not mean that Congress can empower
the President to discipline or remove them in violation of the independence that the Constitution textually
and expressly provides.—The President can appoint Chairmen and Commissioners of the Constitutional
Commissions, and the Ombudsman and her Deputies, but the Constitution categorically provides that the
Chairmen of the Constitutional Commissions and the Ombudsman can only be removed by
impeachment. The absence of a constitutional provision providing for the removal of the
Commissioners and Deputy Ombudsmen does not mean that Congress can empower the President
to discipline or remove them in violation of the independence that the Constitution textually and
expressly provides. As members of independent constitutional bodies, they should be similarly treated as
lower court judges, subject to discipline only by the head of their respective offices and subject to the
general power of the Ombudsman to dismiss officials and employees within the government for
cause. No reason exists to treat them differently.
Same; Same; View that the Supreme Court cannot simply construe Section 2, Article XI of the
Constitution to be a blanket authority for Congress to empower the President to remove all other public
officers and employees, including those under the independent constitutional bodies.—While I agree with
Justice Carpio’s opinion that the Constitution empowered Congress to determine the manner and causes
for the removal of non-impeachable officers, we cannot simply construe Section 2, Article XI of the
Constitution to be a blanket authority for Congress to empower the President to remove all other public
officers and employees, including those under the independent constitutional bodies. When the
Constitution states that Congress may provide for the removal of public officers and employees by law, it
does not mean that the law can violate the provisions and principles laid out in the Constitution.
ABADJ., Dissenting Opinion: ,
Constitutional Law; Removal of Public Officers; Ombudsman; View that with the exception of those
who are removable only by impeachment, the Office of the Ombudsman can investigate and take
625

25
Philippines
action against any appointive or elected official for corruption in office, be they Congressmen,
Senators, Department Secretaries, Governors, Mayors, or Barangay Captains.—The Constitution has
reasons for making the Office of the Ombudsman “independent.” Its primordial duty is to investigate and
discipline all elective and appointive government officials. Specifically, Section 13, Article XI of the
Constitution vests in that Office the absolute power to investigate any malfeasance, misfeasance, or non-
feasance of public officers or employees. This function places it a notch higher than other grievance-
handling, investigating bodies. With the exception of those who are removable only by impeachment, the
Office of the Ombudsman can investigate and take action against any appointive or elected official for
corruption in office, be they Congressmen, Senators, Department Secretaries, Governors, Mayors, or
Barangay Captains.
Same; Same; Checks and Balances; Impeachment; View that the power to impeach is a function of
check and balance under the Constitution. But the power to remove “public officers and employees” from
office, in the realm of administrative law, is a function of supervision, if not control. —The power to
impeach is a function of check and balance under the Constitution. But the power to remove “public
officers and employees” from office, in the realm of administrative law, is a function of supervision, if
not control. Keeping the Deputies in the Office of the Ombudsman and the Special Prosecutor
independent as the Constitution commands and subjecting them to the President’s control or supervision
are incompatible ideas.
Poncevic M. Ceballos for petitioner in G.R. No. 196231.
Camara, Meris & Associates Law Office for petitioner in G.R. No. 196232.
626
ANNOTATED
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PERLAS-BERNABE,J.:
The Cases
These two petitions have been consolidated not because they stem from the same factual milieu but because they
raise a common thread of issues relating to the President’s exercise of the power to remove from office herein
petitioners who claim the protective cloak of independence of the constitutionally-created office to which they
belong the Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance of
temporary restraining order or status quo order) which assails on jurisdictional grounds the Decision 1 dated March
31, 2011 rendered by the Office of the President in OP Case No. 10-J-460 dismissing petitioner Emilio A. Gonzales
III, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), upon a finding of guilt on
the administrative charges of Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust.
The petition primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise
known as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy Ombudsman of the
Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with application for
issuance of a temporary restraining order or status quo order) seeking to annul, reverse and set aside (1) the undated
Order2 requiring petitioner Wendell Barreras-Sulit to submit a written explanation with respect to alleged acts or
omissions constituting serious/grave offenses in relation to the Plea Bargaining Agreement (PLEBARA) entered into
with Major Gen-
_______________
1 Annex “A,” Rollo (G.R. No. 196231), pp. 72-86.
2 Annex “A,” Rollo (G.R. No. 196232), p. 26.
627
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eral Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation, 3 both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a Special Prosecutor
of the Office of the Ombudsman. The petition likewise seeks to declare as unconstitutional Section 8(2) of R.A. No.
6770 giving the President the power to dismiss a Special Prosecutor of the Office of the Ombudsman.
The facts from which these two cases separately took root are neither complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a hostage drama
that had slowly unfolded right at the very heart of the City of Manila. While initial news accounts were fragmented
it was not difficult to piece together the story on the hostage-taker, Police Senior Inspector Rolando Mendoza. He
was a disgruntled former police officer attempting to secure his reinstatement in the police force and to restore the
benefits of a life-long, and erstwhile bemedaled, service. The following day, broadsheets and tabloids were replete
with stories not just of the deceased hostage-taker but also of the hostage victims, eight of whom died during the
bungled police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign relation
proportions. One newspaper headline ran the story in detail, as follows:
MANILA, Philippines—A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national television
until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m.
Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the
police force.
_______________
3 Annex “C,” id., at p. 33.
628

ANNOTATED
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The hostage drama dragged on even after the driver of the bus managed to escape and told police that all
the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead hostages
handcuffed to the door made it difficult for them. Police said they fired at the wheels of the bus to
immobilize it.
Police used hammers to smash windows, door and windshield but were met with intermittent fire from the
hostage taker.
Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive. When the
standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza was killed by a
sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from inside
the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of the
hostages during the drama that began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going.
The disgruntled former police officer was reportedly armed with an M-16 rifle, a 9 mm pistol and two
hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying “big deal will start after 3 p.m.
today.” Another sign stuck to another window said “3 p.m. today deadlock.”
Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: “Big mistake to
correct a big wrong decision.” A larger piece of paper on the front windshield was headed, “Release final
decision,” apparently referring to the case that led to his dismissal from the police force. 629
VOL. 679, SEPTEMBER 4, 2012 629

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Negotiations dragged on even after Mendoza’s self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the police
force. “His problem was he was unjustly removed from service. There was no due process, no hearing, no
complaint,” Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his brother’s
action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front of national
television. This triggered the crisis that eventually forced Mendoza to carry out his threat and kill the
remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos, including
the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza inside the bus, which was parked in front of the Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered near
the scene.
Manila Police District (MPD) director Chief Superintendent Rodolfo Magtibay ordered the deployment of
crack police teams and snipers near the scene. A crisis management committee had been activated with
Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss Mendoza’s
case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus said Gutierrez gave
a “sealed letter” to Moreno to be delivered to Mendoza. De Jesus did not elaborate on the contents of the
letter but said Moreno was tasked to personally deliver the letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the slow
process of the Ombudsman in deciding his motion for reconsideration. He said the PNP-Internal Affairs
Service and the Manila Regional Trial Court had already dismissed criminal cases against him.
The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-799),
pretending to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros when
630

ANNOTATED
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Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the Quirino
Grandstand, Mendoza announced to the passengers that they would be taken hostage. “Having worn his
(police) uniform, of course there is no doubt that he already planned the hostage taking,” Margarejo said.
—Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christina
Mendez, AP [Grandstand Carnage, The Philippine Star, Updated August 24, 2010 12:00 AM, Val
Rodriguez]. 4
In a completely separate incident much earlier in time, more particularly in December of 2003, 28-year-old Juan
Paolo Garcia and 23- year-old Ian Carl Garcia were caught in the United States smuggling $100,000 from Manila by
concealing the cash in their luggage and making false statements to US Customs Officers. The Garcia brothers
pleaded guilty to bulk cash smuggling and agreed to forfeit the amount in favor of the US Government in exchange
for the dismissal of the rest of the charges against them and for being sentenced to time served. Inevitably, however,
an investigation into the source of the smuggled currency conducted by US Federal Agents and the Philippine
Government unraveled a scandal of military corruption and amassed wealth—the boys’ father, Retired Major
General Carlos F. Garcia, former Chief Procurement Officer of the Armed Forces, had accumulated more than P300
Million during his active military service. Plunder and Anti-Money Laundering cases were eventually filed against
Major General Garcia, his wife and their two sons before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge 5 for Grave Misconduct (robbery, grave threats, robbery extortion and
physical inju-
_______________
4 Val Rodriguez, Grandstand Carnage, The Philippine Star, August 24, 2010 <http://www.philstar.com/Article.aspx?
articleId=
605631&publicationSubCategoryId=63> (visited January 5, 2011).
5 Charge Sheet, Rollo (G.R. No. 196231), p. 87.
631
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ries) was filed before the Philippine National Police-National Capital Region (PNP-NCR) against Manila Police
District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others, namely, Police Inspector Nelson Lagasca,
Senior Police Inspector I Nestor David, Police Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A
similar charge was filed by the private complainant, Christian M. Kalaw, before the Office of the City Prosecutor,
Manila, docketed as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the National Police
Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III, all relevant documents and
evidence in relation to said case to the Office of the Deputy Ombudsman for appropriate administrative
adjudication.6 Subsequently, Case No. OMBP-A-08-0670-H for Grave Misconduct was lodged against P/S Insp.
Rolando Mendoza and his fellow police officers, who filed their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed 7 upon a finding that the material allegations
made by the complainant had not been substantiated “by any evidence at all to warrant the indictment of respondents
of the offenses charged.” Similarly, the Internal Affairs Service of the PNP issued a Resolution 8dated October 17,
2008 recommending the dismissal without prejudice of the administrative case against the same police officers, for
failure of the complainant to appear in three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a Decision 9 in
Case No.
_______________
6 Id., at p. 231.
7 Resolution dated August 26, 2008, id., at pp. 233-235.
8 Id., at p. 128.
9 Id., at pp. 153-158.
632
ANNOTATED
Philippines
OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police officers guilty of Grave
Misconductwas approved by the Ombudsman. The dispositive portion of said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL
ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan;P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the Service,
pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with
the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from
reemployment in the government service pursuant to Section 58, Rule IV of the same Uniform Rules of
Administrative Cases in the Civil Service, for having committed GRAVE MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration 10 of the foregoing Decision, followed by a
Supplement to the Motion for Reconsideration 11 on November 19, 2009. On December 14, 2009, the pleadings
mentioned and the records of the case were assigned for review and recommendation to Graft Investigation and
Prosecutor Officer Dennis L. Garcia, who released a draft Order 12 on April 5, 2010 for appropriate action by his
immediate superior, Director Eulogio S. Cecilio, who, in turn, signed and forwarded said Order to petitioner
Gonzalez’s office on April 27, 2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner
endorsed the Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in
whose office it remained pending for final review and action when
_______________
10 Id., at pp. 203-216.
11 Annex “F,” id., at pp. 132-136.
12 Annex “N,” id., at pp. 244-249.
633
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Philippines
P/S Insp. Mendoza hijacked a bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate
attempt to have himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong Chinese
nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public outcry against the
blundering of government officials prompted the creation of the Incident Investigation and Review Committee
(IIRC),13chaired by Justice Secretary Leila de Lima and vice-chaired by Interior and Local Government Secretary
Jesus Robredo. It was tasked to determine accountability for the incident through the conduct of public hearings and
executive sessions. However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional body.
Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner Gonzales to be
among those in whom culpability must lie. In its Report,14the IIRC made the following findings:
Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross
violation of their own rules of procedure by allowing Mendoza’s motion for reconsideration to
languish for more than nine (9) months without any justification, in violation of the Ombudsman
prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within
five (5) days from submission. The inaction is gross, considering there is no opposition [t]hereto.
The prolonged inaction precipitated the desperate resort to hostage-taking.
_______________
13 The President issued Joint Department Order No. 01-2010 creating the IIRC.
14 As quoted in the Petition in G.R. No. 196231, Rollo, pp. 17-20.
634

ANNOTATED
Philippines
More so, Mendoza’s demand for immediate resolution of his motion for reconsideration is not
without legal and compelling bases considering the following:
(a)PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for
alleged robbery (extortion), grave threats and physical injuries amounting to grave
misconduct allegedly committed against a certain Christian Kalaw. The same case,
however, was previously dismissed by the Manila City Prosecutors Office for lack of
probable cause and by the PNP-NCR Internal Affairs Service for failure of the complainant
(Christian Kalaw) to submit evidence and prosecute the case. On the other hand, the case
which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same
incident, was given due course by the City Prosecutors Office.
(b)The Ombudsman exercised jurisdiction over the case based on a letter issued motu
proprio Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the nominal
complainant, in lieu of Christian Kalaw. During the proceedings, Christian Kalaw did not
also affirm his complaint-affidavit with the Ombudsman or submit any position paper as
required. for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR—
without citing any reason—to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby showing undue interest on
the case. He also caused the docketing of the case and named Atty. Clarence V.
(c)Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for grave
misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009) based on
the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was not
previously sustained by the City Prosecutor’s Office and the PNP Internal Affairs Service.
From the said Resolution, Mendoza interposed a timely motion for reconsideration (dated
and filed November 5, 2009) as well as a supplement thereto. No opposition or comment
was filed thereto. 635
VOL. 679, SEPTEMBER 4, 2012 635
Philippines
(d)Despite the pending and unresolved motion for reconsideration, the judgment of dismissal
was enforced, thereby abruptly ending Mendoza’s 30 years of service in the PNP with
forfeiture of all his benefits. As a result, Mendoza sought urgent relief by sending several
hand-written letter-requests to the Ombudsman for immediate resolution of his motion for
reconsideration. But his requests fell on deaf ears.
x x x x
By allowing Mendoza’s motion for reconsideration to languish for nine long (9) months
without any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed
complete and wanton violation of the Ombudsman prescribed rule to resolve motions for
reconsideration in administrative disciplinary cases within five (5) days from submission (Sec. 8,
Ombudsman Rules of Procedure). The inaction is gross, there being no opposition to the motion
for reconsideration. Besides, the Ombudsman, without first resolving the motion for
reconsideration, arbitrarily enforced the judgment of dismissal and ignored the intervening
requests for immediate resolution, thereby rendering the inaction even more inexcusable and
unjust as to amount to gross negligence and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious
disregard of due process, manifest injustice and oppression in failing to provisionally suspend the
further implementation of the judgment of dismissal against Mendoza pending disposition of his
unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for reconsideration for
over nine months, the two Ombudsman officials acted with arbitrariness and without regard to
due process and the constitutional right of an accused to the speedy disposition of his case. As
long as his motion for reconsideration remained pending and unresolved, Mendoza was also
effectively deprived of the right to avail of the ordinary course of appeal or review to challenge
the judgment of dismissal before the higher courts and seek a temporary restraining order to
prevent the further execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it
should have provisionally suspended
636

ANNOTATED
Philippines
the further enforcement of the judgment of dismissal without prejudice to its reimplementation if the reconsideration
is eventually denied. Otherwise, the Ombudsman will benefit from its own inaction. Besides, the litigant is entitled
to a stay of the execution pending resolution of his motion for reconsideration. Until the motion for reconsideration
is denied, the adjudication process before the Ombudsman cannot be considered as completely finished and, hence,
the judgment is not yet ripe for execution.
x x x x
When the two Ombudsman officials received Mendoza’s demand for the release of the final
order resolving his motion for reconsideration, they should have performed their duty by
resolving the reconsideration that same day since it was already pending for nine months and the
prescribed period for its resolution is only five days. Or if they cannot resolve it that same day,
then they should have acted decisively by issuing an order provisionally suspending the further
enforcement of the judgment of dismissal subject to revocation once the reconsideration is
denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking.
Had they done so, the crisis may have ended peacefully, without necessarily compromising the
integrity of the institution. After all, as relayed to the negotiators, Mendoza did express
willingness to take full responsibility for the hostage-taking if his demand for release of the final
decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely offered to review a
pending motion for review of the case, thereby prolonging their inaction and aggravating the
situation. As expected, Mendoza—who previously berated Deputy Gonzales for allegedly
demanding Php150,000 in exchange for favorably resolving the motion for reconsideration—
rejected and branded as trash (“basura”) the Ombudsman [sic] letter promising review, triggering
the collapse of the negotiations. To prevent the situation from getting out of hand, the negotiators
sought the alternative option of securing before the PNP-NCRPO an order for Mendoza’s
provisional reinstatement pending resolution of the motion for reconsideration. Unfortunately, it
was already too late. But had the Ombudsman officials performed their duty under the law and
acted decisively, the entire crisis may have ended differently.
637
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Philippines
The RRC recommended that its findings with respect to petitioner Gonzales be referred to the Office of the
President (OP) for further determination of possible administrative offenses and for the initiation of the proper
administrative proceedings.
On October 15, 2010, the OP instituted a Formal Charge 15 against petitioner Gonzales for Gross Neglect of Duty
and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules
Implementing Book V of E.O. No. 292 and other pertinent Civil Service Laws, rules and regulations, and
for Misconduct in Office under Section 3 of the Anti-Graft and Corrupt Practices Act. 16 Petitioner filed his
Answer17thereto in due time.
Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated October 29,
2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal Affairs Board of the Office
of the Ombudsman charging petitioner with “directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between
the Government and any other party, wherein the public officer in his official capacity has to intervene under the
law” under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of
gifts under Section 7(d) of the Code of Conduct and Ethical Standards. 18 In a Joint Resolution19 dated February 17,
2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.
Gonzales III for violations of
_______________
15 Annex “Q,” id., at p. 322.
16 R.A. No. 3019.
17 Rollo (G.R. No. 196231), pp. 324-346.
18 R.A. No. 6713.
19 Annex “W,” Rollo (G.R. No. 196231), pp. 386-408.
638

