TO: ATTY SUZETTE A.

MAMON

FROM: ZULEIN MAY GARDOSE

RE: Resultant effects of the decisions of the following: CONGRESSMAN HERMILANDO I.

MANDANAS, ET AL. VS. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ET
AL./HONORABLE ENRIQUE T. GARCIA, JR. VS. HONORABLEPAQUITO N. OCHOA, JR.,
ET AL.G.R. NO. 199802/G.R. NO. 208488. APRIL 10, 2019

==================================================================

ISSUES

I.

Whether or not Mandamus is the proper vehicle to assail the constitutionality of the relevant
provisions of the GAA and the LGC;

II.

Whether or not Section 284 of the LGC is unconstitutional for being repugnant to Section 6,
Article X of the 1987 Constitution;

III.

Whether or not the existing shares given to the LGUs by virtue of the GAA is consistent with the
constitutional mandate to give LGUs a 'just share" to national taxes following Article X, Section 6
of the 1987 Constitution;

IV.

Whether or not the petitioners are entitled to the reliefs prayed for.

ANSWER/DISCUSSION

I.

No, Mandamus is not the proper remedy. The remedy of mandamus is defined in Section 3,
Rule 65 of the Rules of Court. Herein, it is substantiated that Mandamus only lies to compel a
ministerial act. For the writ of mandamus to issue, the petitioner must show that the act sought
to be performed or compelled is ministerial on the part of the respondent. An act is ministerial
when it does not require the exercise of judgment and the act is performed pursuant to a legal
mandate. The burden of proof is on the mandamus petitioner to show that he is entitled to the
performance of a legal right, and that the respondent has a corresponding duty to perform the
act. The writ of mandamus should not be issued as a way to compel an official to do anything
that is not his duty to do, or that is his duty not to do, or to obtain for the petitioner anything to
which he is not entitled by law. 

The determination of what constitutes the just share of the Local Government Units (LGUs) in
the national taxes under the 1987 Constitution is an entirely discretionary power. Hence,
Congress cannot be compelled by writ of mandamus to act either way. The discretion of
Congress thereon, being exclusive, is not subject to external direction; otherwise, the delicate
balance underlying our system of government may be unduly disturbed which leads to violation
of the doctrine of Separation of Powers.

However, the allegations of the petition show that this is also a Petition for Certiorari. The
petition, while dubbed as a petition for mandamus, is also a petition for certiorari because it
alleges that Congress thereby committed grave abuse of discretion amounting to lack or excess
of jurisdiction. It is worth reminding that the actual nature of every action is determined by the
allegations in the body of the pleading or the complaint itself, not by the nomenclature used to
designate the same.  Moreover, neither should the prayer for relief be controlling; hence, the
courts may still grant the proper relief as the facts alleged in the pleadings and the evidence
introduced may warrant even without a prayer for specific remedy.

In this regard, the allegation that the non-release of some portions of the Internal Revenue
Allotment (IRA) balances is due to alleged congressional indiscretion—the diminution of the
base amount for computing the LGU’s just share, and of the unconstitutionality of the insertion
by Congress of the words internal revenue in the phrase national taxes justify treating this
petition as one for certiorari. It becomes the court’s duty, then, to assume jurisdiction over this
petition.

II.

Yes. The phrase “internal revenue” appearing in Section 284 of Republic Act No. 7160 (Local
Government Code) is unconstitutional.

Section 284 deviates from the plain language of Section 6 of Article X of the 1987 Constitution.
The phrase national internal revenue taxes engrafted in Section 284 is undoubtedly more
restrictive than the term national taxes written in Section 6. As such, Congress has actually
departed from the letter of the 1987 Constitution stating that national taxes should be the base
from which the just share of the LGU comes. Such departure is impermissible. erbal egis non
est recedendum (from the words of a statute there should be no departure).  Equally
impermissible is that Congress has also thereby curtailed the guarantee of fiscal autonomy in
favor of the LGUs under the 1987 Constitution.

According to Garcia v. Executive Secretary, customs duties is the nomenclature given to taxes
imposed on the importation and exportation of commodities and merchandise to or from a
foreign country. Customs duties, much like internal revenue taxes, are rarely designed to
achieve only one policy objective. Further, Section 102(oo) of R.A. No. 10863 (Customs
Modernization and Tariff Act) expressly includes all fees and charges imposed under the Act
under the blanket term of taxes. It is clear from the foregoing clarification that the exclusion of
other national taxes like customs duties from the base for determining the just share of the
LGUs contravened the express constitutional edict in Section 6, Article X the 1987 Constitution.

III.

No. The 1987 Constitution is forthright and unequivocal in ordering that the just share of the
LGUs in the national taxes shall be automatically released to them. With Congress having
established the just share through the LGC, it seems to be beyond debate that the inclusion of
the just share of the LGUs in the annual GAAs is unnecessary, if not superfluous. Hence, the
just share of the LGUs in the national taxes shall be released to them without need of yearly
appropriation.
The just shares of the Local Government Units in the national taxes should be automatically
released without need for further action through their respective provincial, city, municipal, or
barangay treasurers, as the case may be, on a quarterly basis but not beyond five (5) days from
the end of each quarter, as directed in Section 6, Article X of the 1987 Constitution and Section
286 of Republic Act No. 7160 (Local Government Code), and operationalized by Article 383 of
the Implementing Rules and Regulations of RA 7160.

IV.

No. The petitioners' prayer for the payment of the arrears of the LGUs' just share on the theory
that the computation of the base amount had been unconstitutional all along cannot be granted.
The effect of the declaration through this decision of the unconstitutionality of Section 284 of the
LGC and its related laws as far as they limited the source of the just share of the LGUs to the
NIRTs is prospective.

The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that
cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect. But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but
is resorted to only as a matter of equity and fair play.  It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary circumstances have met the
stringent conditions that will permit its application.

STATEMENT OF FACTS

The petitioners hereby challenge the manner in which the just share in the national taxes of the
local government units (LGUs) has been computed.

G.R. No. 199802 (Mandanas, et al.) is a special civil action for certiorari, prohibition and
mandamus assailing the manner the General Appropriations Act (GAA) for FY 2012 computed
the IRA for the LGUs.

Mandanas, et al. allege herein that