ANNOTATED
Philippines
Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the complaint is hereby be
[sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.
Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the administrative
charge against him was to be conducted at the Office of the Deputy Executive Secretary for Legal Affairs
(ODESLA) on February 8, 2011. Petitioner Gonzales alleged, 21 however, that on February 4, 2011, he heard the
news that the OP had announced his suspension for one year due to his delay in the disposition of P/S Insp.
Mendoza’s motion for reconsideration. Hence, believing that the OP had already prejudged his case and that any
proceeding before it would simply be a charade, petitioner no longer attended the scheduled clarificatory conference.
Instead, he filed an Objection to Proceedings 22 on February 7, 2011. Despite petitioner’s absence, however, the OP
pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision, 23 the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales
III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and hereby
meted out the penalty of DISMISSALfrom service.
SO ORDERED.
Hence, the petition.
_______________
20 Annex “S,” id., at p. 377.
21 Petition, id., at p. 8.
22 Annex “V,” id., at pp. 380-383.
23 Annex “A,” id., at pp. 72-86.
639
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G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged Major General
Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia
and several unknown persons with Plunder (Criminal Case No. 28107) and Money Laundering (Criminal Case No.
SB09CRM0194) before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General Garcia’s urgent petition for bail holding that
strong prosecution evidence militated against the grant of bail. On March 16, 2010, however, the government,
represented by petitioner, Special Prosecutor Wendell Barreras-Sulit (“Barreras-Sulit”) and her prosecutorial staff
sought the Sandiganbayan’s approval of a Plea Bargaining Agreement (hereinafter referred to as “PLEBARA”)
entered into with the accused. On May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea
warranted and the PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia to get off the hook with nothing but a
slap on the hand notwithstanding the prosecution’s apparently strong evidence of his culpability for serious public
offenses, the House of Representatives’ Committee on Justice conducted public hearings on the PLEBARA. At the
conclusion of these public hearings, the Committee on Justice passed and adopted Committee Resolution No.
3,24recommending to the President the dismissal of petitioner Barreras-Sulit from the service and the filing of
appropriate charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal of public trust,
which are violations under the Anti-Graft and Cor-
_______________
24 Annex “B,” Rollo (G.R. No. 196232), pp. 27-30.
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rupt Practices Act and grounds for removal from office under the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In her written
explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of the OP with respect to the
administrative disciplinary proceeding against her. The OP, however, still proceeded with the case, setting it for
preliminary investigation on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS
DECISION IN VIOLATION OF PETITIONER’S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
OF JURISDICTION IN FINDING THAT PETITIONER COMMIT-
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TED DELAY IN THE DISPOSITION OF MENDOZA’S MOTION FOR RECONSIDERATION.
(D)
OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA’S
CASE.
(E)
OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA’S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA’S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F)
OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW
THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA. 25
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question—
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE
ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL
AND JUSTIFIABLE? 26
Re-stated, the primordial question in these two petitions is whether the Office of the President has jurisdiction to
exer-
_______________
25 Petition, Rollo (G.R. No. 196231), pp. 23-24.
26 Petition, Rollo (G.R. No. 196232), p. 10.
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cise administrative disciplinary power over a Deputy Ombudsman and a Special Prosecutor who belong to the
constitutionally-created Office of the Ombudsman.
Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the
President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they
belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor
therein, necessarily bear the constitutional attributes of said office.
The Court is not convinced.
The Ombudsman’s administrative disciplinary power over a Deputy Ombudsman and Special Prosecu-
tor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative investigations proceeds
from its constitutional mandate to be an effective protector of the people against inept and corrupt government
officers and employees,27 and is subsumed under the broad powers “explicitly conferred” upon it by the 1987
Constitution and R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term, which
literally means “agent” or “representative,” communicates the concept that has been carried on into the creation of
the modern-day ombudsman, that is, someone who acts as a neutral represen-
_______________
27 Ledesma v. Court of Appeals, 503 Phil. 396; 465 SCRA 437 (2005).
28 Office of the Ombudsman v. Masing and Tayactac, G.R. No. 165416, January 22, 2008, 542 SCRA 253.
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tative of ordinary citizens against government abuses. 29This idea of a people’s protector was first institutionalized in
the Philippines under the 1973 Constitution with the creation of the Tanodbayan, which wielded the twin powers of
investigation and prosecution. Section 6, Article XIII of the 1973 Constitution provided thus:
The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which
shall receive and investigate complaints relative to public office, including those in government-owned or
controlled corporations, make appropriate recommendations, and in case of failure of justice as defined
by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court
or body. 6. Sec.
The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with authority to “act
in a quick, inexpensive and effective manner on complaints against administrative officials”, and to function purely
with the “prestige and persuasive powers of his office” in correcting improprieties, inefficiencies and corruption in
government freed from the hampering effects of prosecutorial duties. 30 Accordingly, Section 13, Article XI of the
1987 Constitution enumerates the following powers, functions, and duties of the Office of the Ombudsman, viz.:
Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient. (1)
Direct, upon complaint or at its own instance, any public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as of any government-owned or con- (2)
_______________
29 De Leon, 2 Philippine Constitutional Law Principles and Cases, 855 (2004).
30 Bernas, S.J., The Intent of the 1986 Constitution Writers, 771 (1995).
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trolled corporation with original charter, to perform and expedite any act or duty required by law, or to
stop, prevent, and correct any abuse or impropriety in the performance of duties.
Direct the officer concerned to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance
therewith. (3)
Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided
by law, to furnish it with copies of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or properties, and report any irregularity to the
Commission on Audit for appropriate action. (4)
Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents. (5)
(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the observance of high standards of ethics and
efficiency. (7)
Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as
may be provided by law. (8) 31
Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of 1989, to
shore up the Ombudsman’s institutional strength by granting it “full administrative disciplinary power over public
officials and employees,”32 as follows:
21. Sec.Officials Subject to Disciplinary Authority; Exceptions.—The Office of the Ombudsman
shall have disciplinary author-
_______________
31 Id., at pp. 143-144.
32 Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October 20, 2010, 634 SCRA 135.
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ity over all elective and appointive officials of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was explicitly
conferred the statutory power to conduct administrative investigations under Section 19 of the same law, thus:
Administrative complaints.—The Ombudsman shall act on all complaints relating, but not limited, to
acts or omissions which: 19. Sec.
Are contrary to law or regulation; 1.
Are unreasonable, unfair, oppressive or discriminatory; 2.
Are inconsistent with the general course of an agency’s functions, though in accordance with law;
3.
Proceed from a mistake of law or an arbitrary ascertainment of facts; 4.
Are in the exercise of discretionary powers but for an improper purpose; or 5.
Are otherwise irregular, immoral or devoid of justification. 6.
While the Ombudsman’s authority to discipline administratively is extensive and covers all government
officials, whether appointive or elective, with the exception only of those officials removable by impeachment, the
members of congress and the judiciary, such authority is by no means exclusive. Petitioners cannot insist that they
should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while Section 21 declares
the Ombudsman’s disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of
646
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removal over a Deputy Ombudsman and a Special Prosecutor. Thus:
8. SectionRemoval; Filling of Vacancy.—
x x x x
A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process. (2)
It is a basic canon of statutory construction that in interpreting a statute, care should be taken that every part
thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of
conflicting provisions. A construction that would render a provision inoperative should be avoided; instead,
apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and harmonious
whole.33 Otherwise stated, the law must not be read in truncated parts. Every part thereof must be considered
together with the other parts, and kept subservient to the general intent of the whole enactment. 34
A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to the
inevitable conclusion that Congress had intended the Ombudsman and the President to exercise concurrent
disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special Prosecutor, respectively. This sharing
of authority goes into the wisdom of the legislature, which prerogative falls beyond the pale of
_______________
33 Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v. Executive Secretary Romulo ,
G.R. No. 160093, July 31, 2007, 528 SCRA 673, 682.
34 Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, 621
SCRA 461, citing Land Bank of the Philippines v. AMS Farming Corporation, 569 SCRA 154, 183 (2008) and Mactan-
Cebu International Airport Authority v. Urgello, 520 SCRA 515, 535 (2007).
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judicial inquiry. The Congressional deliberations on this matter are quite insightful, viz.:
x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President alone
has the power to remove the Deputy Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he can be
removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman may
try to protect one another. The Chair suggested the substitution of the phrase “after due process” with the
words after due notice and hearing with the President as the ultimate authority.
Senator Guingona contended, however, that the Constitution provides for an independent Office of
the [T]anodbayan[,] and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair’s observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance. 35
Indubitably, the manifest intent of Congress in enacting both provisions—Section 8(2) and Section 21—in the
same Organic Act was to provide for an external authority, through the person of the President, that would exercise
the power of administrative discipline over the Deputy Ombudsman and Special Prosecutor without in the least
diminishing the constitutional and plenary authority of the Ombudsman over all
_______________
35 See Comment of the Office of the Solicitor General, Rollo (G.R. No. 196231), pp. 709-710.
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government officials and employees. Such legislative design is simply a measure of “check and balance” intended to
address the lawmakers’ real and valid concern that the Ombudsman and his Deputy may try to protect one another
from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the Ombudsman on
the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of shared authority in Hagad v.
Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue City, and a member of the Sangguniang
Panlungsod, were charged before the Office of the Deputy Ombudsman for the Visayas with violations of R.A. No.
3019, R.A. No. 6713, and the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman
had been divested of his authority to conduct administrative investigations over said local elective officials by virtue
of the subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent provision of
which states:
61. Sec.Form and Filing of Administrative Complaints.—A verified complaint against any erring local
elective official shall be prepared as follows:
A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President. (a)
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General that R.A. No.
7160 should be viewed as having conferred on the Office of the President, but not on an exclusive basis, disciplinary
authority over local elective officials. Despite the fact that R.A. No. 7160 was the more recent expression of
legislative will, no repeal of pertinent provisions in the Ombudsman Act was inferred therefrom. Thus said the
Court:
_______________
36 321 Phil. 604; 251 SCRA 242 (1995).
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Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific
matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and
strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that
courts must generally assume their congruent application. The two laws must be absolutely incompatible,
and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is
expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws
on the subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against any
implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the
subject. 37
While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to discipline elective
officials over the same disciplinary authority of the President under R.A. No. 7160, the more recent case of
the Office of the Ombudsman v. Delijero 39 tempered the exercise by the Ombudsman of such plenary power invoking
Section 23(2)40 of R.A. No. 6770, which gives the Ombudsman the option to “refer certain complaints to the proper
disciplinary authority for the
_______________
37 Id., at pp. 613-614; pp. 251-252.
38 Id.
39 Supra note 31.
40 23. SectionFormal Investigation.—
x x x x
At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees, which shall be
determined within the period prescribed in the civil service law. x x x (2)
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institution of appropriate administrative proceedings against erring public officers or employees.” The Court
underscored therein the clear legislative intent of imposing “a standard and a separate set of procedural requirements
in connection with administrative proceedings involving public school teachers” 41 with the enactment of R.A. No.
4670, otherwise known as “The Magna Carta for Public School Teachers.” It thus declared that, while the
Ombudsman’s administrative disciplinary authority over a public school teacher is concurrent with the proper
investigating committee of the Department of Education, it would have been more prudent under the circumstances
for the Ombudsman to have referred to the DECS the complaint against the public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete out
administrative sanctions upon them, including the extreme penalty of dismissal from the service. However, it is
equally without question that the President has concurrent authority with respect to removal from office of the
Deputy Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the principles attending
concurrence of jurisdiction where the Office of the President was the first to initiate a case against petitioner
Gonzales, prudence should have prompted the Ombudsman to desist from proceeding separately against petitioner
through its Internal Affairs Board, and to defer instead to the President’s assumption of authority, especially when
the administrative charge involved “demanding and soliciting a sum of money” which constitutes either graft and
corruption or bribery, both of which are grounds reserved for the President’s exercise of his authority to remove a
Deputy Ombudsman.
In any case, assuming that the Ombudsman’s Internal Affairs Board properly conducted a subsequent and
parallel administrative action against petitioner, its earlier dismissal
_______________
41 Supra note 31, at p. 146.
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of the charge of graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all, the doctrine
of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative
powers.42In Montemayor v. Bundalian,43 the Court sustained the President’s dismissal from service of a Regional
Director of the Department of Public Works and Highways (DPWH) who was found liable for unexplained wealth
upon investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court
categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did not
operate as res judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a Special
Prosecutor, Congress merely filled
an obvious gap in the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the Ombudsman
and his Deputies, viz.:
The Ombudsman and his Deputies shall be appointed by the President from a list of at least six
nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy
thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three
months after they occur. 9. Section
While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by im-
_______________
42 Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405 SCRA 264.
43 Id.
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peachment under Section 244 of the same Article, there is, however, no constitutional provision similarly dealing with
the removal from office of a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section 8(2)
of R.A. 6770, Congress simply filled a gap in the law without running afoul of any provision in the Constitution or
existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of
all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.
That the Deputies of the Ombudsman were intentionally excluded from the enumeration of impeachable officials
is clear from the following deliberations45 of the Constitutional Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10,
regarding the Ombudsman, there
has been concern aired by
Commissioner Rodrigo about who
will see to it that the Ombudsman
will perform his duties because he
is something like a guardian of
the government. This recalls the
statement of Juvenal that while
the Ombudsman is the guardian
of the people, “Quis custodiet
ipsos custodies”, who will guard
the guardians? I understand
here that the Ombudsman
who has the rank of a
chairman of a constitutional
commission is also removable
only by impeachment.
_______________
44 The President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the 2.
Sec. Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment.
45 As quoted in Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 493 Phil. 63, 77-80; 452 SCRA 714, 728-730 (2005).
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MR. ROMULO. That is the intention, Madam
President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am
concerned with the phrase
“have the rank of”. We know,
for instance, that the City
Fiscal of Manila has the rank
of a justice of the Intermediate
Appellate Court, and yet he is
not a part of the judiciary. So I
think we should clarify that also
and read our discussions into
the Record for purposes of the
Commission and the
Committee. 46
x x x
THE PRESIDENT. The purpose of the
amendment of Commissioner
Davide is not just to include
the Ombudsman among those
officials who have to be
removed from office only on
impeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the
amendment, may I ask a
question?
THE PRESIDENT. Commissioner Rodrigo is
recognized.
MR. RODRIGO. The Ombudsman, is this only
one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47
(Emphasis supplied)
_______________
46 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274.
47 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, p. 305.
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The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is Im-
plied from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove. 48 As a general rule,
therefore, all officers appointed by the President are also removable by him. 49 The exception to this is when the law
expressly provides otherwise—that is, when the power to remove is expressly vested in an office or authority other
than the appointing power. In some cases, the Constitution expressly separates the power to remove from the
President’s power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme
Court and judges of lower courts shall be appointed by the President. However, Members of the Supreme Court may
be removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower
courts may be removed only by the Supreme Court by virtue of its administrative supervision over all its personnel
(Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission [Section
1(2), Article IX(B)], the Commission on Elections [Section 1(2), Article IX(C)], and the Commission on Audit
[Section 1(2), Article IX(D)] shall likewise be appointed by the President, but they may be removed only by
impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President
(Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid
down in express terms an authority that is already implied from the
_______________
48 Aguirre, Jr. v. De Castro, 378 Phil. 714; 321 SCRA 95 (1999).
49 Cruz, Carlo L., The Law of Public Officers, 154-155 (1992).
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President’s constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.
The Office of the Ombudsman is charged with monumental tasks that have been generally categorized into
investigatory power, prosecutorial power, public assistance, authority to inquire and obtain information and the
function to adopt, institute and implement preventive measures. 50 In order to ensure the effectiveness of his
constitutional role, the Ombudsman was provided with an over-all deputy as well as a deputy each for Luzon,
Visayas and Mindanao. However, well into the deliberations of the Constitutional Commission, a provision for the
appointment of a separate deputy for the military establishment was necessitated by Commissioner Ople’s lament
against the rise within the armed forces of “fraternal associations outside the chain of command” which have
become the common soldiers’ “informal grievance machinery” against injustice, corruption and neglect in the
uniformed service,51 thus:
In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank and
neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of RAM has
kept precincts for pushing logistics to the field, the implied accusation being that most of the resources
are used up in Manila instead of sent to soldiers in the field. The Guardians, the El Diablo and other
organizations dominated by enlisted men function, more or less, as grievance collectors and as mutual aid
societies.
_______________
50 Sec. 13, Article XI; De Leon, Hector, 2 Philippine Constitutional Law, 860 (2004), citing Concerned Officials of the
MWSS v. Velasquez, 310 Phil. 549; 240 SCRA 502 (1995) and Garcia-Rueda v. Pascasio, 344 Phil. 323; 278 SCRA 769 (1997).
51 Bernas, S.J., The Intent of the 1986 Constitution Writers, 773-774 (1995).
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This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to
higher authorities. This deputy will, of course work in close cooperation with the Minister of National
Defense because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers,
when they know they can turn to a military Ombudsman for their complaints, may not have to fall back
on their own informal devices to obtain redress for their grievances. The Ombudsman will help raise
troop morale in accordance with a major professed goal of the President and the military authorities
themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:
There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to
be known as Tanodbayan, one over-all Deputy and at least one Deputy each for Luzon, Visayas and
Mindanao. 5. Section A separate deputy for the military establishment shall likewise be appointed.
(Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog looking into
abuses and irregularities that affect the general morale and professionalism in the military is certainly of primordial
importance in relation to the President’s own role as Commander-in-Chief of the Armed Forces. It would not be
incongruous for Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy
Ombudsman for the military and other law enforcement offices.
Granting the President the Power to
Remove a Deputy Ombudsman does
not Diminish the Independence of
the Office of the Ombudsman.
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The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman
from office totally frustrates, if not resultantly negates the independence of the Office of the Ombudsman is tenuous.
The independence which the Office of the Ombudsman is vested with was intended to free it from political
considerations in pursuing its constitutional mandate to be a protector of the people. What the Constitution secures
for the Office of the Ombudsman is, essentially, political independence. This means nothing more than that “the
terms of office, the salary, the appointments and discipline of all persons under the office” are “reasonably insulated
from the whims of politicians.” 52 And so it was that Section 5, Article XI of the 1987 Constitution had declared the
creation of the independent Office of the Ombudsman, composed of the Ombudsman and his Deputies, who are
described as “protectors of the people” and constitutionally mandated to act promptly on complaints filed in any
form or manner against public officials or employees of the Government [Section 12, Article XI]. Pertinent
provisions under Article XI prescribes a term of office of seven years without reappointment [Section 11], prohibits
a decrease in salaries during the term of office [Section 10], provides strict qualifications for the office [Section 8],
grants fiscal autonomy [Section 14] and ensures the exercise of constitutional functions [Sections 12 and 13]. The
cloak of independence is meant to build up the Office of the Ombudsman’s institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog 53 and protector of the people. It certainly
cannot be made to extend to wrongdoings and permit the unbridled acts of its officials to escape administrative
discipline.
_______________
52 De Leon, 2 Philippine Constitutional Law Principles and Cases, 857 (2004), citing Del. R.D. ROBLES, The
Ombudsman, in C.R. Montejo, On the 1973 Constitution, 232.
53 Id., at pp. 859-860.
658
ANNOTATED
Philippines
Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political influences
and the discretionary acts of the executive, Congress laid down two restrictions on the President’s exercise of such
power of removal over a Deputy Ombudsman, namely: (1) that the removal of the Deputy Ombudsman must be for
any of the grounds provided for the removal of the Ombudsman and (2) that there must be observance of due
process. Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution,
paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the
same grounds that the Ombudsman may be removed through impeachment, namely, “culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Thus, it cannot
be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that
matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman. It is,
precisely, a measure of protection of the independence of the Ombudsman’s Deputies and Special Prosecutor in the
discharge of their duties that their removal can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman’s independence
in this wise—
The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To
insulate the Office from outside pressure and improper influence, the Constitution as well as RA 6770 has
endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative,
executive or judicial intervention. This Court consistently refrains from interfering with the exercise of its
powers, and respects the initiative and independ-
_______________
54 397 Phil. 829, 831; 343 SCRA 744, 746 (2000), cited in Angeles v. Desierto, 532 Phil. 647, 656; 501 SCRA 202, 211
(2006).
659
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ence inherent in the Ombudsman who, ‘beholden to no one, acts as the champion of the people and the
preserver of the integrity of public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the President’s power to remove the Deputy
Ombudsman and Special Prosecutor, we now go to the substance of the administrative findings in OP Case No. 10-
J-460 which led to the dismissal of herein petitioner, Deputy Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP proceeded
with the administrative case against him despite his non-attendance thereat. Petitioner was admittedly able to file an
Answer in which he had interposed his defenses to the formal charge against him. Due process is satisfied when a
person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative
proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements of due process. 55 Due process is simply having the
opportunity to explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained of. 56
The essence of due process is that a party is afforded reasonable opportunity to be heard and to submit any
evidence
_______________
55 Cayago v. Lina, 489 Phil. 735; 449 SCRA 29 (2005).
56 Libres v. NLRC, 367 Phil. 180; 307 SCRA 675 (1999).
660
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he may have in support of his defense. 57 Mere opportunity to be heard is sufficient. As long as petitioner was
given the opportunity to explain his side and present evidence, the requirements of due process are satisfactorily
complied with because what the law abhors is an absolute lack of opportunity to be heard. 58 Besides, petitioner only
has himself to blame for limiting his defense through the filing of an Answer. He had squandered a subsequent
opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows—
It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to
explain his side and answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance, this
Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent’s express election of
a formal investigation. Despite due notice, however, respondent Deputy Ombudsman refused to appear
for said conference, interposing an objection based on the unfounded notion that this Office has prejudged
the instant case. Respondent having been given actual and reasonable opportunity to explain or defend
himself in due course, the requirement of due process has been satisfied. 59
In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60which is
_______________
57 Concerned Officials of MWSS v. Vasquez, 310 Phil. 549; 240 SCRA 502 (1995).
58 AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633, 654
citing Casimiro v. Tandog, 498 Phil. 660, 666; 459 SCRA 624, 631 (2005).
59 OP Decision, p. 7, Rollo (G.R. No. 196231), p. 78.
60 Funa, Dennis B., The Law on the Administrative Accountability of Public Officers, 509 (2010), citing Office of
the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25, 1994, 235 SCRA
661
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more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.61 The fact, therefore, that petitioner later refused to participate in the hearings before the OP is
not a hindrance to a finding of his culpability based on substantial evidence, which only requires that a decision
must “have something upon which it is based.”62
Factual findings of administrative bodies are controlling when supported by substantial evidence. 63 The OP’s
pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding
penalty of removal from office was based on the finding of gross neglect of duty and grave misconduct in office
amounting to a betrayal of public trust, which is a constitutional ground for the removal by impeachment of the
Ombudsman (Section 2, Article XI, 1987 Constitution), and a statutory ground for the President to remove from
office a Deputy Ombudsman and a Special Prosecutor [Section 8(2) of the Ombudsman Act].
The OP held that petitioner’s want of care and wrongful conduct consisted of his unexplained action in directing
the PNP-NCR to elevate P/S Insp. Mendoza’s case records to his office; his failure to verify the basis for requesting
the Ombudsman to take over the case; his pronouncement of administrative liability and imposition of the extreme
penalty of dismissal on P/S Insp. Mendoza based upon an unverified complaint-affidavit; his inordinate haste in
implementing P/S Insp. Mendoza’s dismissal notwithstanding the latter’s non-
_______________
588; Tolentino v. Court of Appeals, 234 Phil. 28; 150 SCRA 26 (1987), Biak na Bato Mining Co. v. Tanco, 271 Phil.
339; 193 SCRA 323 (1991).
61 Rules of Court, Rule 133, Sec. 5; Nicolas v. Desierto, 488 Phil. 158; 447 SCRA 154 (2004); Ang Tibay v. Court of
Industrial Relations, 69 Phil. 635 (1940).
62 Supra note 60, at p. 511.
63 Dadubo v. Civil Service Commission, G.R. No. 106498, June 28, 1993, 223 SCRA 747.
662
ANNOTATED
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receipt of his copy of the Decision and the subsequent filing of a motion for reconsideration; and his apparent
unconcern that the pendency of the motion for reconsideration for more than five months had deprived P/S Insp.
Mendoza of available remedies against the immediate implementation of the Decision dismissing him from the
service.
Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence of petitioner
in his Answer as well as other documentary evidence, the OP concluded that: (1) petitioner failed to supervise his
subordinates to act with dispatch on the draft resolution of P/S Insp. Mendoza’s motion for reconsideration and
thereby caused undue prejudice to P/S Insp. Mendoza by effectively depriving the latter of the right to challenge the
dismissal before the courts and prevent its immediate execution, and (2) petitioner showed undue interest by having
P/S Insp. Mendoza’s case endorsed to the Office of the Ombudsman and resolving the same against P/S Insp.
Mendoza on the basis of the unverified complaint affidavit of the alleged victim Christian Kalaw.
The invariable rule is that administrative decisions in matters within the executive jurisdiction can only be set
aside on proof of gross abuse of discretion, fraud, or error of law. 64 In the instant case, while the evidence may show
some amount of wrongdoing on the part of petitioner, the Court seriously doubts the correctness of the OP’s
conclusion that the imputed acts amount to gross neglect of duty and grave misconduct constitutive of betrayal of
public trust. To say that petitioner’s offenses, as they factually appear, weigh heavily enough to constitute betrayal
of public trust would be to ignore the significance of the legislature’s intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for
_______________
64 Assistant Executive Secretary for Legal Affairs of the Office of the President v. Court of Appeals , 251 Phil. 26; 169
SCRA 27 (1989), citing Lovina v. Moreno, 118 Phil. 1401; 9 SCRA 557 (1963).
663
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the most serious violations that justify the removal by impeachment of the highest officials of the land.
Would every negligent act or misconduct in the performance of a Deputy Ombudsman’s duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a deeper,
circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman and a Special Prosecutor
vis-à-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the existing
grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes.
While it was deemed broad enough to cover any violation of the oath of office, 65 the impreciseness of its definition
also created apprehension that “such an overarching standard may be too broad and may be subject to abuse and
arbitrary exercise by the legislature.”66Indeed, the catch-all phrase betrayal of public trust that referred to “all acts
not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office” 67 could be
easily utilized for every conceivable misconduct or negligence in office. However, deliberating on some workable
standard by which the ground could be reasonably interpreted, the Constitutional Commission recognized that
human error and good faith precluded an adverse conclusion.
x x x One last matter with respect to the use of the words “betrayal of public trust” as embodying a ground for
impeachment that has been raised by the Honorable Regalado. I am not a lawyer so I can anticipate the difficulties
that a layman may encounter in understanding this provision and also the possible abuses MR. VILLACORTA:
_______________
65 Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary, 992 (1996).
66 Records of the 1986 Constitutional Commission, Vol. II, p. 286.
67 Supra note at p. 65.
664

ANNOTATED
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that the legislature can commit in interpreting this phrase. It is to be noted that this ground was also suggested in the 1971
Constitutional Convention. A review of the Journals of that Convention will show that it was not included; it was
construed as encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of
discretionary powers. I understand from the earlier discussions that these constitute violations of the oath of office,
and also I heard the Honorable Davide say that even the criminal acts that were enumerated in the earlier 1973
provision on this matter constitute betrayal of public trust as well. In order to avoid confusion, would it not be
clearer to stick to the wording of Section 2 which reads: “may be removed from office on impeachment for and
conviction of, culpable violation of the Constitution, treason, bribery, and other high crimes, graft and corruption or
VIOLATION OF HIS OATH OF OFFICE”, because if betrayal of public trust encompasses the earlier acts that
were enumerated, then it would behoove us to be equally clear about this last provision or phrase.
x x x I think we will miss a golden opportunity if we fail to adopt the words “betrayal of public trust” in the 1986
Constitution. But I would like him to know that we are amenable to any possible amendment. Besides, I think
MR. NOLLEDO: plain error of judgment, where circumstances may indicate that there is good faith, to my
mind, will not constitute betrayal of public trust if that statement will allay the fears of difficulty in interpreting
the term.”68 (Emphasis supplied)
The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public
trust to refer to “[a]cts which are just short of being criminal but con-
_______________
68 Records of the 1986 Constitutional Commission, Vol. II, pp. 283-284.
665
VOL. 679, SEPTEMBER 4, 2012 665
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stitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism,
and gross exercise of discretionary powers.” 69 In other words, acts that should constitute betrayal of public trust as to
warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and
seriousness as the other grounds for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by providing for their
removal from office on the same grounds as removal by impeachment, the legislature could not have intended to
redefine constitutional standards of culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, as well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of
public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain
errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory grounds for the
removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of their
nature nor the acuity of their scope. Betrayal of public trust could not suddenly “overreach” to cover acts that are not
vicious or malevolent on the same level as the other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system
failure of government response. It cannot be solely attributed then to what petitioner Gonzales may have negligently
failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition
thereof. Neither should petitioner’s official acts in the resolution of P/S Insp. Mendoza’s case be judged based upon
the resulting deaths at the
_______________
69 Id., at p. 286.
666
ANNOTATED
Philippines
Quirino Grandstand. The failure to immediately act upon a party’s requests for an early resolution of his case is not,
by itself, gross neglect of duty amounting to betrayal of public trust. Records show that petitioner took considerably
less time to act upon the draft resolution after the same was submitted for his appropriate action compared to the
length of time that said draft remained pending and unacted upon in the Office of Ombudsman Merceditas N.
Gutierrez. He reviewed and denied P/S Insp. Mendoza’s motion for reconsideration within nine (9) calendar days
reckoned from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his
recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter’s final action. Clearly, the
release of any final order on the case was no longer in his hands.
Even if there was inordinate delay in the resolution of P/S Insp. Mendoza’s motion and an unexplained failure
on petitioner’s part to supervise his subordinates in its prompt disposition, the same cannot be considered a vicious
and malevolent act warranting his removal for betrayal of public trust. More so because the neglect imputed upon
petitioner appears to be an isolated case.
Similarly, petitioner’s act of directing the PNP-IAS to endorse P/S Insp. Mendoza’s case to the Ombudsman
without citing any reason therefor cannot, by itself, be considered a manifestation of his undue interest in the case
that would amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon the request of
concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the
Ombudsman to be the “champion of the people.” The factual circumstances that the case was turned over to the
Office of the Ombudsman upon petitioner’s request; that administrative liability was pronounced against P/S Insp.
Mendoza even without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsidera-
667
VOL. 679, SEPTEMBER 4, 2012 667
Philippines
tion thereof remained pending for more than nine months cannot be simply taken as evidence of petitioner’s undue
interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with
any of the parties to the case that could have impelled him to act as he did. There was likewise no evidence at all of
any bribery that took place, or of any corrupt intention or questionable motivation.
Accordingly, the OP’s pronouncement of administrative accountability against petitioner and the imposition
upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty
or misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested
with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing
of the grave and serious kind amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for his acts showing less than diligent
performance of official duties. Although the administrative acts imputed to petitioner fall short of the constitutional
standard of betrayal of public trust, considering the OP’s factual findings of negligence and misconduct against
petitioner, the Court deems it appropriate to refer the case to the Office of the Ombudsman for further investigation
of the charges in OP Case No. 10-J-460 and the imposition of the corresponding administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled to
reinstatement to his former position as Deputy Ombudsman and to the payment of backwages and benefits
corresponding to the period of his suspension.
The Office of the President is
vested with statutory authority to
proceed administratively against668
ANNOTATED
Philippines
petitioner Barreras-Sulit to de-
termine the existence of any of the
grounds for her removal from of-
fice as provided for under the Con-
stitution and the Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the President’s authority to remove her from
office upon the averment that without the Sandiganbayan’s final approval and judgment on the basis of the
PLEBARA, it would be premature to charge her with acts and/or omissions “tantamount to culpable violations of
the Constitution and betrayal of public trust,” which are grounds for removal from office under Section 8, paragraph
(2) of the Ombudsman Act of 1989; and which also constitute a violation of Section 3, paragraph (e) of Republic
Act No. 3019 (Anti-Graft and Corrupt Practices Act)—causing undue injury to the Government or giving any
private party any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or
gross inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent, petitioner
Barreras-Sulit asserts that the propriety of taking and continuing to take administrative disciplinary proceeding
against her must depend on the final disposition by the Sandiganbayan of the PLEBARA, explaining that if the
Sandiganbayan would uphold the PLEBARA, there would no longer be any cause of complaint against her; if not,
then the situation becomes ripe for the determination of her failings.
The argument will not hold water. The incidents that have taken place subsequent to the submission in court of
the PLEBARA shows that the PLEBARA has been practically approved, and that the only thing which remains to be
done by the Sandiganbayan is to promulgate a judgment imposing the proper sentence on the accused Major General
Garcia based on his new pleas to lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring
that the change of plea under the PLEBARA was warranted and that it com-
669
VOL. 679, SEPTEMBER 4, 2012 669
Philippines
plied with jurisprudential guidelines. The Sandiganbayan, thereafter, directed the accused Major General Garcia to
immediately convey in favor of the State all the properties, both real and personal, enumerated therein. On August
11, 2010, the Sandiganbayan issued a resolution, which, in order to put into effect the reversion of Major General
Garcia’s ill-gotten properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special Prosecutor (OSP)
informed the Sandiganbayan that an Order 70 had been issued by the Regional Trial Court of Manila, Branch 21 on
November 5, 2010 allowing the transfer of the accused’s frozen accounts to the Republic of the Philippines pursuant
to the terms of the PLEBARA as approved by the Sandiganbayan. Immediately after the OSP informed the
Sandiganbayan that its May 4, 2010 Resolution had been substantially complied with, Major General Garcia
manifested71 to the Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia’s Motion to Dismiss, 72 dated December
16, 2010 and filed with the Sandiganbayan, reads:
The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused MGen.
Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the act of the
others. Therefore, with the approval by the Honorable Court of the Plea Bargaining Agreement executed
by the Principal Accused, the charges against the Co-Accused should likewise be dismissed since the
charges against them are anchored on the same charges against the Principal Accused. 1.0
_______________
70 Annex “2” of the Supplemental Comment on the Petition, Rollo(G.R. No. 196232), p. 212.
71 Annex “1,” id., at pp. 210-211.
72 Annex “3,” id., at pp. 213-215.
670
ANNOTATED
Philippines
On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty to the lesser
offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended. Upon Major General Garcia’s
motion, and with the express conformity of the OSP, the Sandiganbayan allowed him to post bail in both cases, each
at a measly amount of P30,000.00.
The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an administrative
finding of liability against petitioner Barreras-Sulit. While the court’s determination of the propriety of a plea
bargain is on the basis of the existing prosecution evidence on record, the disciplinary authority’s determination of
the prosecutor’s administrative liability is based on whether the plea bargain is consistent with the conscientious
consideration of the government’s best interest and the diligent and efficient performance by the prosecution of its
public duty to prosecute crimes against the State. Consequently, the disciplining authority’s finding of ineptitude,
neglect or willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit,
in failing to pursue or build a strong case for the government or, in this case, entering into an agreement which the
government finds “grossly disadvantageous,” could result in administrative liability, notwithstanding court approval
of the plea bargaining agreement entered into.
Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a mutually
satisfactory disposition of the case subject to court approval. 73 The essence of a plea bargaining agreement is the
allowance of an accused to plead guilty to a lesser offense than that charged against him. Section 2, Rule 116 of the
Revised Rules of Criminal Procedure provides the procedure therefor, to wit:
_______________
73 Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233, citing People v. Villarama, Jr.,
210 SCRA 246, 251-252 (1992).
671
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Philippines
2. SEC.Plea of guilty to a lesser offense.—At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged. After arraignment but before trial, the accused may
still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No
amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the guilt of the
accused of the crime charged. 74 However, if the basis for the allowance of a plea bargain in this case is the evidence
on record, then it is significant to state that in its earlier Resolution 75 promulgated on January 7, 2010, the
Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared that “the
conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that
militates against the grant of bail.”
Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea bargain with
the accused Major General Garcia as if its evidence were suddenly insufficient to secure a conviction. At this
juncture, it is not amiss to emphasize that the “standard of strong evidence of guilt which is sufficient to deny bail to
an accused is markedly higher than the standard of judicial probable cause which is sufficient to initiate a criminal
case.”76 Hence, in light of the apparently strong case against accused Major General Garcia, the disciplining
authority would be hardpressed not to look
_______________
74 People v. Villarama, Jr., G.R. No. 99287, June 23, 1992, 210 SCRA 246; People v. Parohinog, 185 Phil. 266; 96
SCRA 373 (1980); People v. Kayanan, 172 Phil. 728; 83 SCRA 437 (1978).
75 Annex “7” of the Supplemental Comment on the Petition, Rollo(G.R. No. 196232), pp. 225-268.
76 Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 608; Cabrera v. Marcelo, 487 Phil. 427;
446 SCRA 207 (2004).
672
ANNOTATED
Philippines
into the whys and wherefores of the prosecution’s turnabout in the case.
The Court need not touch further upon the substantial matters that are the subject of the pending administrative
proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete and effective resolution of the
administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed to obtain
the necessary votes to invalidate the law, thus, keeping said provision part of the law of the land. To recall, these
cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the Ombudsman Act; and (b) the
validity of the administrative action of removal taken against petitioner Gonzales. While the Court voted
unanimously to reverse the decision of the OP removing petitioner Gonzales from office, it was equally divided in
its opinion on the constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012
and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore, dismisses the
challenge to the constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the Members of
the Court actually taking part in the deliberations to sustain any challenge to the constitutionality or validity of a
statute or any of its provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is
REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension effective immediately even as the Office of the Ombudsman is
directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232,
We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for
alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in
accordance with Section 8(2) of the Ombudsman Act of 1989.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.
SO ORDERED.
Sereno (C.J.), Peralta, Del Castillo, Villarama, Jr.,
Mendoza and Reyes, JJ., concur.
Velasco, Jr. J., I join dissent of J. Brion.
Leonardo-De Castro, J., I join the dissent of Justice Brion.
Brion, J., See my Dissent.
Bersamin, J., I join the dissent of J. Brion and J. Abad.
Abad, J., See my dissenting opinion.
Perez, J., I join dissent of J. Brion.
CONCURRING OPINION
CARPIO,J.:
Our Constitution does not impart a fixed and rigid concept of independence among the offices that it creates.
While it declares certain bodies as “‘independent”, we cannot assume that the independence of the Ombudsman 1is
the same as the
_______________
1 CONSTITUTION, Art. XI, Sec. 5: There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over all Deputy and at least one
674
ANNOTATED
Philippines
independence of the Judiciary. Neither is the independence of the Constitutional Commissions the same as that of
the National Economic and Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human
Rights.2 This Court cannot make a “one size fits all” concept of independence because the Constitution itself
differentiates the degree of independence of these bodies.
In this case, the petitions seek to strike down Section 8(2) of Republic Act No. 6170 or the Ombudsman Act of
1989 which delegates to the President the power to remove a Deputy Ombudsman or the Special Prosecutor “for any
of the grounds provided for the removal of the Ombudsman, and after due process.” The provision allegedly
compromises the independence of the Ombudsman by imposing an external disciplinary authority, namely the
President.
I agree with the ponencia that Section 8(2) of the Ombudsman Act does not violate the Constitution. The
constitutional principle of independence does not obviate the possibility of a check from another body. After all, one
of the constitutive principles of our constitutional structure is the system of checks and balances—a check that is not
within a body, but outside of it. This is how our democracy operates—on the basis of distrust.3
I.
Section 2, Article XI of the 1987 Constitution prescribes how all public officers and employees, both
impeachable and non-impeachable, may be removed. Section 2 provides:
_______________
Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed.
2 These are the bodies that the 1987 Constitution considers as “independent.” See CONSTITUTION, Art. IX-A, Sec. I;
Art. XII, Secs. 9 and 20: Art. XIII, Sec. 17.
3 See J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW(2002).
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The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal
of public trust. All other public officers and employees may be removed from office as provided by
law, but not by impeachment. (Boldfacing and underscoring supplied)
Section 2 of Article XI consists of two parts. The first sentence identifies the public officials who are subject to
removal only by impeachment. The second sentence explicitly leaves to the discretion of Congress, through an
implementing law, the removal of all other public officers and employees. In other words, by stating that all
other non-impeachable officers and employees “may be removed from office as provided by law”—the
Constitution expressly grants to Congress the power to determine the manner and cause of removal,
including who will be the disciplinary authority, of non-impeachable officers and employees. Clearly, Section
8(2) of the Ombudsman Act is valid and constitutional since Congress is expressly empowered to legislate such law
pursuant to Section 2, Article XI of the Constitution.
The original text of Section 24 of Article XI did not include the second sentence. 5 Its subsequent inclusion was
only meant to exclude “all other public officers and employees” from removal through impeachment. Otherwise,
Congress would have the plenary power to remove public officers and employees through impeachment or through
any other mode of removal. Thus, at the outset, the framers of the 1987 Constitution saw no need to textualize this
power—for it was already taken for granted as part of the plenary power of Congress.
_______________
4 As amended and consolidated by the Committee on Accountability of Public Officers of the 1986 Constitutional
Commission.
5 II RECORD, CONSTITUTIONAL COMMISSION 263 (26 July 1986).
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However, to limit this plenary power of Congress, the framers expressly excluded impeachment as a mode of
removing “all other public officers and employees.”
This Court has repeatedly declared that the Constitution “confer[s] plenary legislative x x x powers subject only
to limitations provided in the Constitution.” 6Thus, in inserting the second sentence in Section 8(2), Article XI of the
1987 Constitution, the framers intended to limit impeachment only to public officers enumerated in the first sentence
of Section 2:
MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as already amended the
following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM
OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason for the amendment is
this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the
legislature as it stands now from providing also that other officers not enumerated therein shall also
be removable only by impeachment, and that has already happened.
Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be
removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are,
therefore, a privileged class on the level of the Supreme Court. In the Committee on Constitutional
Commissions and Agencies, there are many commissions which are sought to be constitutionalized–if I
may use the phrase—and the end result would be that if they are constitutional commissions, the
commissioners there could also be removed only by impeachment. What is there to prevent the
Congress later—because of the lack of this sentence that I am seeking to add—from providing that
officials of certain offices, although nonconstitutional, cannot also be removed except by
impeachment?
_______________
6 Marcos v. Manglapus, 258 Phil. 479, 499; 177 SCRA 668, 689 (1989); Vera v. Avelino, G.R. No. L-543, 31 August 1946,
77 Phil. 192; Ople v. Torres, G.R. No. 127685, 23 July 1998, 354 Phil. 948; 293 SCRA 141.
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THE PRESIDING OFFICER (Mr. Treñas). What does the Committee say on the proposed amendment of
Commissioner Regalado?
MR. MONSOD. May we ask Commissioner Regalado a few questions?
Does this mean that with this provision, the other officers in the case of the Sandiganbayan would not be
removable by impeachment?
MR. REGALADO. For the present and during the interim and until the new Congress amends P.D. No.
1606, that provision still stands. But the proposed amendment will not prevent the legislature from
subsequently repealing or amending that portion of the law. Also, it will prevent the legislature from
providing for favoured public officials as not removable except by impeachment.
MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the amendment of
Commissioner Regalado.
THE PRESIDING OFFICER (Mr. Treñas). The proposed amendment of Commissioner Regalado has
been accepted by the Committee. (Emphasis supplied)
7
Clearly, Congress has the power and discretion to delegate to the President the power to remove a Deputy
Ombudsman or the Special Prosecutor under Section 8(2) of the Ombudsman Act. While the 1987 Constitution
already empowers the Ombudsman to investigate 8 and to recommend to remove 9 a Deputy Ombudsman and the
Special Prosecutor, this does not preclude Congress from providing other modes of removal.
_______________
7 II RECORD, CONSTITUTIONAL COMMISSION 356-357 (28 July 1986).
8 CONSTITUTION, Art. XI, Sec. 13(1): Investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
9 CONSTITUTION, Art. XI, Sec. 13(3): Direct the officer concerned to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith. (Emphasis supplied)
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The Deputy Ombudsman and the Special Prosecutor are not among the impeachable officers under the 1987
Constitution. Thus, as expressly provided in Section 2, Article XI of the Constitution, they “ may be removed from
office as provided by law.” Congress, pursuant to this constitutional provision and in the exercise of its plenary
power, enacted the Ombudsman Act, conferring on the President the power to remove the Deputy Ombudsman and
the Special Prosecutor as provided in Section 8(2) of the Ombudsman Act.
However, the Ombudsman Act also grants the Ombudsman the authority to remove a Deputy Ombudsman and
the Special Prosecutor through the general grant of disciplinary authority over all elective and appointive officials, in
reiteration of Sections 13(1) and (2), Article XI of the Constitution:10
Officials Subject to Disciplinary Authority; Exceptions 21. Section.—The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government
and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary. 11
In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative intent is to grant concurrent
jurisdiction to the President and the Ombudsman in the removal of the Deputy Ombudsman and the Special
Prosecutor. An “endeavor should be made to harmonize the provisions of a law x x x so that each shall be
effective.”12 This is not a hollow
_______________
10 See notes 8 and 9.
11 R.A. No. 6770, Sec. 21.
12 Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948). See also Mactan-Cebu International Airport Authority v. Urgello,
G.R. No. 162288, 4 April 2007, 520 SCRA 515, 535, citing Civil Service Commission v. Joson, Jr., G.R. No. 154674, 27
May 2004, 429 SCRA 773, 786.
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precept of statutory construction. This is based not only on democratic principle but also on the separation of
powers, that this Court should not be so casual in voiding the acts of the popularly elected legislature unless there is
a clear violation of the Constitution.
II.
When the 1987 Constitution speaks of “independent” bodies, it does not mean complete insulation from other
offices. The text, history and structure of the Constitution contemplate checks and balances that result in the
expansion, contraction or concurrence of powers, a coordinate functioning among different bodies of government
that is not limited to the executive, legislative and judicial branches, but includes the “independent” constitutional
bodies. The very structure of our government belies the claim that “independent” bodies necessarily have exclusive
authority to discipline its officers.
Not all constitutional declarations are enforceable by courts. 13 We declared some of them as not self-executing
such as the Declaration of Principles and State Policies under Article II. 14 However, the independence of
constitutional bodies is a judicially enforceable norm. Textually, the Constitution does not define the term
“independent” and thus, the contours of this principle may not be immediately clear. The question therefore arises:
to what extent can this Court enforce the independence of bodies like the Ombudsman? Can we impose a particular
notion of independence, amidst the silence of the constitutional text, to the extent of nullifying an act of Congress?
_______________
13 Tañada v. Angara, 338 Phil. 546; 272 SCRA 18 (1997); Manila Prince Hotel v. Government Service Insurance
System, 335 Phil. 82; 267 SCRA 408 (1997); Kilosbayan, Inc. v. Morato, 316 Phil. 652; 246 SCRA 540 (1995).
14 Id.
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The answer lies in the Constitution itself which circumscribes the exercise of judicial power. The Constitution
clearly intended different degrees of independence among the “independent” bodies that it created. For some, such
as the National Economic and Development Authority, Bangko Sentral ng Pilipinas and Commission on Human
Rights, the operationalization of independence is constitutionally committed to the discretion of Congress. 15 For the
others, like the Civil Service Commission, the Commission on Audit and the Commission on Elections, legislative
power is decidedly more limited,16 with express guarantees like fiscal autonomy17 and rule-making power on
pleadings and practice.18
The Constitution does not enumerate in detail all the possible legislative powers. The Constitution has vested
Congress with plenary powers—as the general repository of the police power of the State—to fill-in gaps in the
Constitution for the governance of this country. However, when the Constitution expressly empowers Congress to
do a specific act—like expressly empowering Congress to provide the mode of removal of all non-impeachable
government officers and employees, there can be no doubt whatsoever that Congress can enact such a law.
Any reading of the 1987 Constitution does not warrant the conclusion that all bodies declared by the
Constitution as “independent” have exclusive disciplinary authority over all their respective officials and employees.
Unlike the Judiciary where such exclusivity is expressly provided for in the Consti-
_______________
15 CONSTITUTION, Art. XII, Secs. 9 and 20; Art. XIII, Sec. 17.
16 See CONSTITUTION, Art. IX-A, Sec. 3 (the salaries of the Chairman and the Commissioners are fixed by law but
shall not be decreased during their tenure), Sec. 4 (appointment of other officials and employees in accordance with law)
and Sec. 8 (the constitutional commissions may perform other functions as may be provided by law).
17 CONSTITUTION, Art. IX-A, Sec. 5.
18 CONSTITUTION, Art. IX-A, Sec. 6.
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tution,19 there is no reason to read such provision in the Ombudsman where the Constitution is silent. On the
contrary, the constitutional provision that non-impeachable officers and employees “may be removed from office
as provided by law” removes any doubt that Congress can determine the mode of removal of non-impeachable
officers and employees of “independent” bodies other than the Judiciary. An “independent” body does not have
exclusive disciplinary authority over its officials and employees unless the Constitution expressly so provides, as in
the case of the Judiciary.
There are other constitutional bodies declared “independent,” 20 but disciplinary authority is statutorily lodged
somewhere else.21 Under the New Central Bank Act (Republic Act No. 7653), the President also has the power to
remove a member of the Monetary Board on specified grounds.22 There
_______________
19 CONSTITUTION, Art. VIII, Sec. 6 (“The Supreme Court shall have administrative supervision over all courts and
the personnel thereof.”) and Sec. 11 (“x x x The Supreme Court en banc shall have the power to discipline judges of lower
courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon.”).
20 Supra, note 2.
21 Id.
22 R.A. No. 7653, Sec. 10. Removal.—The President may remove any member of the Monetary Board for any of the
following reasons:
If the member is subsequently disqualified under the provisions of Section 8 of this Act; or (a)
If he is physically or mentally incapacitated that he cannot properly discharge his duties and responsibilities and such
incapacity has lasted for more than six (6) months; or (b)
If the member is guilty of acts or operations which are of fraudulent or illegal character or which are manifestly
opposed to the aims and interests of the Bangko Sentral; or (c)
If the member no longer possesses the qualifications specified in Section 8 of this Act. (d)
See also III RECORDS, CONSTITUTIONAL COMMISSION 611 (22 August 1986):
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is nothing anomalous in this mode of removal because the Constitution expressly authorizes the legislature to
provide for such mode of removal. This Court cannot enforce a speculative notion of independence—that an
“independent” body has exclusive disciplinary authority—for doing so would be a species of judicial legislation or a
disguised constitutional amendment.
_______________
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. Madam President, may I ask a question for clarification? The section says, “The Congress shall
establish an independent central monetary authority.” My question has reference to the word “independent.” How is
independence of this authority supported by the Constitution?
In the case of the judiciary, the Members are independent because they have a fixed term and they may not be
removed except by impeachment or some very difficult process. This applies to the different constitutional commissions.
But in the case of this central monetary authority which we call “independent”, how is this independence maintained?
MR. VILLEGAS. The thinking is: Congress, in establishing that independent central monetary authority, should
provide a fixed term. Actually that was contained in the original Davide amendment but we thought of leaving it up to
Congress to determine that term—a fixed term of probably five years or seven years serving in the monetary board.
MR. RODRIGO. Does this include that they may not be removed except by impeachment by the Congress?
MR. VILLEGAS. Exactly.
MR. RODRIGO. Just like the members of the other constitutional commissions?
MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same disabilities or disqualifications as the
members of the constitutional commissions.
MR. RODRIGO. Are we leaving that to Congress?
MR. VILLEGAS. That is right.
MR. RODRIGO: Thank you.
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III.
This Court has no business limiting the plenary power of Congress unless the Constitution expressly so limits it.
The fact that different constitutional bodies are treated differently under the Constitution shows that independence is
a broadly delineated norm. With this level of generality, the constitutional meaning of independence is only that of
independent decision-making that is free from partisanship and political pressures. It does not even mean fiscal
autonomy unless the Constitution says so.23 Thus, it is generally left to Congress to particularize the meaning of
independence, subject only to specific constitutional limitations. Nothing in the Constitution tells us that an
“independent” body necessarily has exclusive disciplinary authority over its officials and employees.
A completely “independent” body is alien to our constitutional system. There is no office that is insulated from a
possible correction from another office. The executive, legislative and judicial branches of government operate
through the system of checks and balances. All independent constitutional bodies are subject to review by the courts.
A fiscally autonomous body is subject to audit by the Commission on Audit, and Congress cannot be compelled to
appropriate a bigger budget than that of the previous fiscal year. 24
Section 8(2) of the Ombudsman Act is consistent with our system of checks and balances. The provision is a
narrow form of delegation which empowers the President to remove only two officers in the Office of the
Ombudsman, i.e. the Deputy Ombudsman and the Special Prosecutor. The proposition that an external disciplinary
authority compromises the Ombudsman’s independence fails to recognize that the Constitution
_______________
23 Commission on Human Rights Employees’ Association v. Commission on Human Rights, G.R. No. 155336, 21
July 2006, 496 SCRA 226.
24 See CONSTITUTION, Art. VIII, Sec. 3; Art. IX-A, Sec. 5; Art. XI, Sec. 14.
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expressly authorizes Congress to determine the mode of removal of all nonimpeachable officers and employees. It
also fails to recognize that under a system of checks and balances, an external disciplinary authority is desirable and
is often the norm.
In disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct the proper disciplinary
authority “to take appropriate action against a public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.” 25 This is further implemented
by the Ombudsman Act which provides that “[a]t its option, the Office of the Ombudsman may refer certain
complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings
against erring public officers or employees, which shall be determined within the period prescribed the civil service
law.”26
Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress can even authorize the
Department of Justice or the Office of the President to investigate cases within the jurisdiction of the Ombudsman.
Similarly, the Ombudsman can investigate public officers and employees who are under the disciplinary authority of
heads of other bodies or agencies. 27 The cases cited in the ponencia, i.e. Hagad v. Gozo-Dadole28 and Office the
Ombudsman v. Delijero, Jr.29—illustrate that concurrent jurisdiction does not impair
_______________
25 CONSTITUTION, Art. XI, Sec. 13, par. (3). Emphasis supplied.
26 R.A. No. 6770, Sec. 23(2).
27 The Administrative Code of 1987 (Executive Order No. 292) provides that the heads of agencies are generally
empowered to investigate and decide matters involving disciplinary actions against officers and employees under their
jurisdiction. ADMINISTRATIVE CODE, Book V, Title I, Subtitle A, Chapter7, Secs. 47, par. (2) and 48, par. (1).
28 G.R. No. 108072, 12 December 1995, 251 SCRA 242.
29 G.R. No. 172635, 20 October 2010, 634 SCRA 135.
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the independence of the Ombudsman. Duplication of functions may not at all times promote efficiency, but it is not
proscribed by the Constitution.
Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in part the petition in G.R. No.
196231, in accordance with the ponencia of Justice Estela M. Perlas-Bernabe.
BRION,J.:
The present case consists of two consolidated petitions, G.R. No. 196231 and G.R. No. 196232.
I concur with the ponencia’s main conclusion that petitioner Emilio Gonzales III (in G.R. No. 196231, referred
to as Gonzales or petitioner Gonzales) is not guilty of the charges leveled against him. But with due respect, I
disagree with the conclusion that Section 8(2) of Republic Act (RA) No. 6770 (which empowers the President to
remove a Deputy Ombudsman or a Special Prosecutor) is constitutionally valid.
The petition of Wendell Barreras-Sulit (in G.R. No. 196232, referred to as Sulit or petitioner Sulit) commonly
shares with G.R. No. 196231 the issue of the constitutionality of Section 8(2) of RA No. 6770. For the same reasons
of unconstitutionality discussed below, the administrative proceedings against Sulit should be halted and nullified as
she prays for in her petition.
G.R. No. 196231 is a petition questioning the validity of the administrative proceedings conducted by the Office
of the President against Gonzales who was the Deputy Ombudsman for Military and Other Law Enforcement
Offices.
The action against him before the Office of the President consists of an administrative charge for Gross Neglect
of Duty
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and/or Inefficiency in the Performance of Official Duty (under Section 22, Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and other pertinent Civil Service laws, rules and regulations),
and of Misconduct in Office (under Section 3 of the Anti-Graft and Corrupt Practices Act [RA No. 3019]). 1 The
administrative case against Gonzales was recommended by the Incident Investigation and Review Committee (IIRC)
in connection with the hijacking of a tourist bus resulting in the death of the hijacker and of some passengers; the
hijacker then accused Gonzales of illegal exactions and of delaying the disposition of his Ombudsman case.
On March 31, 2011, the Office of the President found 2Gonzales guilty of Gross Neglect of Duty and Grave
Misconduct constituting betrayal of public trust, and penalized him with dismissal from office.
In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the Ombudsman, seeks to halt and
nullify the ongoing administrative proceedings conducted by the Office of the President against her. Sulit was
charged with violating Section 3(e) of RA No. 3019 and for having committed acts and/or omissions tantamount to
culpable violations of the Constitution, and betrayal of public trust.
In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with Major General Carlos F. Garcia
who had been charged with Plunder and Money Laundering. Because of the plea bargain, Sulit was required to show
cause why an administrative case should not be filed against her. She raised in her Written Explanation of March 24,
2011 the impermissibility and impropriety of administrative disciplinary proceedings against her because the Office
of the President has no jurisdiction to discipline and penalize her. 3
_______________
1 Rollo, Vol. 1, p. 322.
2 Id., at pp. 72-86.
3 Rollo, Vol. 2, p. 8.
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The two petitions—G.R. No. 196231 and G.R. No. 196232—share a common issue: whether the President has
the power to discipline or remove a Deputy Ombudsman or a Special Prosecutor in the Office of the Ombudsman
from office. While the ponencia resolves this issue in favor of the President, it is my considered view that the
power to discipline or remove an official of the Office of the Ombudsman should be lodged only with the
Ombudsman and not with the Office of the President, in light of the independence the Constitution
guarantees the Office of the Ombudsman.
The Office of the Ombudsman is a very powerful government constitutional agency tasked to enforce the
accountability of public officers. Section 21 of The Ombudsman Act of 1989 (RA No. 6770) concretizes this
constitutional mandate by providing that:
21. SectionOfficial Subject to Disciplinary Authority; Exceptions.—The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary. (Emphasis ours.)
The Ombudsman’s duty to protect the people from unjust, illegal and inefficient acts of all public officials
emanates from Section 12, Article XI of the Constitution. These broad powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive
officers, during their tenure.
To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from
the pressures and influence of officialdom and partisan
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politics4 and from fear of external reprisal by making it an “independent” office. Section 5, Article XI of the
Constitution expressed this intent, as follows:
There is hereby created the 5. Section independent Officeof the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis ours.)
It is in this light that the general authority of the Office of the President to discipline all officials and employees the
President has the authority to appoint,5 should be considered.
In more concrete terms, subjecting the officials of the Office of the Ombudsman to discipline and removal
by the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Ombudsman
and her officials, and must consequently run counter to the independence that the Constitution guarantees
the Office of the Ombudsman. What is true for the Ombudsman must be equally true, not only for her
Deputies but for other lesser officials of that Office who act as delegates and agents of the Ombudsman in the
performance of her duties. The Ombudsman can hardly be expected to place her complete trust in subordinate
officials who are not as independent as she is, if only because they are subject to pressures and controls external to
her Office. This need for com-
_______________
4 See Department of Justice v. Hon. Liwag, 491 Phil. 270, 283; 451 SCRA 83, 96 (2005); and Deloso v. Domingo,
G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.
5 Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 726; 321 SCRA 95, 101 (1999); Hon. Bagatsing v. Hon. Melencio
Herrera, 160 Phil. 449, 458; 65 SCRA 434, 440 (1975); and Lacson v. Romero, 84 Phil. 740, 749 (1949).
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plete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and
corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 67706 (providing
that the President may remove a Deputy Ombudsman) clearly runs against the constitutional intent and should,
thus, be declared void.
Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770 were not unknown to the
framers of this law. These possibilities were brought by then Senator Teofisto Guingona to the framers’ attention as
early as the congressional deliberations:
Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan xxx be not by the
President but by the Ombudsman.
x x x x
Senator Guingona contended, however, that the Constitution provides for an independent Office of the
Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies
would be an encroachment on the independence of the Tanodbayan. 7
Despite Senator Guingona’s objections, Congress passed RA No. 6770 and the objected Section 8(2) into
law.8 While it may be claimed that the congressional intent is clear after the Guingona objection was considered and
rejected by Congress, such clarity and the overriding congressional action are not
_______________
6 Section 8.Removal; Filling of Vacancy.—
x x x x
A Deputy or the Special Prosecutor may be removed from office by the President for any of the grounds provided for
the removal of the Ombudsman, and after due process. (2)
7 Ponencia, p. 22.
8 Id., at pp. 22-23.
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enough to insulate the assailed provision from constitutional infirmity if one, in fact, exists. This is particularly true
if the infirmity relates to a core constitutional principle—the independence of the Ombudsman—that belongs to the
same classification as the constitutionally guaranteed independence that the Judiciary enjoys. To be sure, neither the
Executive nor the Legislative can create the power that Section 8(2) grants where the Constitution confers
none.9 When exercised authority is drawn from a vacuum, more so when the authority runs counter to constitutional
intents, this Court is obligated to intervene under the powers and duties granted and imposed on it by Article VIII of
the Constitution.10 The alternative for the Court is to be remiss in the performance of its own constitutional duties.
More compelling and more persuasive than the reason expressed in the congressional deliberations in
discerning constitutional intent should be the deliberations of the Constitutional Commission itself on the
independence of the Ombudsman. Commissioner Florenz Regalado of the Constitutional Commission openly
expressed his concerns on the matter, fearing that any form of presidential control over the Office of the
Ombudsman would diminish its independence:
In other words, Madam President, what actually spawned or caused the failure of the justices of the
Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to two
reasons: First, almost all their time was taken up by criminal cases; and second, since they were under the
Office of the President, their funds came from that office. I have a sneaking suspicion that they were
prevented from making administrative monitoring because of the sensitivity of the then head of that
office, because if the Tanodbayan would make the corresponding reports about failures,
malfunctions or omissions of the different
_______________
9 Bautista v. Senator Salonga, 254 Phil. 156, 179; 172 SCRA 160, 182 (1989).
10 CONSTITUTION, Article VIII, Sections 1 and 5(2).
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ministries, then that would reflect upon the President who wanted to claim the alleged confidence of
the people.
x x x x
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is
not necessarily so. If he is toothless, then let us give him a little more teeth by making him independent
of the Office of the President because it is now a constitutional creation, so that the insidious tentacles of
politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him
of the opportunity to render service to Juan de la Cruz. x x x. There is supposed to be created a
constitutional office—constitutionalized to free it from those tentacles of politics—and we give it more
teeth and have the corresponding legislative provisions for its budget, not a budget under the Office of the
President.
x x x x
x x x. For that reason, Madam President, I support this committee report on a constitutionally created
Ombudsman and I further ask that to avoid having a toothless tiger, there should be further provisions for
statistical and logistical support. (Emphases ours.)
11
The intention of the Constitutional Commission to keep the Office of the Ombudsman independent from the
President could not have been made any clearer than when Commissioner Christian Monsod vehemently rejected the
recommendation of Commissioner Blas Ople who had suggested to the Committee that the Office of the
Ombudsman be placed under the Executive:
MR. OPLE. x x x
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good govern-
_______________
11 Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.
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ment, efficiency of the public service and the integrity of the President of the Philippines, instead of
creating another agency in a kind of administrative limbo which would be accountable to no one on the
pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee—and I believe it still is that it may not contribute
to the effectiveness of this office of the Ombudsman precisely because many of the culprits in
inefficiency, injustice and impropriety are in the executive department. Therefore, as we saw the wrong
implementation of the Tanodbayan which was under the tremendous influence of the President, it was an
ineffectual body and was reduced to the function of a special fiscal.
The whole purpose of our proposal is precisely to separate those functions and to produce a vehicle
that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition. 12
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to
remove and discipline members of the Office of the Ombudsman, or to exercise any power over them, would
result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the
integrity and competence of the very persons who can remove or suspend its members. Equally relevant is the
impression that would be given to the public if the rule were otherwise. A complainant with a grievance against a
high-ranking official of the Executive, who appears to enjoy the President’s favor, would be discouraged from
approaching the Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would
erode the constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption
and bureaucracy.
_______________
12 Id., at p. 294.
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These views, to my mind, demolish the concern raised in Congress to justify Section 8(2) of RA No. 6770—i.e.,
that vesting the authority to remove the Tanodbayan on the Ombudsman would result in mutual protection. 13 This
congressional concern, too, is a needless one as it is inconsistent with the system of checks and balance that our
legal structure establishes.
At the practical constitutional level, the Tanodbayan (now the Office of the Special Prosecutor) cannot protect
the Ombudsman who is an impeachable officer, as the power to remove the Ombudsman rests with Congress as the
representative of the people.14 On the other hand, should the Ombudsman attempt to shield the Tanodbayan from
answering for any violation, the matter may be raised with the Supreme Court on appeal 15 or by Special Civil Action
for Certiorari,16 whichever may be applicable, in addition to the impeachment proceedings to which the Ombudsman
may be subjected. For its part, the Supreme Court is a non-political independent body mandated by the Constitution
to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary
authority of the Ombudsman and whose neutrality would be less questionable. In these lights, the checks and
balance principle that underlies the Constitution can be appreciated to be fully operational.
I find it significant that the Office of the Ombudsman is not the only governmental body labeled as
“independent” in our Constitution. The list includes the Judiciary, 17 the Constitutional Commissions (Commission on
Elections, Commission on Audit, and the Civil Service Commission),18the Commis-
_______________
13 Ponencia, p. 22.
14 CONSTITUTION, Article XI, Section 2.
15 R.A. No. 6770, Section 27.
16 RULES OF COURT, Rule 65.
17 CONSTITUTION, Article VIII, Sections 1, 2, 3, 6, 10 and 11.
18 Id., Article IX(A), Section 1.
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sion on Human Rights,19 a central monetary authority,20and, to a certain extent, the National Economic Development
Authority.21 These bodies, however, are granted various degrees of “independence” and these variations must be
clarified to fully understand the context and meaning of the “independent” status conferred on the office of the
Ombudsman.
The independence enjoyed by the Office of the Ombudsman, by the Constitutional Commissions, and by the
Judiciary shares certain characteristics—they do not owe their existence to any act of Congress, but are created by
the Constitution itself; additionally, they all enjoy fiscal autonomy.22
For most, if not for all of these “independent” bodies, the framers of the Constitution intended that they be
insulated from political pressure. As a checks and balance mechanism, the Constitution, the Rules of Court, and their
implementing laws provide measures to check on the “independence” granted to the Constitutional Commissions
and the Office of the Ombudsman; the Supreme Court, as the final arbiter of all legal questions, may review the
decisions of the Constitutional Commissions and the Office of the Ombudsman, especially when there is grave
abuse of discretion.23 Of course, foisted over the Members of the Supreme Court is the power of impeachment that
Congress has the authority to initiate, and carry into its logical end a meritorious impeachment case. 24 Such is the
symmetry that our Constitution provides for the harmonious balance of all its component and “independent” parts.
_______________
19 Id., Article XIII, Section 17(1).
20 Id., Article XII, Section 20.
21 Ibid.
22 Id., Article VIII, Section 3; Article IX(A), Section 5; and Article XI, Section 14.
23 Id., Article VIII, Section 5.
24 Id., Article XI, Section 2.
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In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the Judiciary, and ruled against the interference that
the President may bring. In doing so, we maintained that the independence, and the flexibility of the Judiciary, the
Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system:
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 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.
As in the case of the Office of the Ombudsman, the constitutional deliberations explain the Constitutional
Commissions’ need for independence.
In the deliberations for the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, based on the precept that the
effectivity of this body is dependent on its freedom from the tentacles of politics:
DELEGATE GUNIGUNDO x x x
because we believe that the Civil Service created by law has not been able to eradicate the ills and evils
envisioned by the framers of the 1935 Constitution; because we believe that the Civil Service created by
law is beholden to the creators of that law and is therefore not politics-free, not graft-free and not
corruption-free; because we believe that as long as the law is the reflection of the will of the ruling class,
the Civil Service that will be created and recreated by [b]
_______________
25 G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150.
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law will not serve the interest of the people but only the personal interest of the few and the enhancement
of family power, advancement and prestige. 26
The deliberations of the 1987 Constitution on the Commission on Audit, on the other hand, highlighted the
developments in the past Constitutions geared towards insulating the Commission on Audit from political pressure:
MR. JAMIR. x x x
When the 1935 Constitution was enacted, the auditing office was constitutionalized because of the
increasing necessity of empowering the auditing office to withstand political pressure. Finding a single
Auditor to be quite insufficient to withstand political pressure, the 1973 Constitution established the
Commission consisting of three members—a chairman and two commissioners. 27
In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as “independent,” are not under the control of the President, even if they
discharge functions that are executive in nature. Faced with a temporary presidential appointment in the
Commission on Elections, this Court vigorously denied the President the authority to interfere in these constitutional
bodies:
The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still
a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all,
did not call for presidential
_______________
26 Speech, Session of February 18, 1972, as cited in “The 1987 Constitution of the Republic of the Philippines: A
Commentary” by Joaquin Bernas, 2003 ed., p. 1009.
27 Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.
28 G.R. No. 93867, December 18, 1990, 192 SCRA 358, 361.
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action. The situation could have been handled by the members of the Commission on Elections
themselves without the participation of the President, however well-meaning.
x x x x
x x x. But while conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution.
The Commission on Human Rights, also created by the Constitution as an “independent” office, 29 enjoys lesser
independence since it was not granted fiscal autonomy, in the manner fiscal autonomy was granted to the offices
above-discussed. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly
expressed their desire to keep the Commission independent from the executive branch and other political leaders:
We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position of the committee is that we need a body
that would be able to work and cooperate with the executive because the Commissioner is right. Many of
the services needed by this commission would need not only the cooperation of the executive branch of
the government but also of the judicial branch of government. This is going to be a permanent
constitutional commission over time. MR. MONSOD. We also want a commission to function even
under the worst circumstance when the executive may not be very cooperative. However, the
question in our mind is: Can it still function during that time? Hence, we are willing to accept suggestions
from Commissioner Rodrigo on how to reconcile this. We realize the need for coordination and
cooperation. We also would like to build in some safeguards that it will not be rendered useless by
an uncooperative executive.
x x x x
MR. GARCIA. Thank you very much, Madame President.
_______________
29 Section 17(1), Article XIII of the 1987 Constitution reads:
(1) There is hereby created an independent office called the Commission on Human Rights. 17. Section
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Before we address the procedural question which Commissioner Rodrigo requested, I would like to
touch on a very important question which I think is at the very heart of what we are trying to propose—
the independence of this Commission on Human Rights. xxx
When I was working as a researcher for Amnesty International, one of my areas of concern was Latin
America. I headed a mission to Colombia in 1980. I remember the conversation with President Julio
Cesar Turbay Ayala and he told me that in Colombia, there were no political prisoners. This is a very
common experience when one goes to governments to investigate human rights. From there, we
proceeded to the Procuraduria General to the Attorney-General, to the Ministry of Justice, to the Ministry
of Defense, and normally the answers that one will get are: “There are no political prisoners in our
country”; “Torture is not committed in this country.” Very often, when international commissions or
organizations on human rights go to a country, the most credible organizations are independent human
rights bodies. Very often these are private organizations, many of which are prosecuted, such as those we
find in many countries in Latin America. In fact, what we are proposing is an independent body on
human rights, which would provide governments with credibility precisely because it is
independent of the present administration. Whatever it says on the human rights situation will be
credible because it is not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if we
have a Commission on Human Rights that would investigate and make sure that the rights of each
one is protected, then we shall have a body that could stand up to any power, to defend the rights of
individuals against arrest, unfair trial, and so on. (Emphases ours.)
30
_______________
30 Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749.
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Similarly, the Constitution grants Congress the authority to establish an independent central monetary
authority.31 Under these terms, this office is not constitutionally-created nor does it possess fiscal autonomy. When
asked what “independence” means in this provision, Commissioner Bernardo Villegas again reiterated the intention
of various framers for it to be independent of the executive branch:
MR. VILLEGAS. No, this is a formula intended to prevent what happened in the last regime when the
fiscal authorities sided with the executive branch and were systematically in control of monetary policy.
This can lead to disastrous consequences. When the fiscal and the monetary authorities of a specific
economy are combined, then there can be a lot of irresponsibility. So, this word “independent” refers to
the executive branch. 32
The National Economic Development Authority, nominally designated as “independent,” differs from the other
similarly-described agencies because the constitutional provision that provides for its creation immediately puts it
under the control of the executive.33This differing shade of “independence” is
_______________
31 Section 20, Article XII of the 1987 Constitution reads:
The Congress shall establish an independent central monetary authority, the members of whose governing board must
be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the
private sector. 20. Section
32 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 268.
33 Section 9, Article 12 of the 1987 Constitution reads:
The Congress may establish an independent economic and planning agency headed by the President, which shall, after
consultations with the appropriate public agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and policies for national development. 9.
Section
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supported by the statements made during the constitutional deliberations:
I believe that the word “independent” here, as we answered Commissioner Azcuna, was meant to be
MR. MONSOD. independent of the legislature because the NEDA under the present law is under the
Office of the President.
Yes. In other words, the members of that agency are appointed by the President? MR. COLAYCO.
That is right. MR. VILLEGAS.
Yes. MR. MONSOD.
The President heads the NEDA. MR. VILLEGAS. 34
Commissioner Monsod continues by explaining that they did not constitutionalize the National Economic
Development Authority, and, in accordance with the second paragraph of Section 9, Article XII of the 1987
Constitution, even left to Congress the discretion to abolish the office:
During the Committee hearings, there were proposals to change the composition of the governing body
not only of the Monetary Board but also of the NEDA. That is why if we notice in this Article, we did not
constitutionalize the NEDA anymore unlike in the 1973 Constitution. We are leaving it up to Congress to
determine whether or not the NEDA is needed later on. The idea of the Committee is that if we are going
for less government and more private sector initiative, later on it may not be necessary to have a planning
agency. Thus, it may not be necessary to constitutionalize a planning agency anymore. MR. MONSOD.
_______________
Until Congress provides otherwise, the National Economic and Development Authority shall function as the independent
planning agency of the government.
34 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 263.
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So this provision leaves room for the legislature not only to revise the composition of the governing
body, but also to remove the NEDA once it is no longer needed in its judgment. 35
These deliberative considerations make it abundantly clear that with the exception of the National Economic
Development Authority, the independent constitutional bodies were consistently intended by the framers to
be independent from executive control or supervision or any form of political influence.
This perspective abundantly clarifies that the cases cited in the ponencia—Hon. Hagad v. Hon. Gozo-
Dadole36and Office of the Ombudsman v. Delijero, Jr. 37—are not in point. These cases refer to the disciplinary
authority of the Executive over a public school teacher and a local elective official. Neither of these officials belongs
to independent constitutional bodies whose actions should not even be tainted with any appearance of political
influence.
In my view, the closest and most appropriate case to cite as exemplar of independence from executive control
is Bautista v. Senator Salonga,38 where this Court categorically stated, with respect to the independent Commission
on Human Rights, that the tenure of its Commissioners could not be placed under the discretionary power of the
President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent—as the Commission on Human Rights—and vested with the delicate
and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chair-
_______________
35 Id., at pp. 263-264.
36 321 Phil. 604; 251 SCRA 242 (1995).
37 G.R. No. 172635, October 20, 2010, 634 SCRA 135.
38 Supra note 9.
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man and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be
declared unconstitutional. 39
Also in point as another “independence” case is Atty. Macalintal v. Comelec,40 this time involving the
Commission on Elections, which gave the Court the opportunity to consider even the mere review of the rules of
the Commission on Elections by Congress a “trampling” of the constitutional mandate of independence of these
bodies. Obviously, the mere review of rules places considerably less pressure on these bodies than the Executive’s
power to discipline and remove key officials of the Office of the Ombudsman. The caution of, and the strong words
used by, this Court in protecting the Commission on Elections’ independence should—in addition to those expressed
before the Constitutional Commissions and in Congress in the course of framing RA No. 6770—speak for
themselves as reasons to invalidate the more pervasive authority granted by Section 8(2) of RA No. 6770.
Thus, in the case of independent constitutional bodies, with the exception of the National Economic
Development Authority, the principle that the President should be allowed to remove those whom he is empowered
to appoint (because of the implied power to dismiss those he is empowered to appoint 41 should find no
application. Note that the withholding of
_______________
39 Id., at pp. 183-184.
40 453 Phil. 586, 658-659; 405 SCRA 614, 695 (2003).
41 Supra note 5. Section 17, Article VII, and Section 4, Article X of the Constitution likewise provide that:
The President shall have control of all the executive departments, bureaus, and offices. He shall ensure tha 17.
Section t the laws be faithfully executed.
The President of the Philippines shall exercise general supervision over local governments. 4. Section

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the power to remove is not a stranger to the Philippine constitutional structure.
For example, while the President is empowered to appoint the Members of the Supreme Court and the judges of
the lower courts,42 he cannot remove any of them; the Members of the Supreme Court can be removed only by
impeachment and the lower court judges can be removed only by the Members of the Supreme Court en banc. This
is one of the modes by which the independence of the Judiciary is ensured and is an express edge of the Judiciary
over the other “independent” constitutional bodies.
Similarly, the President can appoint Chairmen and Commissioners of the Constitutional Commissions, and the
Ombudsman and her Deputies,43 but the Constitution categorically provides that the Chairmen of the Constitutional
Commissions and the Ombudsman can only be removed by impeachment. 44 The absence of a constitutional
provision providing for the removal of the Commissioners and Deputy Ombudsmen does not mean that
Congress can empower the President to discipline or remove them in violation of the independence that the
Constitution textually and expressly provides.45 As members of independent constitutional bodies, they should be
similarly
_______________
42 CONSTITUTION, Article VIII, Section 9.
43 Id., Article IX(B), Section 1(2); Article IX(C), Section 1(2); Article IX(D), Section 1(2); and Article XI, Section 9.
45 Id., Article IX(A), Section 1 and Article XI, Section 5 read:
The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. Section 1.
There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed. Section 5.
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treated as lower court judges, subject to discipline only by the head of their respective offices and subject to the
general power of the Ombudsman to dismiss officials and employees within the government for cause. No reason
exists to treat them differently.
While I agree with Justice Carpio’s opinion that the Constitution empowered Congress to determine the manner
and causes for the removal of non-impeachable officers, we cannot simply construe Section 2, Article XI of the
Constitution to be a blanket authority for Congress to empower the President to remove all other public officers and
employees, including those under the independent constitutional bodies. When the Constitution states that Congress
may provide for the removal of public officers and employees by law, it does not mean that the law can violate the
provisions and principles laid out in the Constitution. The provision reads:
The President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal
of public trust. All other public officers and employees may be removed from office as provided by
law, but not by impeachment. [emphasis and underscoring ours]
The deliberations of the Constitutional Commissions, as quoted by Justice Carpio, explain an important aspect of
the second sentence of Section 2, Article XI of the Constitution—that it was not the intent to widen the
discretion of Congress in providing for the removal of a public officer; the intent was to limit its powers. The
second sentence of Section 2, Article XI was provided to limit the public officers who can only be removed by
impeachment. This limitation is one made necessary by past experiences. In an earlier law, Presidential Decree No.
1606, Congress provided, by law, that justices of the Sandiganbayan
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(who are not included in the enumeration) may only be removed by impeachment. Commissioner Regalado
insisted on adding the second sentence of Section 2, Article XI of the Constitution to prevent Congress from
extending the more stringent rule of “removal only by impeachment” to favored public officers. 46
Ultimately, the question now before this Court goes back to whether the Constitution intended to allow political
entities, such as the Executive, to discipline public officers and employees of independent constitutional bodies. If
this is the intent, then Congress cannot have the authority to place the power to remove officers of these
“independent constitutional bodies” under executive disciplinary authority unless otherwise expressly authorized by
the Constitution itself. I firmly take this position because the drafters repeatedly and painstakingly drafted the
constitutional provisions on the independent constitutional bodies to separate them from executive control. Even
after the other delegates made it clear that the easier path would be to place these bodies under the control of the
President, the majority nevertheless voted against these
_______________
46 Record of the Constitutional Commission, Vol. 2, July 28, 1986, p. 356 reads:
MR. REGALADO. xxx The reason for the amendment is this: While Section 2 enumerates the impeachable officers,
there is nothing that will prevent the legislature as it stands now from providing also that other officers not enumerated
therein shall also be removable only by impeachment, and that has already happened.
Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be removed only by
impeachment, unlike their counterparts in the then Court of Appeals. They are, therefore, a privileged class xxx
xxxx
MR. REGALADO. xxx But the proposed amendment with not prevent the legislature from subsequently repealing or
amending that portion of the law [PD No. 1606]. Also, it will prevent the legislature from providing for favored public
officials as not removable except by impeachment.
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moves and emphatically expressed its refusal to have these offices be made in any way under the disciplinary
authority of the Executive.
This constitutional intent rendered it necessary for the Constitution to provide the instances when executive
interference may be allowed. In the case of the National Economic Development Authority, the Constitution
explicitly provided that the President may exert control over this body. The Constitution was also explicit when it
empowered the President to appoint the officers of the other “independent” bodies, and even then, this power was
qualified: (1) in the cases of the Constitutional Commissions, by giving the chairmen and the members staggered
terms of seven years to lessen the opportunity of the same President to appoint the majority of the body; 47and (2) in
the case of the Ombudsman and his Deputies, by limiting the President’s choice from a list prepared by the Judicial
and Bar Council.48
Thus, we cannot maintain a light and cavalier attitude in our constitutional interpretation and merely say that the
“independence” of the constitutional bodies is whatever Congress would define it at any given time. In the cases I
have cited—Bautista v. Senator Salonga,49 Atty. Macalintal v. Comelec,50 and Brillantes, Jr. v. Yorac51—this Court
did not merely leave it to the Legislature or the Executive to freely interpret what “independence” means. We
recognized in the term a meaning fully in accord with the intent of the Constitution.
This intent was the same guiding light that drove this Court to rule that the President cannot determine the tenure
of the Commission on Human Rights Chairman and Mem-
_______________
47 CONSTITUTION, Article IX-B, C, and D, Section 1(2).
49 Supra note 9.
50 Supra note 39.
51 Supra note 27.
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bers; that Congress cannot enact a law that empowers it to review the rules of the Commission on Elections; and that
the President cannot even make interim appointments in the Commission on Elections.
After halting these lesser infractions based on the constitutional concept of “independence,” it would be strange
—in fact, it would be inconsistent and illogical for us—to rule at this point that Congress can actually allow the
President to exercise the power of removal that can produce a chilling effect in the performance of the duties of a
Special Prosecutor or of the Deputy Ombudsman.
I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the Constitution do not only refer to the
Ombudsman, but also to the Ombudsman’s Deputies. Section 9 provides for their appointment process. While the
President can appoint them, the appointment should be made from the nominations of the Judicial and Bar Council
and the appointments do not require confirmation. Section 10 gives the Ombudsman and the Deputies the same rank
and salary as the Chairmen and Members of the Constitutional Commission. The salary may not be diminished
during their term. Section 11 disqualifies them from reappointment and participation in the immediately succeeding
elections, in order to insulate them further from politics. Section 12 designates the Ombudsman and the Deputies as
“protectors of the people” and directs them to act promptly on all complaints against public officials or employees.
Under this structure providing for terms and conditions fully supportive of “independence,” it makes no sense to
insulate their appointments and their salaries from politics, but not their tenure. One cannot simply argue that the
President’s power to discipline them is limited to specified grounds, since the mere filing of a case against them can
result in their suspension and can interrupt the performance of their functions, in violation of Section 12, Article XI
of the Constitution. With only one term allowed under Section 11, a Deputy Om-
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budsman or Special Prosecutor removable by the President can be reduced to the very same ineffective Office of the
Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices independent
constitutional bodies.
At the more practical level, we cannot simply turn a blind eye or forget that the work of the Office of the
Ombudsman, like the Constitutional Commissions, can place the officers of the Executive branch and their superior
in a bad light. We cannot insist that the Ombudsman and his Deputies look into all complaints, even against those
against Executive officials, and thereafter empower the President to stifle the effectiveness of the Ombudsman and
his or her Deputies through the grant of disciplinary authority and the power of removal over these officers.
Common and past experiences tell us that the President is only human and, like any other, can be displeased. At the
very least, granting the President the power of removal can be counterproductive, especially when other less
political officers, such as the Ombudsman and the Judiciary, already have the jurisdiction to resolve administrative
cases against public officers under the Office of the Ombudsman.
Given the support of the Constitution, of the Records of the Constitutional Commission, and of previously
established jurisprudence, we cannot uphold the validity of Section 8(2) of RA No. 6770 merely because a similar
constitutionally-unsupported provision exists under RA No. 7653. Under our legal system, statutes give way to the
Constitution, to the intent of its framers and to the corresponding interpretations made by the Court. It is not, and
should not be, the other way around.
I join the ponente in declaring that the Deputy Ombudsmen and Special Prosecutors should not escape
accountability for their wrongdoing or inefficiency. I differ only in allowing the President, an elective official whose
position is primarily political, to discipline or remove members of independent constitutional bodies such as the
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Thus, the administrative proceedings conducted by the Office of the President against petitioner Gonzales should be
voided and those against petitioner Sulit discontinued.
Lastly, while I find the proceedings before the Office of the President constitutionally infirm, nothing in this
opinion should prevent the Ombudsman from conducting the proper investigations and, when called for, from filing
the proper administrative proceedings against petitioners Gonzales and Sulit. In the case of Gonzales, further
investigation may be made by the Ombudsman, but only for aspects of his case not otherwise covered by the Court’s
Decision.
DISSENTING OPINION
ABAD,J.:
This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the Office of the President (OP)
the power to investigate and remove from office the Deputies Ombudsman and the Special Prosecutor who work
directly under the supervision and control of the Ombudsman. Using this power, the OP investigated and found
petitioner Emilio Gonzales III, Deputy Ombudsman for the Military and Other Law Enforcement Offices, guilty of
gross neglect in handling the pending case against a police officer who subsequently hijacked a tourist bus. Using
the same power, the OP initiated a similar investigation of a case against petitioner Wendell Barreras-Sulit, the
Special Prosecutor, for alleged corruption, she having allowed her office to enter into a plea-bargaining agreement
with Major General Carlos F. Garcia who had been charged with plunder.
Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second in G.R. 196232. Gonzales
assails the correctness of the OP decision that dismissed him from the service. Both challenges the constitutionality
of Section 8(2) of
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R.A. 6770 which gave the President the power to investigate and remove them.
The ponencia would have the Court uphold the constitutionality of Section 8(2), R.A. 6770 that empowers the
President to investigate and remove Deputy Ombudsman Gonzales and Special Prosecutor Sulit from office. It
argues that, although the Constitution expressly provides for the removal of the Ombudsman himself, which is by
impeachment, it fails to provide a procedure for the removal from office of a Deputy Ombudsman or Special
Prosecutor. By enacting Section 8(2) of R.A. 6770, Congress simply filled in a void that the Constitution itself
authorizes.
The ponencia relies on Section 2, Article XI of the Constitution for support:
Section 2The President, the Vice President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. . All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Emphasis ours)
The removal from office of a Deputy Ombudsman or a Special Prosecutor, says the ponencia, falls in the
category of public officers and employees that “may be removed from office as provided by law.”
True enough, the above Section 2 above provides that only the President, the Vice President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed by
impeachment and that other public officers and employees may be removed by law. But this cannot literally be taken
to mean that Congress may authorize the President to investigate and remove all non-impeachable public officers
and employees.711
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Surely, Congress may not authorize the President to exercise this power against those that the Constitution
expressly or implicitly shields from his influence or intervention. For instance, Congress cannot authorize the
President to remove lower court judges, although they are not subject to impeachment, since such authority is
reserved by the Constitution to the Supreme Court. 1Further, as the Court held in Bautista v. Salonga,2although the
Chairman and Members of the Commission on Human Rights are not impeachable public officials, their terms
cannot be made to depend on the pleasure of the President since the Constitution perceives them as exercising
functions independent of him.
Actually, there was no existing “void” in the matter of the removal of the Deputy Ombudsman and the Special
Prosecutor when Congress enacted R.A. 6770. Administrative Code of 1987, then in force, already vested in heads
of offices, including the Ombudsman, the power to investigate and take disciplinary action against all officers and
employees under him, the Deputy Ombudsman and the Special Prosecutor included. 3
In subsequently enacting R.A. 6770, Congress in effect removed such power of investigation and removal,
insofar as the Deputy Ombudsman and the Special Prosecutor were concerned, from the Ombudsman and
transferred the same to the President. As will shortly be shown below, such wresting of power from the Ombudsman
is an appalling blow to his con-
_______________
1 Section 11, Article VIII of the 1987 Constitution—
“The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they
reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en
banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the
Members who actually took part in the deliberations on the issues in the case and voted thereon.” (Emphasis ours)
2 254 Phil. 156, 183-184; 172 SCRA 160, 187 (1989).
3 Sec. 47, par. (2), Chapter 6, Subtitle A, Title IX.
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stitutionally mandated independence from the influence and threats of the other departments and agencies of
government.
Section 5, Article XI of the 1987 Constitution provides:
5 SectionThere is hereby created the . independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon,
Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)
The Constitution has reasons for making the Office of the Ombudsman “independent.” Its primordial duty is to
investigate and discipline all elective and appointive government officials. 4 Specifically, Section 13, Article XI of
the Constitution vests in that Office the absolute power to investigate any malfeasance, misfeasance, or non-feasance
of public officers or employees. This function places it a notch higher than other grievance-handling, investigating
bodies. With the exception of those who are removable only by impeachment, the Office of the Ombudsman can
investigate and take action against any appointive or elected official for corruption in office, be they Congressmen,
Senators, Department Secretaries, Governors, Mayors, or Barangay Captains.
Thus, the Office of the Ombudsman needs to be insulated from the pressures, interventions, or vindictive acts of
partisan politics.5 The Court has itself refrained from interfering with the Office of the Ombudsman’s exercise of its
powers. It is not the Court but the Ombudsman who is the champion of the people and the preserver of the integrity
of public service.6 The Office of the Ombudsman, which includes the Deputy
_______________
4 The Ombudsman Act of 1989, Section 21.
5 Department of Justice v. Liwag, 491 Phil. 270, 283; 451 SCRA 83, 96 (2005).
6 Dimayuga v. Office of the Ombudsman, 528 Phil. 42, 48; 495 SCRA 461, 466 (2006).
713
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Ombudsman and the Special Prosecutor, cannot be beholden to or fearful of any one, the President included.7
The power to impeach is a function of check and balance under the Constitution. But the power to remove
“public officers and employees” from office, in the realm of administrative law, is a function of supervision, if not
control. Keeping the Deputies in the Office of the Ombudsman and the Special Prosecutor independent as the
Constitution commands and subjecting them to the President’s control or supervision are incompatible ideas.
To say that the Deputy Ombudsman and the Special Prosecutor will remain independent of the President
notwithstanding that he can investigate and remove them from office at any time is the equivalent of saying that
monkeys grow out of trees. If there is any one that the holder of public office fears, it is that person who has the
power to remove him.
If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy Ombudsman and
the Special Prosecutor will be able to openly defy the orders of the Ombudsman and disregard his policies without
fear of disciplinary sanction from him. The law makes them subject to investigation and removal only by the
President. It is him they have to obey and will obey. Surely, this is not what the Constitution contemplates in an
“independent” Office of the Ombudsman.
The present cases are precisely in point. The Ombudsman did not herself appear to regard Gonzales and Sulit’s
actuations in the subject matters of the cases against them worthy of disciplinary action. But, given that the
Secretary of Justice, an alter ego of the President, took an opposite view, the President deigned to investigate them.
In effect, the President is able to substitute his judgment for that of the Ombudsman in a matter concerning function
of the latter’s office. This
_______________
7 Id.
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gives the President a measure of control over the Ombudsman’s work.
From here on, if the Court chooses to uphold the constitutionality of Section 8(2) of R.A. 6770, the Deputy
Ombudsman and the Special Prosecutor would be consulting the Office of the President or the Secretary of Justice
before they act in any case in which the latter has an interest. This is the ludicrous and unpalatable situation that the
framers of the Constitution envisaged and sought to avoid when they granted the Office of the Ombudsman
independence from others who wield governmental powers.8
I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770 that empowers the President to
remove the Deputy Ombudsman and the Special Prosecutor unconstitutional and void, annul the decision of the
Office of the President against Deputy Ombudsman Emilio Gonzales III dated March 31, 2011, and permanently
enjoin that Office from further proceeding with the administrative case against Special Prosecutor Wendell Barreras-
Sulit.
Judgment reversed and set aside.
Notes.—An impeachable officer who is a member of the Bar cannot be disbarred without first being impeached.
(Marcoleta vs. Borra, 582 SCRA 474 [2009])
No rule of procedure or provision of law is transgressed where all the proceedings in a plea bargain, i.e.,
arraignment, plea bargaining and conviction, occurred on a single day. (Bug-atan vs. People, 630 SCRA 537 [2010])
An impeachment is not a judicial proceeding but rather a political exercise. (Gutierrez vs. The House of
Representatives Committee on Justice, 644 SCRA 804 [2011]
January 28, 2014. G.R. No. 196231.*

EMILIO A. GONZALES III, petitioner, vs. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING
THROUGH AND REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR
DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE – OFFICE OF
THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR.
ROWENA TURINGAN-SANCHEZ, and ATTY. CARLITO D. CATAYONG, respondents.
January 28, 2014.* G.R. No. 196232.

WENDELL BARRERAS-SULIT petitioner, vs. ATTY. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.
SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND
MEMBERS OF OFFICE OF MALACAÑANG LEGAL AFFAIRS, respondents.
Administrative Law; Justiciable Questions; The issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable — not a
political — question.—The issue of whether a Deputy Ombudsman may be subjected to the administrative disciplinary
jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable — not a political — question. A
justiciable question is one which is inherently susceptible of being decided on grounds recognized by law, as where the court
finds that there are constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the
government. In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant concurrent
disciplinary authority to the President. Our inquiry is limited to whether such statutory grant
_______________
* EN BANC.
612violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core constitutional principle of
the independence of the Office of the Ombudsman as expressed in Section 5, Art. XI of the Constitution.
Office of the Ombudsman; Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the “protector of the people” against the inept, abusive, and corrupt in the Government, to function essentially
as a complaints and action bureau.—Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the “protector of the people” against the inept, abusive, and corrupt in the Government, to function essentially as
a complaints and action bureau. This constitutional vision of a Philippine Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard against the ills, abuses and excesses of the bureaucracy. Pursuant to Section
13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution.
Same; Jurisdiction; The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their
tenure.—The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure. To
support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence
of officialdom and partisan politics and from fear of external reprisal by making it an “independent” office. Section 5, Article XI
of the Constitution expressed this intent, as follows: Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
Same; Fiscal Autonomy; The independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics — they do not owe their existence to any act of
613Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.—Under the
Constitution, several constitutional bodies have been expressly labeled as “independent.” The extent of the independence
enjoyed by these constitutional bodies however varies and is to be interpreted with two significant considerations in mind: first,
the functions performed or the powers involved in a given case; and second,consistency of any allowable interference to these
powers and functions, with the principle of checks and balances. Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares certain characteristics — they do not owe their existence to any act
of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers
of the Constitution intended that these “independent” bodies be insulated from political pressure to the extent that the absence of
“independence” would result in the impairment of their core functions.
Same; Fiscal Autonomy; In Bengzon v. Drilon, 208 SCRA 133 (1992), involving the fiscal autonomy of the Judiciary, the
Supreme Court ruled against the interference that the President may bring and maintained that the independence and the
flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system. —
In Bengzon v. Drilon, 208 SCRA 133 (1992), involving the fiscal autonomy of the Judiciary, we ruled against the interference
that the President may bring and maintained that the independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal system. 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 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.
Fiscal Autonomy; Commission on Human Rights (CHR); The Constitution also created an “independent” Commission on
Human Rights, although it enjoys a lesser degree of independence since it is
614not granted fiscal autonomy in the manner fiscal autonomy is granted to the constitutional commissions.—Notably, the
Constitution also created an “independent” Commission on Human Rights, although it enjoys a lesser degree of independence
since it is not granted fiscal autonomy in the manner fiscal autonomy is granted to the constitutional commissions. The lack of
fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders.
Same; Constitutional Commissions; In Brillantes, Jr. v. Yorac, 192 SCRA 358 (1990), the Supreme Court emphasized that
the Constitutional Commissions, which have been characterized under the Constitution as “independent,” are not under the
control of the President, even if they discharge functions that are executive in nature. —In Brillantes, Jr. v. Yorac, 192 SCRA 358
(1990), we emphasized that the Constitutional Commissions, which have been characterized under the Constitution as
“independent,” are not under the control of the President, even if they discharge functions that are executive in nature. The Court
declared as unconstitutional the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the
Comelec “however well-meaning” it might have been.
Same; Commission on Human Rights (CHR); In Bautista v. Senator Salonga, 172 SCRA 160 (1989), the Supreme Court
categorically stated that the tenure of the commissioners of the independent Commission on Human Rights could not be placed
under the discretionary power of the President.—In Bautista v. Senator Salonga, 172 SCRA 160 (1989), the Court categorically
stated that the tenure of the commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President: Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent — as the Commission on Human Rights — and vested with the delicate and
vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its
Chairman and Members is made dependent on the pleasure of the President. Executive Order No.
615163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to
be declared unconstitutional.
Office of the Ombudsman; Subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter
egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place
at risk the independence of the Office of the Ombudsman itself.—In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department
are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of
the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them
tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and
balances that the creation of an Ombudsman office seeks to revitalize. What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete trust in her subordinate officials who are not as independent as she is,
if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal
setting and truer still in a young democracy like the Philippines where graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy
Ombudsman) should be declared void.
Same; The Executive power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the
integrity and competence of the very persons who can remove or suspend its members.—The statements made by Commissioner
Monsod emphasized a
616very logical principle: the Executive power to remove and discipline key officials of the Office of the
Ombudsman, or to exercise any power over them, would result in an absurd situation wherein the Office of the
Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule were otherwise. A
complainant with a grievance against a high-ranking official of the Executive, who appears to enjoy the President’s favor, would
be discouraged from approaching the Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption and bureaucracy.
Constitutional Law; Impeachment; The intent of the framers of the Constitution in providing that “[a]ll other public
officers and employees may be removed from office as provided by law, but not by impeachment” in the second sentence of
Section 2, Article XI is to prevent Congress from extending the more stringent rule of “removal only by impeachment” to favored
public officers.—Under Section 2, Article XI of the 1987 Constitution, Congress is empowered to determine the modes of
removal from office of all public officers and employees except the President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable officials. The intent of the
framers of the Constitution in providing that “[a]ll other public officers and employees may be removed from office as provided
by law, but not by impeachment” in the second sentence of Section 2, Article XI is to prevent Congress from extending the more
stringent rule of “removal only by impeachment” to favored public officers. Understandably so, impeachment is the most
difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui generis politico-legal process
that signals the need for a judicious and careful handling as shown by the process required to initiate the proceeding; the one-year
limitation or bar for its initiation; the limited grounds for impeachment; the defined instrumentality given the power to try
impeachment cases; and the number of votes required for a finding of guilt. All these argue against the
617extension of this removal mechanism beyond those mentioned in the Constitution.
Same; Same; The authority granted by the Constitution to Congress to provide for the manner and cause of removal of all
other public officers and employees does not mean that Congress can ignore the basic principles and precepts established by the
Constitution.—The authority granted by the Constitution to Congress to provide for the manner and cause of removal of all other
public officers and employees does not mean that Congress can ignore the basic principles and precepts established by the
Constitution.
Same; Deputy Ombudsman; Special Prosecutor; With only one term allowed under Section 11, Article XI of the
Constitution, a Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same
ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.—That a judicial remedy is available (to set aside dismissals that do not conform to the high
standard required in determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s
power of removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of
independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special Prosecutor
before the OP can already result in their suspension and can interrupt the performance of their functions, in violation of
Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or Special
Prosecutor, if removable by the President, can be reduced to the very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices independent constitutional bodies.
Administrative Law; Gross Negligence; Words and Phrases; Gross negligence refers to negligence characterized by the
want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully
and intentionally, with a conscious indifference to consequences insofar as other persons may be affected. In the case of public
officials, there is gross negligence when a breach of duty is flagrant and palpable.—Gross
618negligence refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to
consequences insofar as other persons may be affected. In the case of public officials, there is gross negligence when a breach of
duty is flagrant and palpable. Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days.
Deputy Ombudsman; Even if we consider Section 8, Rule III of Administrative Order No. 7, series of 1990 to be
mandatory, the period it requires cannot apply to Gonzales since he is a Deputy Ombudsman whose obligation is to review the
case; he is not simply a Hearing Officer tasked with the initial resolution of the motion.—In finding Gonzales guilty, the OP
relied on Section 8, Rule III of Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for Reconsideration within five days: Section
8. Motion for reconsideration or reinvestigation: Grounds—Whenever allowable, a motion for reconsideration or reinvestigation
may only be entertained if filed within ten (10) days from receipt of the decision or order by the party on the basis of any of the
following grounds: a) New evidence had been discovered which materially affects the order, directive or decision; b) Grave
errors of facts or laws or serious irregularities have been committed prejudicial to the interest of the movant. Only one motion for
reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall resolve the same within five (5) days from the
date of submission for resolution. [emphasis and underscore ours] Even if we consider this provision to be mandatory, the period
it requires cannot apply to Gonzales since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a
Hearing Officer tasked with the initial resolution of the motion.
Office of the Ombudsman; Judicial Notice; We cannot conclusively state, as the Office of the President (OP) appears to
suggest, that Mendoza’s case should have been prioritized over other similar cases. The Supreme Court has already taken
judicial notice of the steady stream of cases reaching the Office of the Ombudsman. —The OP’s claims that Gonzales could have
supervised his subordinates to promptly act on Mendoza’s motion and apprised the Tanodbayan of
619the urgency of resolving the same are similarly groundless. The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the potential loss of employment of many other public employees. We
cannot conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized over other similar
cases. The Court has already taken judicial notice of the steady stream of cases reaching the Office of the Ombudsman. This
consideration certainly militates against the OSG’s observation that there was “a grossly inordinate and inexcusable delay” on the
part of Gonzales. Equally important, the constitutional guarantee of “speedy disposition of cases” before, among others, quasi-
judicial bodies, like the Office of the Ombudsman, is itself a relativeconcept. Thus, the delay, if any, must be measured in this
objective constitutional sense. Unfortunately, because of the very statutory grounds relied upon by the OP in dismissing
Gonzales, the political and, perhaps, “practical” considerations got the better of what is legal and constitutional.
Same; The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based
merely on the request of the alleged victim’s father. The Constitution empowers the Ombudsman and her Deputies to act
promptly on complaints filed in any form or manner against any public official or employee of the government. —The OP also
found Gonzales guilty of showing undue interest in Mendoza’s case by having the case endorsed to the Office of the Ombudsman
and by resolving it against Mendoza on the basis of the unverified complaint-affidavit of the alleged victim, Kalaw. The fact that
Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based merely on the request of the
alleged victim’s father. The Constitution empowers the Ombudsman and her Deputies to act promptly on complaints filed in any
form or manner against any public official or employee of the government. This provision is echoed by Section 13 of RA No.
6770, and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.
Same; In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman,
including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special Prosecutor as well.—
This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
620Constitution, an “independent Office of the Ombudsman” is created. The existing Tanodbayan is made the Office of
the Special Prosecutor, “who shall continue to function and exercise its powers as now or hereafter may be provided by
law.”Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the Office of the
Ombudsman. Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may exercise “such other powers
or perform such functions or duties as may be provided by law.”Pursuant to this constitutional command, Congress enacted RA
No. 6770 to provide for the functional and structural organization of the Office of the Ombudsman and the extent of its
disciplinary authority. In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special
Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman, his Deputies
and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case of vacancy in these
positions, the law requires that the vacancy be filled within three (3) months from occurrence.
Same; Special Prosecutor; The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies. Their terms of office, prohibitions and qualifications, rank and salary are
likewise the same; In case of vacancy in the Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting
Ombudsman; the President may designate any of the Deputies or the Special Prosecutor as Acting Ombudsman. —The law also
imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman himself/herself and his/her deputies.
Their terms of office, prohibitions and qualifications, rank and salary are likewise the same. The requirement on disclosure is
imposed on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the Office of the
Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the President may designate any of the Deputies
or the Special Prosecutor as Acting Ombudsman. The power of the Ombudsman and his or her deputies to require other
government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special Prosecutor. 621
Same; Same; Subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter
egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor, would
seriously place the independence of the Office of the Ombudsman itself at risk.—Under Section 11(4) of RA No. 6770, the
Special Prosecutor handles the prosecution of criminal cases within the jurisdiction of the Sandiganbayan and this prosecutorial
authority includes high-ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and removal
powers of the President, whose own alter egos and officials in the Executive Department are subject to the prosecutorial
authority of the Special Prosecutor, would seriously place the independence of the Office of the Ombudsman itself at risk. Thus,
even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of the Ombudsman, the
role it performs as an organic component of that Office militates against a differential treatment between the Ombudsman’s
Deputies, on one hand, and the Special Prosecutor himself, on the other. What is true for the Ombudsman must be equally
true, not only for her Deputies but, also for other lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
Special Prosecutor; Under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with
the Ombudsman’s deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same
grant of independence under the Constitution.—In Acop v. Office of the Ombudsman, the Court was confronted with an
argument that, at bottom, the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is,
in fact, separate and distinct from the latter. In debunking that argument, the Court said: Firstly, the petitioners misconstrue
Commissioner Romulo’s statement as authority to advocate that the intent of the framers of the 1987 Constitution was to
place the Office of the Special Prosecutor under the Office of the President. x x x In the second place, Section 7 of Article XI
expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, “shall
continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of
the Ombudsman created under this Constitu-
622tion.” The underscored phrase evidently refers to the Tanodbayan’s powers under P.D. No. 1630 or subsequent
amendatory legislation. It follows then that Congress may remove any of the Tanodbayan’s/Special Prosecutor’s powers under
P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may “exercise such other powers or perform functions or duties as may be provided by law,” it is
indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman.
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman’s
deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence
under the Constitution.
Perlas-Bernabe, J., Concurring and Dissenting Opinion:
Deputy Ombudsman; Betrayal of Public Trust; View that acts that should constitute betrayal of public trust as to warrant
removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other
grounds for impeachment.—I concur with the ponencia in finding the Decision dated March 31, 2011 of the Office of the
President of the Philippines (OP) to be patently erroneous considering that the acts therein attributed to petitioner Emilio A.
Gonzales III (Gonzales), in his capacity as Deputy Ombudsman, do not constitute betrayal of public trust. In the Court’s Decision
dated September 4, 2012 in the main, it was explained that the phrase “betrayal of public trust” refers to acts which are just short
of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of
duty, favoritism, and gross exercise of discretionary powers. In other words, acts that should constitute betrayal of public trust as
to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as
the other grounds for impeachment. The OP, however, dismissed Gonzales based on acts which, as thoroughly detailed and
discussed in the ponencia, do not fit the foregoing legal description. Accordingly, its (OP) decision was tainted with patent
error.623
Constitutional Law; View that Section 8(2) of RA 6770, which confers the Office of the President (OP) with jurisdiction to
discipline not only the Special Prosecutor but also the Deputy Ombudsmen, is wholly constitutional; One must be cognizant of
the rule that every law is presumed constitutional and therefore should not be stricken down unless its provisions clearly and
unequivocally, and not merely doubtfully, breach the Constitution.—To my mind, Section 8(2) of RA 6770, which confers the
OP with jurisdiction to discipline not only the Special Prosecutor but also the Deputy Ombudsmen, is wholly constitutional. To
this end, I join the majority in upholding the provision’s constitutionality insofar as the Special Prosecutor is concerned, but
register my dissent against declaring the provision unconstitutional insofar as the Deputy Ombudsmen are concerned. The
reasons therefor are explained in the ensuing discussion. In dealing with constitutional challenges, one must be cognizant of the
rule that every law is presumed constitutional and therefore should not be stricken down unless its provisions clearly and
unequivocally, and not merely doubtfully, breach the Constitution. It is well-established that this presumption of constitutionality
can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the
challenged act must be struck down.
Same; View that Section 8(2) of RA 6770, both with respect to the Office of the President’s (OP’s) disciplinary authority
over the Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has not been shown that said
provision “clearly and unequivocally” offends any constitutional principle.—Section 8(2) of RA 6770, both with respect to the
OP’s disciplinary authority over the Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has
not been shown that said provision “clearly and unequivocally” offends any constitutional principle. By constitutional design,
disciplinary authority over non-impeachable officers, such as the Special Prosecutor and Deputy Ombudsmen, was left to be
determined by future legislation. This much is clear from the text of the Constitution. Section 2, Article XI of the 1987
Constitution explicitly provides that non-impeachable officers may be removed from office as may be provided by law: Section
2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombuds-
624man may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees
may be removed from office as provided by law, but not by impeachment.
Same; View that while Section 5, Article XI of the 1987 Constitution “created the independent Office of the Ombudsman”
— the provision which is the legal anchor of the majority’s position on this matter — the Constitution neither defines what this
principle of Ombudsman independence means nor prohibits the office’s subjection to an external disciplining authority. —While
Section 5, Article XI of the 1987 Constitution “created the independent Office of the Ombudsman” — the provision which is the
legal anchor of the majority’s position on this matter — the Constitution neither defines what this principle of Ombudsman
independence means nor prohibits the office’s subjection to an external disciplining authority. Meanwhile, what is discoverable
from the deliberations of the Constitutional Commission on Article XI, particularly those which are quoted in the ponencia, is
that the Office of the Ombudsman was merely intended to be a separate office from the Executive. This idea of organizational
separation was meant to obviate the Executive Department from exercising the encompassing powers of control and supervision
over the Office of the Ombudsman. It is only in this regard that the Office of the Ombudsman was deemed by the Framers as
independent.
Same; Office of the Ombudsman; Principle of Checks and Balances; View that the Office of the Ombudsman’s
independence should only be construed in the context of organizational separation which does not, as it should not, obviate the
possibility of having an external disciplining authority over some of its officials pursuant to the checks and balances principle.—
The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter. An officer in control lays down the
rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate
or he may even decide to do it himself. On the other hand, the power of supervision means “overseeing or the authority of an
officer to see to it that the subordinate officers perform their duties.” If the subordinate officers fail or neglect to fulfill their
duties, the official may take
625such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision
means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. The
supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have
discretion to modify or replace them. By virtue of these definitions, it is easy to envision how the Office of the Ombudsman’s
functions would be unduly hampered if it was to be subjected to executive control and supervision: with control, the Office of the
Ombudsman’s actions could be altered, modified or substituted by that of the President, and with supervision, the office would
operate under constant scrutiny of a separate but superior authority. With this in mind, the Office of the Ombudsman’s
independence should only be construed in the context of organizational separation which does not, as it should not, obviate the
possibility of having an external disciplining authority over some of its officials pursuant to the checks and balances principle.
Same; Same; Same; View that the principle of checks and balances is not a general apothegm for total insulation but
rather of functional interrelation. It is clear that no one office of government works in absolute autonomy. —Verily, the principle
of checks and balances is not a general apothegm for total insulation but rather of functional interrelation. It is clear that no one
office of government works in absolute autonomy. To determine the gradations and contours of institutional independence, one
must look into the blueprint of the Constitution which embodies the will and wisdom of the people. This is precisely what Section
2, Article XI of the 1987 Constitution states: non-impeachable officers, such as the Special Prosecutor and the Deputy
Ombudsmen, may be removed from office as may be provided by law. Indeed, this provision coupled with the Framers’ silence
on the meaning of Ombudsman independence should carve out space for Congress to define, by its plenary legislative power
acting as representatives of the people, the parameters of discipline over these so-called non-impeachable officers, including,
among others, the Special Prosecutor and the Deputy Ombudsmen.
Leonen, J., Concurring and Dissenting Opinion:
Office of the Ombudsman; View that the duties of the Ombudsman and Deputy Ombudsman are provided for in Article XI,
Section
62613 of the 1987 Constitution. These include the duty to direct any public official or employee of the government to
perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.—The duties of the Ombudsman and Deputy Ombudsman are provided for in Article XI, Section 13 of the
1987 Constitution. These include the duty to direct any public official or employee of the government to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. Certainly,
it would be betrayal of public trust in the highest order when a Deputy Ombudsman himself committed actions that he is
constitutionally mandated to curtail.
Supreme Court; View that the Supreme Court is a court of general jurisdiction. It has the ability to determine the scope of
the issues it can decide on in order to fulfill its constitutional duty to exercise its judicial power. —The motion for partial
reconsideration reopens the entire case. These cases cannot be fully resolved unless the question of the constitutionality of
Section 8, Paragraph (2) of the Ombudsman Act is again decided by this court. The question whether petitioner Gonzales is guilty
of betrayal of public trust also involves the matter as to whether that ground exists at all. This means that we are constrained to
address the constitutional issue as to whether it is the Office of the President that can constitutionally exercise disciplinary
powers over the Deputy Ombudsman. This court is a court of general jurisdiction. It has the ability to determine the scope of the
issues it can decide on in order to fulfill its constitutional duty to exercise its judicial power. This power must be fully exercised
to achieve the ends of justice.
Office of the Ombudsman; View that any determination of petitioner Gonzales’ liability by this court is contingent on the
constitutionality of Section 8, Paragraph (2) of the Ombudsman Act.—While it appears that the constitutionality of the
Ombudsman Act was not raised in the motion for partial reconsideration, no final determination can be made without addressing
the constitutional point. Any determination of petitioner Gonzales’ liability by this court is contingent on the constitutionality of
Section 8, Paragraph (2) of the Ombudsman Act. This is the basis of the putative disciplinary authority vested in the Office of the
President over the Deputy Ombudsman and the Office of the Special Prosecutor. If this provision is unconsti-
627tutional, then no valid action on this case can emanate from the Office of the President. We cannot be made to issue an
incomplete ruling simply because the motion for reconsideration was partial. We are a full court with full powers with a whole
duty to determine when the Constitution is violated.
Constitutional Law; View that when the Judiciary is asked to ascertain constitutional limitations or invalidate the acts of a
co-equal body such as the Executive, what it puts forward is the supremacy of the Constitution.—When the Judiciary is asked to
ascertain constitutional limitations or invalidate the acts of a co-equal body such as the Executive, what it puts forward is the
supremacy of the Constitution. Since its inception, the Philippine Constitution has always provided for a structured and evolving
system of separation of powers and checks and balances. The landmark case of Angara v. Electoral Commission, 63 Phil. 139
(1936), served as the jurisprudential benchmark for this system: The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government.
Same; Principle of Checks and Balances; View that the principle of checks and balances allows constitutionally enshrined
bodies or organs and governmental departments to correct mistakes and prevent excesses done by other branches.—The
principle of checks and balances and the principle of the separation of powers are not limited to the interaction of the powers of
the Executive, Legislative, and the Judiciary. The principle of checks and balances, as well as separation of powers, also applies
to the interaction of the three branches of government with the other constitutional organs, particularly the Constitutional
Commissions as well as the Office of the Ombudsman. Angara itself was an elaborate examination of the relationship of the three
branches with the Electoral Commission, which this court in Angara ruled was, indeed, an independent consti-
628tutional organ. The principle of checks and balances allows constitutionally enshrined bodies or organs and
governmental departments to correct mistakes and prevent excesses done by other branches. It also ensures a degree of
cooperation while being clear as to what acts may constitute undue encroachments upon another branch’s or organ’s
constitutional duties.
Office of the Ombudsman; View that since those in the executive branch are also subject to the disciplinary authority of
the Office of the Ombudsman, providing the Office of the President (OP) with the power to remove would be an impediment to
the fundamental independence of the Ombudsman.—I agree with the positions of Justice Brion and Justice Abad in their
dissenting opinions on the September 4, 2012 decision that the independence of the Office of the Ombudsman is of such a
fundamental and unequivocal nature. This independence is essential to carry out the functions and duties of the Office of the
Ombudsman. I agree with their position that since those in the executive branch are also subject to the disciplinary authority of
the Office of the Ombudsman, providing the Office of the President with the power to remove would be an impediment to the
fundamental independence of the Ombudsman.
Same; View that it is difficult to imagine how the independence of the Ombudsman can be preserved when the President
has concurring powers to remove her deputies.—The Ombudsman is assisted by the Deputy Ombudsman. There are several
deputies for Luzon, Visayas, Mindanao, and the military. All these deputies take their direction from the Ombudsman. By
constitutional fiat, they cannot take direction from any other constitutional officer. It is difficult to imagine how the independence
of the Ombudsman can be preserved when the President has concurring powers to remove her deputies.
Constitutional Law; View that the text of the Constitution should be read by one guided by, but not limited to, the debates
that happened when it was drafted and ratified. It should also be read in the light of the needs of present times while being
sensitive and addressing precedents existing in our jurisprudence.—Reliance on the debates of the framers of the 1987
Constitution is not the only source for determining the meaning of the text of the Constitution. Resorting to the debates and
proceedings of the constitutional convention shows us the views and standpoints of individual members of the
629convention. It does not show how the sovereign people read the Constitution at the time of ratification. The discussion
of those that drafted the present Constitution is advisory. The text of the Constitution should be read by one guided by, but not
limited to, the debates that happened when it was drafted and ratified. It should also be read in the light of the needs of present
times while being sensitive and addressing precedents existing in our jurisprudence.
Same; View that the 1987 Constitution provides two distinct types of independence as defined in its provisions.—The 1987
Constitution provides two distinct types of independence as defined in its provisions. The first type of independence is
constitutionally enshrined. This means that it can neither be subject to any interference by other branches of government nor can
Congress pass laws that abridge or impair its fundamental independence. This independence is of such a degree and nature that
the very essence of the constitutional body provides for a definitive barrier against legislative or executive intervention. This is
the type of independence enjoyed by the Constitutional Commissions, the Office of the Ombudsman, and — to a certain extent
— the Commission on Human Rights. The second type of independence refers to the Constitution itself allowing Congress to
define the functions that will ensure the independence of specific government offices or agencies. For instance, unlike the
provisions with respect to the Ombudsman, the Constitution provides that the National Economic Development Authority and the
Central Bank will be created and further defined by law.
Special Prosecutor; View that the Special Prosecutor may by law be removed by the President. —The treatment of the
Office of the Special Prosecutor is, however, different. In my view, the Office of the Special Prosecutor may by law be removed
by the President. This is what Section 8, Paragraph (2) of the Ombudsman Act provides.
Same; View that while the Office of the Special Prosecutor is not automatically a part of the Office of the Ombudsman,
there is, however, no reason that Congress and the President may, by law and in their political wisdom, attach the Office of the
Special Prosecutor with the Office of the Ombudsman. There is also no constitutional prohibition for the Office of the Special
Prosecutor to be functionally separate from the Office of the Ombudsman.—By clear constitutional
630design, the Tanodbayan or the Office of the Special Prosecutor is separate from the Office of the Ombudsman. Section
7 is explicit on this point, in that the Office of the Special Prosecutor is allowed to exercise its powers, except for those conferred
on the Office of the Ombudsman. While the Office of the Special Prosecutor is not automatically a part of the Office of the
Ombudsman, there is, however, no reason that Congress and the President may, by law and in their political wisdom, attach the
Office of the Special Prosecutor with the Office of the Ombudsman. There is also no constitutional prohibition for the Office of
the Special Prosecutor to be functionally separate from the Office of the Ombudsman. This is a matter to be addressed by the
political departments. This may also be viewed as a check of both Congress and the President on the powers of the Ombudsman.
Same; View that the inclusion of the Office of the Special Prosecutor with the Office of the Ombudsman in Section 3 of
Republic Act No. 6770 does not ipso facto mean that the Office of the Special Prosecutor must be afforded the same levels of
constitutional independence as that of the Ombudsman and the Deputy Ombudsman.—By clear provision of the Constitution, it
is only the Office of the Ombudsman, which includes her Deputies, that is endowed with constitutional independence. The
inclusion of the Office of the Special Prosecutor with the Office of the Ombudsman in Section 3 of Republic Act No. 6770 does
not ipso facto mean that the Office of the Special Prosecutor must be afforded the same levels of constitutional independence as
that of the Ombudsman and the Deputy Ombudsman. The law simply defines how the Office of the Special Prosecutor is
attached and, therefore, coordinated with the Office of the Ombudsman. Thus, the provision of Section 8, Paragraph (2) of
Republic Act No. 6770 which provides for the power of the President to remove the Special Prosecutor is valid and
constitutional.
Deputy Ombudsman; Ombudsman Act; View that this opinion should not be seen as a sweeping dismissal or acquittal of
the liability of petitioner Gonzales due to the unconstitutionality of Section 8, Paragraph (2) of the Ombudsman Act as far as the
Office of the Deputy Ombudsman is concerned. Petitioner Gonzales must still be held accountable for his actions.—This opinion
should not be seen as a sweeping dismissal or acquittal of the liability of petitioner Gonzales due to the unconstitutionality of
Section 8, Paragraph (2) of the Ombudsman Act as far as the Office of the Deputy Ombudsman is
631concerned. Petitioner Gonzales must still be held accountable for his actions. His actions as described in the report and
in the decision of the Office of the President are troubling. There is need to continue the investigation so that the public may
finally find closure concerning these incidents.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.

Poncevic M. Ceballos for petitioner in G.R. No. 196231.
Camara, Meris & Associates Law Office for petitioner in G.R. No. 196232.

BRION,J.:
We resolve the Office of the President’s (OP’s) motion for reconsideration of our September 4, 2012
Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor
Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No.
6770.2
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that
the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court,
however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings against
her, solely questioned the jurisdiction of the OP to subject her to
_______________
1 Rollo (G.R. No. 196231), pp. 951-1000.
2 The Ombudsman Act of 1989.
632disciplinary proceedings. The Court affirmed the continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is
REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages
corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman is directed to
proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the
continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and
omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section
8(2) of the Ombudsman Act of 1989.3

In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of the
Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the present motion for reconsideration.
Antecedents I.
A.Gonzales’ petition (G.R. No. 196231)

Factual antecedents a.
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal Affairs
Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District Senior Inspector
Rolando Men-
_______________
3 Rollo (G.R. No. 196231), p. 998.
633doza and four others (Mendoza, et al.) for robbery, grave threat, robbery extortion and physical injury. 4On May
29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge for grave misconduct
with the National Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on the same
allegations made by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO),
directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The Office of the Regional
Director of the NAPOLCOM duly complied on July 24, 2008. 6 Mendoza, et al. filed their position papers with
Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City Prosecutor of
Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to substantiate his
allegations.8Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal without prejudice of the
administrative case against Mendoza, et al. for Kalaw’s failure to prosecute. 9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales forwarded the entire
records to the Office of then Ombudsman Merceditas Gutierrez for her review. 10 In his draft decision, Gonzales
found Mendoza, et al. guilty of grave misconduct and imposed on them the penalty of dismissal from the service. 11
_______________
4 Docketed as I.S. No. 08E-09512; id., at pp. 113-116.
5 Id., at p. 87.
6 Id., at p. 231.
7 Id., at p. 88.
8 Id., at pp. 233-235.
9 Id., at p. 128.
10 Id., at p. 91.
11 Id., at pp. 92-97.
634Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’ recommendation on
October 30, 2009. Mendoza, et al. filed a motion for reconsideration 12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to the Criminal
Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009, the case was assigned to
Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for review and recommendation. 14
GIPO Garcia released a draft order 15 to his immediate superior, Director Eulogio S. Cecilio, for appropriate
action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’ office on April 27, 2010.
Gonzales reviewed the draft and endorsed the order, together with the case records, on May 6, 2010 for the final
approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza hijacked a
tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board as hostages. While the
government exerted earnest attempts to peacefully resolve the hostage-taking, it ended tragically, resulting in the
deaths of Mendoza and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the Department of
Interior and Local Government to conduct a joint thorough investigation of the incident. The two departments issued
Joint Department
_______________
12 Id., at pp. 137-152.
13 Id., at pp. 132-136.
14 Id., at p. 15.
15 Id., at pp. 15, 244-248.
16 Id., at p. 16.
635Order No. 01-2010, creating an Incident Investigation and Review Committee (IIRC).

In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable for their
“gross negligence and grave misconduct in handling the case against Mendoza.” 17 The IIRC stated that the
Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for reconsideration, “without justification
and despite repeated pleas” xxx “precipitated the desperate resort to hostage-taking.” 18 The IIRC recommended the
referral of its findings to the OP for further determination of possible administrative offenses and for the initiation of
the proper administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect of Duty
and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office. 20
b.The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the service. 21 According
to the OP, “the inordinate and unjustified delay in the resolution of [Mendoza’s] Motion for Reconsideration [‘that
spanned for nine (9) long months’] xxx amounted to gross neglect of duty” and “constituted a flagrant disregard of
the Office of the Ombudsman’s own Rules of Procedure.”22
17 http://www.gov.ph/2010/09/17/first-report-of-the-iirc-on-the-rizal-park-hostage-taking-incident/ (last accessed on February 2, 2014).
18 Ibid.
19 Ibid.
20 Rollo (G.R. No. 196231), p. 322.
21 Id., at p. 85.
22 Id., at p. 80.
636
c.The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27, 2010. On
May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the Office of the Ombudsman
for final approval. Since the draft order on Mendoza’s motion for reconsideration had to undergo different levels of
preparation, review and approval, the period it took to resolve the motion could not be unjustified, since he himself
acted on the draft order only within nine (9) calendar days from his receipt of the order. 23

B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others, before
the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail
which the prosecution opposed. The Sandiganbayan denied Garcia’s urgent petition for bail on January 7, 2010, in
view of the strength of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered into a
plea bargaining agreement (Agreement) with Garcia.24Garcia thereby agreed to: (i) withdraw his plea of not guilty to
the charge of plunder and enter a plea of guilty to the lesser offense of indirect bribery; and (ii) withdraw his plea of
not
_______________
23 Id., at pp. 49-50.
24 Rollo (G.R. No. 196232), pp. 27, 36-42.
637guilty to the charge of money laundering and enter a guilty plea to the lesser offense of facilitating money
laundering. In exchange, he would convey to the government his ownership, rights and other interests over the real
and personal properties enumerated in the Agreement and the bank deposits alleged in the information. 25
The Sandiganbayan approved the Agreement on May 4, 2010 26 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on Justice of
the House of Representatives to conduct an investigation. After public hearings, the Committee found that Sulit, her
deputies and assistants committed culpable violations of the Constitution and betrayal of public trust — grounds for
removal under Section 8(2) of RA No. 6770.28 The Committee recommended to the President the dismissal from the
service of Sulit and the filing of appropriate charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit. 29 On March 24, 2011, Sulit
filed her Written Explanation, questioning the OP’s jurisdiction. 30 The question of jurisdiction notwithstanding, the
OP set the case for preliminary investigation on April 15, 2011, prompting Sulit to seek relief from this Court.

II.Court’s Ruling
On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare
Section
_______________
25 Id., at pp. 37-41.
26 Id., at p. 98.
27 Id., at pp. 34-35.
28 Id., at pp. 27-30.
29 Id., at pp. 364-365.
30 Id., at pp. 9, 367-375.
6388(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation of
the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely with
respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the
Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J.
Marvic Mario Victor Leonen).

A.Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the Court’s
September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration of our ruling reinstating
Gonzales.
This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case since a serious
constitutional question has been raised and is one of the underlying bases for the validity or invalidity of the
presidential action. If the President does not have any constitutional authority to discipline a Deputy Ombudsman
and/or a Special Prosecutor in the first place, then any ruling on the legal correctness of the OP’s decision on the
merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably anchored on
the final and correct ruling on the constitutional issue, the whole case — including the constitutional issue —
remains alive for the Court’s consideration on motion for reconsideration.
b. The justiciability of the constitutional issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the administrative
disciplinary
639jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable — not a political —
question. A justiciable question is one which is inherently susceptible of being decided on grounds recognized by
law,31 as where the court finds that there are constitutionally-imposed limits on the exercise of the powers conferred
on a political branch of the government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant concurrent
disciplinary authority to the President. Our inquiry is limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA No. 6770
grants where the Constitution confers none. When exercised authority is drawn from a vacuum, more so when the
authority runs counter to a core constitutional principle and constitutional intents, the Court is duty-bound to
intervene under the powers and duties granted and imposed on it by Article VIII of the Constitution.

B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the
people’s medium for airing grievances and for direct redress against abuses and misconduct in the government.
Ultimately, how-
_______________
31 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 637; 338 SCRA 81, 104 (2000).
32 Separate Opinion of Justice Puno in Integrated Bar of the Philippines v. Zamora; id., at p. 661; p. 128.
640ever, these agencies failed to fully realize their objective for lack of the political independence necessary for the
effective performance of their function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate. Pursuant to the 1973
Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607
and PD No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to
investigate, on complaint or motu proprio, any administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat.
Unlike in the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to
enforce the state policy in Section 27, Article II 35 and the standard of accountability in public service under Section
1, Article XI of the 1987 Constitution. These provisions read:
The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft
and corruption. 27. Section
_______________
33 Furthermore, their powers extended to no more than fact-finding and recommending. Uy v. Sandiganbayan, 407 Phil. 154, 167; 354 SCRA 651, 661 (2001).
34 Id., at pp. 169-170; p. 663.
35 Office of the Ombudsman v. Samaniego, G.R. No. 175573, September 11, 2008, 564 SCRA 567, 573.
641
Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. 1.
Section
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the
“protector of the people” against the inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau.36 This constitutional vision of a Philippine Ombudsman practically intends to make
the Ombudsman an authority to directly check and guard against the ills, abuses and excesses of the bureaucracy.
Pursuant to Section 13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
21. SectionOfficial Subject to Disciplinary Authority; Exceptions.—The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities
and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and
their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an “activist watchman,” 37 the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the Constitution and by RA No. 6770, if these actions are rea-
_______________
36 Ledesma v. Court of Appeals, 503 Phil. 396, 408; 465 SCRA 437, 450 (2005); and Office of the Ombudsman v. Samaniego, id.
37 Office of the Ombudsman v. Lucero, G.R. No. 168718, 24 November 2006, 508 SCRA 106, 115.
642sonably in line with its official function and consistent with the law and the Constitution. 38
The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the
pressures and influence of officialdom and partisan politics and from fear of external reprisal by making it an
“independent” office. Section 5, Article XI of the Constitution expressed this intent, as follows:
There is hereby created the 5. Section independentOffice of the Ombudsman, composed of the Ombudsman to be
known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate
Deputy for the military establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government
constitutional agency that is considered “a notch above other grievance-handling investigative bodies.” 39 It has
powers, both constitutional and statutory, that are commensurate with its daunting task of enforcing
accountability of public officers.40
_______________
38 Office of the Ombudsman v. Samaniego, supra note 35.
39 Department of Justice v. Liwag, G.R. No. 149311, February 11, 2005, 491 Phil. 270, 283; 451 SCRA 83, 96.
40 It is not only given an “active role” in the enforcement of laws on anti-graft and corrupt practices and related offenses (Uy v.
Sandiganbayan, supra note 33), its recommendation to a concerned public officer of taking an appropriate action against an erring subordinate is
not merely advisory but mandatory within the bounds of law (Ledesma v. Office of the Ombudsman, Section 13(3), Article XI of the 1987
Constitution, Section 15[3] of RA No. 6770).
643
b. “Independence” of constitutional
bodies vis-a-vis the Ombudsman’s
independence
Under the Constitution, several constitutional bodies have been expressly labeled as “independent.”41 The extent
of the independence enjoyed by these constitutional bodies however varies and is to be interpreted with two
significant considerations in mind: first, the functions performed or the powers involved in a given case; and second,
consistency of any allowable interference to these powers and functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions
shares certain characteristics — they do not owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution
intended that these “independent” bodies be insulated from political pressure to the extent that the absence of
“independence” would result in the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the interference that the
President may bring and maintained that the independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal system.
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 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.
The constitutional deliberations explain the Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the effectivity
of this body is dependent on its freedom from the tentacles of politics. 43 In a similar manner, the deliberations of
the 1987 Constitution on the Commission on Audit highlighted the developments in the past Constitutions geared
towards insulating the Commission on Audit from political pressure. 44
Notably, the Constitution also created an “independent” Commission on Human Rights, although it enjoys a
lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal autonomy is granted to the
constitutional commissions. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the Commission independent from the executive branch and other political
leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position of the committee is that we need a body that would be
able to work and cooperate with the executive because the Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the executive branch of the government but also of the judicial branch
of government. This is going to be a permanent constitutional commission over time. We also want a commission to
function even under the worst circumstance when the executive may not be very cooperative. However, the question
in our mind is: Can it still function during that time? Hence, we are willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need for coordination and cooperation. We also would like to build in
some safeguards that it will not be rendered useless by an uncooperative executive.
x x x x
MR. GARCIA. x x x Very often, when international commissions or organizations on human rights go to a country, the
most credible organizations are independent human rights bodies. Very often these are private organizations, many of
which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are proposing is an
independent body on human rights, which would provide governments with credibility precisely because it is
independent of the present administration. Whatever it says on the human rights situation will be credible because it is
not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition today and
those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission on Human
Rights that would investigate and make sure that the rights of each one is protected, then we shall have a body that
could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so on. 45

These deliberative considerations abundantly show that the independent constitutional commissions have been
consistently intended by the framers to be independent from executive control or supervision or any form of
political influence. At least insofar as these bodies are concerned, jurisprudence is not scarce on how the
“independence” granted to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been characterized
under the Constitution as “independent,” are not under the control of the President, even if they discharge functions
that are executive in nature. The Court declared as unconstitutional the President’s act of temporarily appointing the
respondent in that case as Acting Chairman of the Comelec “however well-meaning” 47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed under the discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution
to be independent — as the Commission on Human Rights — and vested with the delicate and vital functions of
investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial
measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman
and Members is made dependent on the pleasure of the President.Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec, 49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a “trampling” of the constitutional mandate of independence of this body.
Obviously, the mere review of rules places considerably less pressure on a constitutional body than the Executive’s
power to discipline and remove key officials of the Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior — but is similar
in degree and kind — to the independence similarly guaranteed by the Constitution to the Constitutional
Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its
existence and proper functioning.50

c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the De-
puty Ombudsman violates the
independence of the Office of
the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other,
in protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to
invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the
President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s
disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman
itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked
to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with
the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle
of checks and balances that the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents
of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her
complete trust in her subordinate officials who are not as independent as she is, if only because they are subject to
pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in
a young democracy like the Philippines where graft and corruption is still a major problem for the government. For
these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy
Ombudsman) should be declared void.
The deliberations of the Constitutional Commission on the independence of the Ombudsman fully support this
position. Commissioner Florenz Regalado of the Constitutional Commission expressed his apprehension that any
form of presidential control over the Office of the Ombudsman would diminish its independence. 51 The following
exchanges between Commissioners Blas Ople and Christian Monsod further reveal the constitutional intent to keep
the Office of the Ombudsman independent from the President:
MR. OPLE. x x x
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public service and
the integrity of the President of the Philippines, instead of creating another agency in a kind of administrative limbo which
would be accountable to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the report, it
was the opinion of the Committee — and I believe it still is — that it may not contribute to the effectiveness of this office
of the Ombudsman precisely because many of the culprits in inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation of the Tanodbayan which was under the tremendous
influence of the President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will give true meaning to the
concept of Ombudsman. Therefore, we regret that we cannot accept the proposition. 52
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to
remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over them,
would result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on
the integrity and competence of the very persons who can remove or suspend its members. Equally relevant is
the impression that would be given to the public if the rule were otherwise. A complainant with a grievance against a
high-ranking official of the Executive, who appears to enjoy the President’s favor, would be discouraged from
approaching the Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would
erode the constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption
and bureaucracy.

d. The mutual-protection argument
for crafting Section 8(2) of RA No.
6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external
check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her Deputies.
While the preceding discussion already suffices to address this concern, it should be added that this concern
stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the
Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of
Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned
before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and
employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same
time,
653the Court remains consistent with its established rulings — that the independence granted to the Constitutional
Commissions bars any undue interference from either the Executive or Congress — and is in full accord with
constitutional intent.

e. Congress’ power determines
the manner and causes for
the removal of non-impeach-
able officers is not a carte
blanch authority
Under Section 2, Article XI of the 1987 Constitution, 53Congress is empowered to determine the modes of
removal from office of all public officers and employees except the President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable
officials.
The intent of the framers of the Constitution in providing that “[a]ll other public officers and employees may be
removed from office as provided by law, but not by impeachment” in the second sentence of Section 2, Article XI is
to prevent Congress from extending the more stringent rule of “removal only by impeachment” to favored public
officers.54 Understandably so, impeachment is the most difficult and cumbersome mode of removing a public officer
from office. It is, by its nature, a sui generis politico-legal process 55 that signals the need for a judicious and careful
handling as shown by the process required to initiate the proceeding; 56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment; 58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt. 60 All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an impeachment proceeding
entails, thus justifying its limited application only to the officials occupying the highest echelons of responsibility in
our government. To name a few, some of the negative practical effects of impeachment are: it stalls legislative work;
it is an expensive process in terms of the cost of prosecution alone; and, more importantly, it is inherently divisive of
the nation.61
Thus, in a cost-benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to
otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be read.
Contrary to the implied view of the minority, in no way can this provision be regarded as blanket authority for
Congress to provide for any ground of removal it deems fit. While the manner and cause of removal are left to
congressional determination, this must still be consistent with constitutional guarantees and principles, namely: the
right to procedural and substantive due process; the constitutional guarantee of security of tenure; the principle of
separation of powers; and the principle of checks and balances.62
In short, the authority granted by the Constitution to Congress to provide for the manner and cause of removal of
all other public officers and employees does not mean that Congress can ignore the basic principles and precepts
established by the Constitution.
In the same manner, the congressional determination of the identity of the disciplinary authority is not a blanket
authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under
the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is
observed and any possible absurdity resulting from a contrary interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle of
independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec 63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions.
One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such
as the COMELEC shall be “independent.”
While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended as a
measure of protection for the Deputy Ombudsman and Special Prosecutor — since these grounds are not intended to
cover all kinds of official wrongdoing and plain errors of judgment — this argument seriously overlooks the erosion
of the independence of the Office of the Ombudsman that it creates. The mere fact that a statutorily-created sword of
Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up all the channels for external pressures and
influence of officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abusesdefeats the very purpose of granting independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform to the high standard required in
determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s power of
removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of
independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same
ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its decision
finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust is
patently erroneous. The OP’s decision perfectly illustrates why the requirement of impeachment-grounds in Section
8(2) of RA No. 6770 cannot be considered, even at a minimum, a measure of protection of the independence of the
C.The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg
to stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The assailed
Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself, and
other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the resolution of
Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009 xxx amounted to gross neglect of duty
and/or inefficiency in the performance of official duty. 64
b. No gross neglect of duty
or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 – Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration; 66
2. December 14, 200967 – GIPO Garcia, who was assigned to review these motions and make his
recommendation for the appropriate action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate superior, Dir.
Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order; 69
5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales endorsed the
draft order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were already pending
before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting or omitting to
act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In the case of public officials, there is gross
negligence when a breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case forwarded to
him within nine days. In finding Gonzales guilty, the OP72relied on Section 8, Rule III of Administrative Order No.
7 (or the Rules of Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling that Gonzales
should have acted on Mendoza’s Motion for Reconsideration within five days:
order by the party on the basis of any of the following grounds:

New evidence had been discovered which materially affects the order, directive or decision; a)
Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest of the movant. b)
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall resolve the
same within five (5) days from the date of submission for resolution. [emphasis and underscore ours]

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since he is a
Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer tasked with the
initial resolution of the motion. In Section 6 of Administrative Order No. 7 on the resolution of the case and
submission of the proposed decision, the period for resolving the case does not cover the period within which it
should be reviewed:
6. SectionRendition of decision.—Not later than thirty (30) days after the case is declared submitted for
resolution, the Hearing Officer shall submit a proposed decision containing his findings and recommendation for the
approval of the Ombudsman. Said proposed decision shall be reviewed by the Directors, Assistant Ombudsmen and
Deputy Ombudsmen concerned. With respect to low ranking public officials, the Deputy Ombudsman concerned
shall be the approving authority. Upon approval, copies thereof shall be served upon the parties and the head of the
office or agency of which the respondent is an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]
661Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five days, to
review a case was totally baseless.
c. No actionable failure to
supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates to promptly act on Mendoza’s motion
and apprised the Tanodbayan of the urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases that involve
the potential loss of employment of many other public employees. We cannot conclusively state, as the OP appears
to suggest, that Mendoza’s case should have been prioritized over other similar cases. The Court has already taken
judicial notice of the steady stream of cases reaching the Office of the Ombudsman. 73 This consideration certainly
militates against the OSG’s observation that there was “a grossly inordinate and inexcusable delay” 74 on the part of
Gonzales.
Equally important, the constitutional guarantee of “speedy disposition of cases” before, among others, quasi-
judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus, the delay, if any, must be
measured in this objective constitutional sense. Unfortunately, because of the very statutory grounds relied upon by
the OP in dismissing Gonzales, the political and, perhaps, “practical” considerations got the better of what is legal
and constitutional.
The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their work. While
GIPO Garcia reviewed the case and drafted the order for more than three months, it is noteworthy that he had not
drafted the initial decision and, therefore, had to review the case for the first time. 77 Even the Ombudsman herself
could not be faulted for acting on a case within four months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the records,
research on the pertinent laws and jurisprudence, and exercise of legal judgment and discretion. If this Court rules
that these periods per se constitute gross neglect of duty, the Ombudsman’s constitutional mandate to prosecute all
the erring officials of this country would be subjected to an unreasonable and overwhelming constraint. Similarly, if
the Court rules that these periods per se constitute gross neglect of duty, then we must be prepared to reconcile this
with the established concept of the right of speedy disposition of cases — something the Court may be hard put to
justify.

d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case endorsed to
the Office of the Ombudsman and by resolving it against Mendoza on the basis of the unverified complaint-affidavit
of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based
merely on the request of the alleged victim’s father. The Constitution empowers the Ombudsman and her Deputies
to act promptly on complaints filed in any form or manner against any public official or employee of the
government.78This provision is echoed by Section 13 of RA No. 6770, 79and by Section 3, Rule III of Administrative
Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the unverified
affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt on the part of
Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that they had arrested Kalaw based
on two traffic violations and allowed him to stay the whole night until the following morning in the police precinct.
The next morning, Kalaw was allowed to leave the precinct despite his failure to show a valid license and based
merely on his promise to return with the proper documents. 81 These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper procedure for the
apprehension of traffic violators would be to give them a ticket and to file a case, when appropriate. 82
Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the decision of the
PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot tie the hands of any judicial or
quasi-judicial body by ruling that it should always concur with the decisions of other judicial or quasi-judicial bodies
which may have also taken cognizance of the case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has specifically granted to this office and would nullify the very
purpose for which it was created.

e. Penalty of dismissal to-
tally incommensurate
with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be held liable for our own
misdeeds; we can be made to account only for lapses in our responsibilities. It is notable that of all the officers, it
was Gonzales who took the least time — nine days — followed by Cecilio, who took 21 days; Garcia — the writer
of the draft — took less than four months, and the Ombudsman, less than four months until the kidnapping
incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does not preclude
the Ombudsman from looking into any other possible administrative liability of Gonzales under existing Civil
Service laws, rules and regulations.
666
D.The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the
time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the
independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special
Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770
should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the
Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman, known as
the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand
Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the “Chief Special Prosecutor” (CSP) was given the “exclusive authority” to
conduct preliminary investigation and to prosecute cases that are within the jurisdiction of the Sandiganbayan. 87 PD
No. 1486 expressly gave the Secretary of Justice the power of control and supervision over the Special
Prosecutor.88 Consistent with this grant of power, the law also authorized the Secretary of Justice to appoint or detail
to the Office of the CSP “any officer or employee of Department of Justice or any Bureau or Office under the
executive supervision thereof” to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away from it by the
Office of the CSP. The law “created in the Office of the Tanodbayan an Office of the Chief Special
Prosecutor” under the Tanodbayan’s control,90 with the exclusive authority to conduct preliminary investigation
and prosecute all cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law also empowered the
Tanodbayan to appoint Special Investigators and subordinate personnel and/or to detail to the Office of the CSP any
public officer or employees who “shall be under the supervision and control of the Chief Special Prosecutor.” 91 In
1979, PD No. 1630 further amended the earlier decrees by transferring the powers previously vested in the
Special Prosecutor directly to the Tanodbayan himself. 92 This was the state of the law at the time the 1987
Constitution was ratified. Under the 1987 Constitution, an “independent Office of the Ombudsman” is created. 93 The
existing Tanodbayan is made the Office of the Special Prosecutor, “who shall continue to function and exercise
its powers as now94 or hereafter may be provided by law.”95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the
Office of the Ombudsman. 96 Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may
exercise “such other powers or perform such functions or duties as may be provided by law.” Pursuant to this
constitutional command, Congress enacted RA No. 6770 to provide for the functional and structural organization of
the Office of the Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman,
including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special
Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman, his
Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case of
vacancy in these positions, the law requires that the vacancy be filled within three (3) months from occurrence. 97
The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
_______________
94 PD No. 1630.
95 CONSTITUTION, Article XI, Section 7.
96 Under RA No. 6770, however, it is the President himself which appoints the Special Prosecutor. This may even be an argument of the
legislative intent to treat the Special Prosecutor, in much the same way, as the Ombudsman’s Deputies themselves that justify the same
recognition of freedom from the disciplinary authority of the President on the same ground of independence of the Office of the Ombudsman.
97 RA No. 6770, Section 4.
669qualifications,100 rank and salary are likewise the same. 101The requirement on disclosure102 is imposed on the
Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman,
the Overall Deputy cannot assume the role of Acting Ombudsman; the President may designate any of the Deputies
or the Special Prosecutor as Acting Ombudsman. 103 The power of the Ombudsman and his or her deputies to require
other government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both under the
1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the Deputy Ombudsman
from the disciplinary authority of the OP and yet expose the Special Prosecutor to the same ills that a grant of
independence to the Office of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside
from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the
Ombudsman and by granting the Ombudsman control and supervision over that office. 105 This power of control and
supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor
as he/she may deem fit. Thus, by constitutional design, the Special Prosecutor is by no means
an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her
duties, which include investigation
_______________
102 RA No. 6770, Section 10.
103 RA No. 6770, Section 8(3).
104 RA No. 6770, Section 33.
105 RA No. 6770, Section 11(3) and (4).
670and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases within
the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For
emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter
egos and officials in the Executive Department are subject to the prosecutorial authority of the Special
Prosecutor, would seriously place the independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of
the Ombudsman, the role it performs as an organic component of that Office militates against a differential
treatment between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other. What
is true for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials
of that Office who act directly as agents of the Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom, the Office of
the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is, in fact, separate and
distinct from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo’s statement as authority to advocate that the intent
of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the
President. x x x
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be
_______________
106 G.R. No. 120422, September 27, 1995, 248 SCRA 568.
671henceforth known as the Office of the Special Prosecutor, “shall continue to function and exercise its powers as now
or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this
Constitution.” The underscored phrase evidently refers to the Tanodbayan’s powers under P.D. No. 1630 or subsequent
amendatory legislation. It follows then that Congress may remove any of the Tanodbayan’s/Special Prosecutor’s powers
under P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13,
Article XI of the Constitution, the Ombudsman may “exercise such other powers or perform functions or duties as may be
provided by law,” it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the
Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the
Ombudsman’s deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the
same grant of independence under the Constitution.
III.SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7, 108 the Court resolved to reverse its September 4, 2012
Decision insofar as petitioner Gonzales is concerned(G.R. No.
_______________
107 Id., at pp. 580-581.
108 The eight (8) Justices in the majority are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P.
Bersamin, Roberto A. Abad, Jose Portugal Perez, Jose Catral Mendoza, and Marvic Mario Victor F. Leonen. The seven (7) dissenting Justices
are: Chief Justice Maria Lourdes P. A. Sereno, Antonio T. Carpio, Diosdado M. Peralta, Mariano C. del Castillo, Martin S. Villarama, Jr.,
Bienvenido L. Reyes, and Estela M. Perlas-Bernabe.
672196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No.
6770insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be
constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys
under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL.
This ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but
is without prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into
the possible administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws,
rules and regulations.
SO ORDERED.
Velasco, Jr., Leonardo-De Castro, Bersamin, Abad, Perez and Mendoza, JJ., concur.
Sereno, CJ. and Peralta, J., I join J. Bernabe’s opinion.
Carpio, J., I join J. Bernabe’s Dissenting Opinion.
_______________
109 The eight (8) Justices in the majority are: Chief Justice Maria Lourdes P. A. Sereno, Antonio T. Carpio, Diosdado M. Peralta,
Mariano C. del Castillo, Martin S. Villarama, Jr., Bienvenido L. Reyes, Estela M. Perlas-Bernabe and Marvic Mario Victor F. Leonen. The seven
(7) dissenting Justices are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin, Roberto A. Abad, Jose
Portugal Perez, and Jose Catral Mendoza.
673
Del Castillo, J., I concur with the position of J. Bernabe.
Villarama, Jr., J., Concur with J. Bernabe.
Reyes, J., I concur with J. Bernabe’s position.
Perlas-Bernabe, J., Pls. see Concurring & Dissenting Opinion.
Leonen, J., See Separate Concurring and Dissenting Opinion.
PERLAS-BERNABE,J.:
I concur with the ponencia in finding the Decision dated March 31, 2011 of the Office of the President of the
Philippines (OP) to be patently erroneous considering that the acts therein attributed to petitioner Emilio A.
Gonzales III (Gonzales), in his capacity as Deputy Ombudsman, do not constitute betrayal of public trust. In the
Court’s Decision dated September 4, 2012 in the main, 1 it was explained that the phrase “betrayal of public trust”
refers to acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical
abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. In other
words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than
criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for
impeachment.2 The OP, however, dismissed Gonzales based on acts which, as thoroughly detailed and discussed in
the ponencia, do not fit the foregoing legal description. Accordingly, its (OP) decision was tainted with patent error.
Nevertheless, since the majority voted to declare the jurisdictional basis for the OP’s authority to discipline the
Deputy Ombudsmen under Section 8(2) 3 of Republic Act No. (RA) 67704 as unconstitutional, the fallo of
the ponencia states that any further ruling on the dismissal of Gonzales is rendered unnecessary, viz.:5
WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This
ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is without
prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into the possible
administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.
SO ORDERED.

I dissent.
To my mind, Section 8(2) of RA 6770, which confers the OP with jurisdiction to discipline not only the Special
Prosecutor but also the Deputy Ombudsmen, is wholly constitutional. To this end, I join the majority in upholding
the provision’s constitutionality insofar as the Special Prosecutor is concerned, but register my dissent against
declaring the provision unconstitutional insofar as the Deputy Ombudsmen are concerned. 6 The reasons therefor are
explained in the ensuing discussion.
In dealing with constitutional challenges, one must be cognizant of the rule that every law is presumed
constitutional and therefore should not be stricken down unless its provisions clearly and unequivocally, and not
merely doubtfully, breach the Constitution.7 It is well-established that this presumption of constitutionality can be
overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot
escape, that the challenged act must be struck down.8
In Victoriano v. Elizalde Rope Workers’ Union, 9 the judicious instruction is that the “challenger must negate all
possible bases” and the adjudicating tribunal must not concern itself with the “wisdom, justice, policy, or
expediency of a statute”; “if any reasonable basis may be conceived which supports the statute, it will be upheld”: 10
All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality
must prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it unconstitutional;
that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must
negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a
statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be
adopted. (Emphasis supplied)
Similarly, as held in Salvador v. Mapa,11 it was held that an “arguable implication” is not enough to strike down
the statute subject of constitutional scrutiny; thus, the guiding notion is that “to doubt is to sustain”:12
The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and unequivocal
breach of the Constitution, not a doubtful or arguable implication; a law shall not be declared invalid unless the conflict
with the Constitution is clear beyond reasonable doubt. The presumption is always in favor of constitutionality. To doubt
is to sustain. x x x. (Emphases supplied)
Applying this framework, Section 8(2) of RA 6770, both with respect to the OP’s disciplinary authority over the
Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has not been shown that
said provision “clearly and unequivocally” offends any constitutional principle. By constitutional design,
disciplinary authority over non-impeachable officers, such as the Special Prosecutor and Deputy Ombudsmen, was
left to be determined by future legislation. This much is clear from the text of the Constitution. Section 2, Article XI
of the 1987 Constitution explicitly provides that non-impeachable officers may be removed from office as may be
provided by law:
The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. 2. Section All other
public officers and employees may be removed from office as provided by law, but not by impeachment. (Emphasis
and underscoring supplied)
While Section 5, Article XI of the 1987 Constitution “created the independent Office of the Ombudsman” — the
provision which is the legal anchor of the majority’s position on this matter — the Constitution neither defines what
this principle of Ombudsman independence means nor prohibits the office’s subjection to an external disciplining
authority.
678Meanwhile, what is discoverable from the deliberations of the Constitutional Commission on Article XI,
particularly those which are quoted in the ponencia,13 is that the Office of the Ombudsman was merely intended to be
a separate office from the Executive. This idea of organizational separation was meant to obviate the Executive
Department from exercising the encompassing powers of control and supervision over the Office of the
Ombudsman. It is only in this regard that the Office of the Ombudsman was deemed by the Framers as independent.
To be sure, the power of control is the power of an officer to alter or modify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.
An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion,
order the act undone or re-done by his subordinate or he may even decide to do it himself. On the other hand, the
power of supervision means “overseeing or the authority of an officer to see to it that the subordinate officers
perform their duties.” If the subordinate officers fail or neglect to fulfill their duties, the official may take such
action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means
no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.
The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor
does he have discretion to modify or replace them. 14 By virtue of these definitions, it is easy to envision how the
Office of the Ombudsman’s functions would be unduly hampered if it was to be subjected to executive control and
supervision: with control, the Office of the Ombudsman’s actions could be altered, modified or substituted by that of
the President, and with supervision, the office would operate under constant scrutiny of a separate but superior
authority. With this in mind, the Office of the Ombudsman’s independence should only be construed in the context
of organizational separation which does not, as it should not, obviate the possibility of having an external
disciplining authority over some of its officials pursuant to the checks and balances principle.
Verily, the principle of checks and balances is not a general apothegm for total insulation but rather of functional
interrelation. It is clear that no one office of government works in absolute autonomy. To determine the gradations
and contours of institutional independence, one must look into the blueprint of the Constitution which embodies the
will and wisdom of the people. This is precisely what Section 2, Article XI of the 1987 Constitution states: non-
impeachable officers, such as the Special Prosecutor and the Deputy Ombudsmen, may be removed from office as
may be provided by law. Indeed, this provision coupled with the Framers’ silence on the meaning of Ombudsman
independence should carve out space for Congress to define, by its plenary legislative power acting as
representatives of the people, the parameters of discipline over these so-called non-impeachable officers, including,
among others, the Special Prosecutor and the Deputy Ombudsmen.
In any event, without a prohibition that may be clearly and unequivocally ascertained from the text and
deliberations of the Constitution against the disciplinary authority provided under Section 8(2) of RA 6770, the
overriding approach should operate — to doubt is to sustain; all doubts are to be construed in favor of
constitutionality.
Accordingly, I vote to uphold the constitutionality of Section 8(2) of RA 6770 in its entirety.
LEONEN,J.:
I vote to dismiss the motion for partial reconsideration. 1However, the constitutional challenge to Section 8,
Paragraph (2) of Republic Act No. 6770 2 or the Ombudsman Act insofar as the Deputy Ombudsman is concerned
should succeed.
On August 23, 2010, dismissed Manila Police District Police Senior Inspector (Captain) Rolando del Rosario
Mendoza took hostage a Hong Kong tour group with three families, two couples, a mother and daughter, and a tour
leader at the Quirino Grandstand.3 Apparently, he was driven to despondency by many causes. This included his
frustration with a case4 pending against him at the Office of the Ombudsman. In a decision 5 dated February 16, 2009,
the Office of the Ombudsman found Mendoza and four others liable for grave misconduct. This led to Mendoza’s
dismissal from the Philippine National Police as well as the forfeiture of his retirement benefits.
The Ombudsman exercised jurisdiction over this case by virtue of a letter which was issued motu proprio by
petitioner, Emilio Gonzales III, to endorse the pending case to his office for administrative adjudication. 6 This was
despite the fact that the same case against Rolando Mendoza was already “dismissed by the Manila City Prosecutors
Office for lack of probable cause and by the [Philippine National Police–National Capital Region] Internal Affairs
Service for failure of the complainant to submit evidence and prosecute the case.”7
According to the Office of the President, petitioner Gonzales did not state a reason for the endorsement of the
case to the Office of the Ombudsman.8 The Office of the President also found that the Office of the Deputy
Ombudsman made Atty. Clarence V. Guinto of the Philippine National Police-Criminal Investigation and Detection
Group-National Capital Region serve as the nominal complainant in the case against Mendoza. 9 Atty. Guinto did not
even summon or compel Christian Kalaw, the original complainant in the case against Mendoza, to affirm his
complaint-affidavit10before the Ombudsman or require Kalaw to “submit any position paper as required.”11
At one point during the hostage-taking incident, Manila City Vice Mayor Francisco “Isko” Moreno interceded.
He was already at the Office of the Ombudsman when he asked Mendoza if there was someone there that he wanted
to talk to. Mendoza was very thankful to Vice Mayor Moreno and requested if he could talk to a certain Director
Gonzales of the Office of the Ombudsman.
Mendoza spoke to Deputy Ombudsman Gonzales. After some time, Mendoza was heard shouting and uttering
invectives: “Putang ina mo, humihingi ka pa ng P150,000 para sa kaso ko, kung may mamamatay dito kasalanan
mo lahat! (You son of a bitch, you are asking for P150,000 for my case, if anyone dies here it’s all your fault!).” 12
Moreno overheard Gonzales say, “O wala akong alam diyan (I don’t know anything about that).”13
Emilio Gonzales III could have betrayed the public trust.
The Office of the President acted on what it saw as substantial evidence that Deputy Ombudsman Gonzales
delayed acting on the motion for reconsideration 14 of the late Rolando Mendoza and that Gonzales asked for
P150,000.00 to decide on the case. This was also the finding of the Incident Investigation and Review
Committee15 created after the hostage-taking incident.
The duties of the Ombudsman and Deputy Ombudsman are provided for in Article XI, Section 13 of the 1987
Constitution.16 These include the duty to direct any public official or employee of the government to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.17Certainly, it would be betrayal of public trust in the highest order when a Deputy
Ombudsman himself committed actions that he is constitutionally mandated to curtail.
This case came to this court through a petition for certiorari18 filed by Emilio Gonzales III (docketed as G.R. No.
196231) alleging grave abuse of discretion on the part of the Office of the President for its decision 19 dated March
31, 2011. This was consolidated with G.R. No. 196232, a petition for certiorari and prohibition20 filed by Wendell
Barreras-Sulit against the order21 of the Office of the Executive Secretary.
The other case consolidated with the case of Emilio Gonzalez III involves an order issued by the Office of the
Executive Secretary to petitioner Special Prosecutor Wendell Barreras-Sulit. The order required her to submit a
written explanation why no disciplinary action should be taken against her, based on her role in securing a plea
bargaining agreement in favor of Major Carlos P. Garcia.
Major Carlos P. Garcia was accused of embezzling millions of pesos and dollars as well as amassing properties
in violation of the Plunder Law. The Committee on Justice of the House of Representatives found that petitioner
Barreras-Sulit committed acts that were tantamount to culpable violation of the Constitution and betrayal of public
trust. Hence, a case docketed as OP-DC-Case No. 11-B-003 was filed by the Office of the President against
petitioner Barreras-Sulit and was set for preliminary investigation.
Both cases were consolidated because they raised the issue of the constitutionality of Section 8, Paragraph (2) of
Republic Act No. 6770 or the Ombudsman Act. Petitioners questioned the constitutionality of this provision, which
states that the Office of the President may remove the Deputy Ombudsman and Special Prosecutor from office on
the grounds of removal of the Ombudsman and after due process.
The initial voting of this court on whether Gonzales could be found liable for betrayal of the public trust was 14-
0. All the Justices then agreed that there was no substantial basis to support the finding of the Office of the
President. On the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act, the vote was evenly split.
Seven voted to declare the provision unconstitutional. The other seven voted to uphold. Thus, in its September 4,
2012 decision,22 this court denied the challenge to the constitutionality of Section 8, Paragraph (2) of the
Ombudsman Act and ordered the reinstatement of Gonzales and the continuation of the proceedings against
Barreras-Sulit.23 This court then granted Gonzales’ petition certiorari,24 insofar as it reversed the public respondent
Office of the President’s decision in OP Case No. 10-J-460.
The Office of the Solicitor General then filed a motion for partial reconsideration 25 dated October 10, 2012 of the
September 4, 2012 decision of this court. As its sole ground for allowance, the motion for partial reconsideration
raised that the Office of the President did not gravely abuse its discretion when it found “petitioner Gonzales guilty
of betrayal of public trust and imposed upon him the penalty of dismissal from office.” 26
In my view, the motion for partial reconsideration raises three issues that require discussion.
The first issue is whether the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act was reopened
even if this was not raised in the actual motion for partial reconsideration of the Office of the Solicitor General.
The second issue is whether Section 8, Paragraph (2) of the Ombudsman Act is constitutional.
The third issue is whether the actions of petitioner Emilio Gonzales III constitute betrayal of public trust and
warrant his dismissal from his position, assuming that Section 8, Paragraph (2) of the Ombudsman Act is
constitutional.
The motion for partial reconsideration reopens the entire case. These cases cannot be fully resolved unless the
question of the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act is again decided by this court.
The question whether petitioner Gonzales is guilty of betrayal of public trust also involves the matter as to whether
that ground exists at all. This means that we are constrained to address the constitutional issue as to whether it is the
Office of the President that can constitutionally exercise disciplinary powers over the Deputy Ombudsman.
This court is a court of general jurisdiction. It has the ability to determine the scope of the issues it can decide on
in order to fulfill its constitutional duty to exercise its judicial power. This power must be fully exercised to achieve
the ends of justice.
Judicial power includes determining the constitutionality of the actions of a branch of government. In Luz Farms
v. Secretary of the Department of Agrarian Reform,27 this court held:
It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that
the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have
been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of
the case itself x x x.
However, despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not
hesitate to declare a law or act invalid when it is convinced that this must be done. x x x Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate “to make the hammer
fall heavily,” where the acts of these departments, or of any official, betray the people’s will as expressed in the
Constitution x x x.

Thus, where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the
judiciary to declare what the other branches of the government had assumed to do, as void. This is the essence of judicial power
conferred by the Constitution “(I)n one Supreme Court and in such lower courts as may be established by law” (Art. VIII, Section
1 of the 1935 Constitution; Article X, Section I of the 1973 Constitution and which was adopted as part of the Freedom
Constitution, and Article VIII, Section 1 of the 1987 Constitution) and which power this Court has exercised in many instances.
(Citations omitted)28

The constitutional challenge must be squarely addressed and threshed out in its entirety because the
constitutionality of the law itself is the very lis mota of the case. In People v. Vera,29 this court first presented the
idea of lis mota:
It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is
properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must
be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782,
783.)30
In line with the doctrine of Vera, this court’s disposition of the case depends on a final determination of the
constitutionality of Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act.
While it appears that the constitutionality of the Ombudsman Act was not raised in the motion for partial
reconsideration, no final determination can be made without addressing the constitutional point.
Any determination of petitioner Gonzales’ liability by this court is contingent on the constitutionality of Section
8, Paragraph (2) of the Ombudsman Act. This is the basis of the putative disciplinary authority vested in the Office
of the President over the Deputy Ombudsman and the Office of the Special Prosecutor. If this provision is
unconstitutional, then no valid action on this case can emanate from the Office of the President.
We cannot be made to issue an incomplete ruling simply because the motion for reconsideration was partial. We
are a full court with full powers with a whole duty to determine when the Constitution is violated.
In Juco v. Heirs of Tomas Siy Chung Fu,31 this court elaborated on the effect of a motion for reconsideration:
A motion for reconsideration has the effect of suspending the statutory period after which an order, decision, or judgment,
in connection with which said motion was filed, becomes final. In effect, such motion for reconsideration has prevented
the decision from attaining finality.32
This case can be adjudicated in its entirety because the September 4, 2012 decision of this court has not yet
achieved finality.
II
When the Judiciary is asked to ascertain constitutional limitations or invalidate the acts of a co-equal body such
as the Executive, what it puts forward is the supremacy of the Constitution. Since its inception, the Philippine
Constitution has always provided for a structured and evolving system of separation of powers and checks and
balances. The landmark of Angara v. Electoral Commission33 served as the jurisprudential benchmark for this
system:
The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. 34
The principle of checks and balances and the principle of the separation of powers are not limited to the
interaction of the powers of the Executive, Legislative, and the Judiciary. The principle of checks and balances, as
well as separation of powers, also applies to the interaction of the three branches of government with the other
constitutional organs, particularly the Constitutional Commissions as well as the Office of the
Ombudsman. Angara itself was an elaborate examination of the relationship of the three branches with the Electoral
Commission, which this court in Angara ruled was, indeed, an independent constitutional organ.
The principle of checks and balances allows constitutionally enshrined bodies or organs and governmental
departments to correct mistakes and prevent excesses done by other branches. It also ensures a degree of cooperation
while being clear as to what acts may constitute undue encroachments upon another branch’s or organ’s
constitutional duties.
Section 8, Paragraph (2) of Republic Act No. 6770 provides:
8. SectionRemoval; Filling of Vacancy .—
x x x x
A Deputy, or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the
Ombudsman, and after due process. (2)
In order to determine whether it can pass a constitutional challenge in view of the facts arising from these
consolidated cases, we should start first with textual reference. That is, we should check all the relevant and
applicable provisions of the Constitution.
Article XI, Section 5 of the 1987 Constitution reads:
There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may
likewise be appointed. (Emphasis supplied)
In relation to this provision, the Ombudsman is among the officials enumerated in Article XI, Section 2 as those
who can be removed from office only through impeachment
The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Emphasis supplied)
The phrase “as provided by law” is the apparent basis for the enactment of Section 8, Paragraph (2) of Republic Act
No. 6770 or the Ombudsman Act. In my view, this provision can-
693not be taken in isolation. Any interpretation of this phrase should not deny the “independent” nature of the
Office of the Ombudsman as provided in Article XI, Section 5 of the Constitution. The Constitution should be read
as a whole document in a manner that will give effect to all its parts. 35
I agree with the positions of Justice Brion and Justice Abad in their dissenting opinions on the September 4,
2012 decision that the independence of the Office of the Ombudsman is of such a fundamental and unequivocal
nature. This independence is essential to carry out the functions and duties of the Office of the Ombudsman. I agree
with their position that since those in the executive branch are also subject to the disciplinary authority of the Office
of the Ombudsman, providing the Office of the President with the power to remove would be an impediment to the
fundamental independence of the Ombudsman.
We cannot allow a circumvention of the separation of powers by construing Article XI, Section 2 of the
Constitution as delegating plenary and unbounded power to Congress. The exclusive power of the Ombudsman to
discipline her own ranks is fundamental to the independence of her office.
The Constitution’s intention to make the independence of the Office of the Ombudsman greater than any other
office can also be inferred from the authority and the process of appointment of the officers constituting that office.
Hence, Article XI, Section 9 of the Constitution provides:
The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the
Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months after they occur. 36
The President is granted the power to appoint but only from a list of nominees vetted by the Judicial and Bar
Council. Furthermore, the President needs to exercise that power to appoint within three months from the vacancy of
either the Ombudsman or any of her Deputies.
Furthermore, the Constitution provides in Section 6 of the same Article:
The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the
Ombudsman, according to the Civil Service Law. 6. Section37
This is similar to the provisions for Constitutional Commissions. Article IX, Section 4 of the Constitution
provides:
The Constitutional Commissions shall appoint their officials and employees in accordance with law. 4. Section38
It is clear that there is a different treatment of the Deputies of the Ombudsman from all the other staff of the
The Ombudsman is assisted by the Deputy Ombudsman. There are several deputies for Luzon, Visayas,
Mindanao, and the military. All these deputies take their direction from the Ombudsman. By constitutional fiat, they
cannot take direction from any other constitutional officer. It is difficult to imagine how the independence of the
Ombudsman can be preserved when the President has concurring powers to remove her deputies.
Furthermore, it is not difficult to imagine that the President and Congress can negate the elaborate process of
appointing a Deputy Ombudsman simply by using their alleged power of removal. While this may not have been the
situation in this case, the possibility exists especially when we consider that the Ombudsman does have jurisdiction
also to investigate both the executive and legislative branches. The real fear of the deputies can hobble the Office of
the Ombudsman.
During the deliberations of this case, a question was raised as to whether the President can have the authority to
discipline non-impeachable officers and employees of Constitutional Commissions and the Office of the
Ombudsman when the law so provides. This court’s construction of constitutional provisions should be framed only
by the actual controversies presented by the facts of the case at bar. The issue in this case is only about the power of
the President to remove the Deputy Ombudsman and the Special Prosecutor for causes provided by law. It does not
involve the power of the President to remove any other civil servant appointed by the Ombudsman.
In its September 4, 2012 decision, this court cited Hon. Hagad v. Hon. Gozodadole39 and Office of the
Ombudsman v. Delijero, Jr.40 to show that the Office of the President has concurrent disciplinary jurisdiction with
the Office of the Ombudsman. These cases, however, are not applicable. Hon. Hagad involved prosecution and
discipline of the Mayor and Vice Mayor as well as a member of the Sangguniang Panlungsod of Mandaue City. The
Constitution puts local governments within the general supervision of the President. 41 They are, therefore, also within
the authority of the Office of the President to discipline.
In Office of the Ombudsman v. Delijero, Jr., there was a law, namely, Republic Act No. 4670, which provided a
separate set of procedural requirements for administrative proceedings involving public school teachers. Thus, this
court held that it would have been more prudent for the Office of the Ombudsman to refer the case to the
Department of Education. Public school teachers do not enjoy the constitutional independence similar to that of the
In his concurring opinion on the September 4, 2012 decision, Justice Carpio presents the view that the
independence of the Office of the Ombudsman does not mean that it is insulated from all governmental scrutiny.
According to Justice Carpio, Congress has the power to legislate the officials that may be subject to dismissal and
disciplinary action, if the Constitution allows. He cites the records of the Constitutional Commissions, particularly
that of Commissioner Regalado, who sought the amendment to include the sentence, “ALL OTHER PUBLIC
OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY
IMPEACHMENT,” under Article XI, Section 2. Thus, Congress has the plenary power to provide for the officials
that may be removed and the manner by which they are to be removed as well.
I agree with Justice Carpio that the Office of the Ombudsman is also constitutionally accountable. I cannot
agree, however, that this accountability can be extracted by allowing her deputies to be answerable to two principals:
the Ombudsman and the President, even if this dual accountability is provided by law.
Reliance on the debates of the framers of the 1987 Constitution is not the only source for determining the
meaning of
41 Consti., art. X, sec. 4.
697the text of the Constitution.42 Resorting to the debates and proceedings of the constitutional convention shows us
the views and standpoints of individual members of the convention. 43 It does not show how the sovereign people
read the Constitution at the time of ratification. The discussion of those that drafted the present Constitution is
advisory.44 The text of the Constitution should be read by one guided by, but not limited to, the debates that
happened when it was drafted and ratified. It should also be read in the light of the needs of present times while
being sensitive and addressing precedents existing in our jurisprudence.
The mention in the records of the Constitutional Commission of the phrase “as provided by law” cannot serve
as the sole yardstick by which a definitive interpretation of the constitutional provision or its effects is to be
determined. “As provided by law” with respect to the Deputy Ombudsman may, at best, only provide for the
standards under which the Ombudsman may exercise her power of removal. Unless the Constitution does not intend
true operational independence, the clause cannot be interpreted to mean that Congress has plenary authority to lodge
disciplinary power on any other organ other than the Ombudsman.
I also agree with the concurring opinion of Justice Carpio on the September 4, 2012 decision of this court that
there are different degrees of independence among the offices enumerated by the Constitution. Congress is
empowered to determine through subsequent legislation the standards and legis-
_______________
42 Refer to my dissenting opinion in Chavez v. Judicial and Bar Council, G.R. No. 202242, April 16, 2013, 696 SCRA 469 citing Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317 and C. CURTIS, LIONS UNDER THE THRONE 2 (1947).
43 Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317.
44 C. CURTIS, LIONS UNDER THE THRONE 2 (1947).
698lative parameters of the independence of certain constitutional offices.

The 1987 Constitution provides two distinct types of independence as defined in its provisions. The first type of
independence is constitutionally enshrined. This means that it can neither be subject to any interference by other
branches of government nor can Congress pass laws that abridge or impair its fundamental independence. This
independence is of such a degree and nature that the very essence of the constitutional body provides for a definitive
barrier against legislative or executive intervention. This is the type of independence enjoyed by the Constitutional
Commissions,45 the Office of the Ombudsman,46 and — to a certain extent — the Commission on Human Rights.47
The second type of independence refers to the Constitution itself allowing Congress to define the functions that
will ensure the independence of specific government offices or agencies. For instance, unlike the provisions with
respect to the Ombudsman, the Constitution provides that the National Economic Development Authority 48 and the
Central Bank49 will be created and further defined by law.
III
The treatment of the Office of the Special Prosecutor is, however, different. In my view, the Office of the
Special Prosecutor may by law be removed by the President. This is what Section 8, Paragraph (2) of the
Ombudsman Act provides.
This conclusion can be seen simply by examining the provisions of Article XI of the Constitution. There are two
constitutional organs created: the Office of the Ombudsman and the Tanodbayan, which is the current Office of the
Special Prosecutor:
There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed. 5. Section
_______________
Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.
49 Consti., art. XII, sec. 20: The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-
born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other
qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have
supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other
institutions performing similar functions.
Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.
700
The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the
Ombudsman, according to the Civil Service Law. 6. Section
7. SectionThe existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall
continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the
Office of the Ombudsman created under this Constitution. (Emphasis provided)

Section 5 of Article XI provides that the composition of the Office of the Ombudsman includes the Office of the
Ombudsman, the overall Deputy Ombudsman for Luzon, Visayas, and Mindanao as well as a separate Deputy for
the military establishment. Section 6 of Article XI states that the other officials and employees of the Office of the
Ombudsman, outside of the Deputies, shall be appointed by the Ombudsman in accordance with the Civil Service
Law. Section 7 of Article XI provides that what was then known as the Tanodbayan shall now be known as the
Office of the Special Prosecutor. It is allowed to exercise its powers as provided by law except those explicitly
provided for in the 1987 Constitution.
Section 7 even distinguishes between all the other officials and employees of the Ombudsman and that of the
Office of the Special Prosecutor.
The Office of the Ombudsman’s powers are more proactive than the prosecutorial powers of the Office of the
Special Prosecutor. This can be seen in the enumeration of her powers in the Constitution. Thus, in Article XI,
Section 13:

The Office of the Ombudsman shall have the following powers, functions, and duties: 13. Sec.
Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (1)
701
Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties. (2)
Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (3)
Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts and transactions entered into by this office involving the
disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate
action. (4)
Request any government agency for assistance and information necessary in the discharge of its responsibilities, and
to examine, if necessary, pertinent records and documents. (5)
Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (6)
Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make
recommendations for their elimination and the observance of high standards of ethics and efficiency. (7)
Promulgate its rules and procedure and exercise su (8)ch other powers or perform such functions or duties as may be
provided by law.
By clear constitutional design, the Tanodbayan or the Office of the Special Prosecutor is separate from the
Office of the Ombudsman. Section 7 is explicit on this point, in that the Office of the Special Prosecutor is allowed
to exercise its pow-
702ers, except for those conferred on the Office of the Ombudsman. While the Office of the Special Prosecutor is
not automatically a part of the Office of the Ombudsman, there is, however, no reason that Congress and the
President may, by law and in their political wisdom, attach the Office of the Special Prosecutor with the Office of
the Ombudsman. There is also no constitutional prohibition for the Office of the Special Prosecutor to be
functionally separate from the Office of the Ombudsman. This is a matter to be addressed by the political
departments. This may also be viewed as a check of both Congress and the President on the powers of the
Ombudsman.
By clear provision of the Constitution, it is only the Office of the Ombudsman, which includes her Deputies, that
is endowed with constitutional independence. The inclusion of the Office of the Special Prosecutor with the Office
of the Ombudsman in Section 3 of Republic Act No. 6770 does not ipso facto mean that the Office of the Special
Prosecutor must be afforded the same levels of constitutional independence as that of the Ombudsman and the
Deputy Ombudsman. The law simply defines how the Office of the Special Prosecutor is attached and, therefore,
coordinated with the Office of the Ombudsman.
Thus, the provision of Section 8, Paragraph (2) of Republic Act No. 6770 which provides for the power of the
President to remove the Special Prosecutor is valid and constitutional.
IV
This opinion should not be seen as a sweeping dismissal or acquittal of the liability of petitioner Gonzales due to
the unconstitutionality of Section 8, Paragraph (2) of the Ombudsman Act as far as the Office of the Deputy
Ombudsman is concerned. Petitioner Gonzales must still be held accountable for his actions. His actions as
described in the report and in the decision of the Office of the President are troubling.
703There is need to continue the investigation so that the public may finally find closure concerning these incidents.
Understandably, the Office of the President wanted to act with due and deliberate dispatch on this case based on
a provision of law which it interpreted to be valid and constitutional. It acted with the best of motives. But grand
intentions cannot replace constitutional design. Even “daang matuwid” requires that the right course of action must
be effectively and efficiently done in the right way.
I vote to declare that Section 8, Paragraph (2) of the Ombudsman Act, insofar as the Deputy Ombudsman is
subjected to the disciplinary power of the Office of the President, is unconstitutional. Petitioner Gonzales may,
however, still be subject to investigation and discipline by the Ombudsman herself. I also vote that, given the facts,
there was substantial evidence of betrayal of public trust on the part of petitioner Gonzales.
ACCORDINGLY, the motion for partial reconsideration should be denied.

Section 8(2) of R.A. No. 6770 declared unconstitutional.
Note.—The power of the Office of the Ombudsman to investigate extends to all kinds of malfeasance,
misfeasance, and non-feasance that have been committed during his tenure of office by any officer or employee of
the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations. (Office of the Ombudsman vs. De Leon, 692 SCRA 27 [2013])
——o0o——

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No. L-75697. June 18, 1987.

We shall consider the foregoing objections in seriatim.

63 SUPREME COURT REPORTS

ARTURO M. TOLENTINO, petitioner, vs. THE SECRETARY OF FINANCE and THE COMMISSIONER OF

JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE

NARVASA, C.J., Separate Opinion:

CRUZ, J., Separate Opinion:

PADILLA, J., Separate Opinion:

VITUG, J., Separate Opinion:

REGALADO, J., Dissenting Opinion:

DAVIDE, JR., J., Dissenting Opinion:

ROMERO, J., Dissenting Opinion:

Constitutional Law; Expanded VAT Law; Bicameral Conference Committee; A bicameral conference committee is a

PUNO, J., Dissenting Opinion:

The facts are stated in the opinion of the Court.

II. Substantive Issues:

1. 1.Art. VI, § 28(1)

Memorandum, Annexes 3-12).

Senate may propose or concur with amendments, as on other bills.”

as giving it more legislative powers than the House of Representatives.

Art. VII, § 21.

U.S. CONST., Art. II, § 2, cl. 2.

Rainey v. United States, 232 U.S. 309, 58 L. Ed. 117 (1914).

Memorandum of Petitioner Arturo M. Tolentino, Supplement C.

Zinn, Conference Procedure in Congress, 38 ABAJ 864-865 (1952).

(1986); LEES AND SHAW, COMMITTEES IN LEGISLATURES 163 (1979).

Rules of the Senate

Rules of the House of Representatives

Osmeña v. Pendatun, 109 Phil. 863, 871 (1960).

Subido, 27 SCRA 131 (1969).

Morales v. Subido, supra note 20.

Astorga v. Villegas, 56 SCRA 714 (1974).

See, e.g., Alalayan v. National Power Corp., 24 SCRA 172 (1968); Cordero v. Cabatuando, 6 SCRA

418 (1962); Sumulong v. COMELEC, 73 Phil. 288 (1941).

40 Phil. 224 (1919).

of all the Members of the Congress.”

The PPI does not dispute this point, either.

297 U.S. 233, 80 L.Ed. 660 (1936).

297 U.S. at 250, 80 L.Ed. at 669.

thus very clear.

460 U.S. at 591, 75 L.Ed.2d at 308-9 (1983).

481 U.S. 221, 95 L.Ed.2d 209 (1987).

460 U.S. at 581, 75 L.Ed.2d at 302.

493 U.S. 378, 107 L.Ed.2d 796 (1990).

319 U.S. 105, 113, 87 L.Ed. 1292 (1943).

Motel Operators Ass’n v. City Mayor, 21 SCRA 449, 459 (1967).

Cf. Lutz v. Araneta, 98 Phil. 148, 153 (1955).

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371.

Cf. Philippine American Life Ins. Co. v. Auditor General, 22 SCRA 135 (1968).

See E. M. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 560-561 (2d Ed., 1977).

Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission:

1 Cranch 137, 2 L.Ed. 60(1803) (emphasis added).

Supra note 49 (emphasis added).

SCRA 1, 7-8 (1961).

WHEREFORE, the petitions in these cases are DISMISSED.

“CONFERENCE COMMITTEE REPORT

stricken from the statute books.

presiding officers and secretaries.

G.R. No. 81311, 30 June 1988, 163 SCRA 371.

Likewise, in the first VAT case, I said:

Bautista v. Salonga, G.R. No. 86439, 13 April 1989, 172 SCRA 160.

Sec. 1, Art. VIII.

G.R. No. 103371, 11 November 1993.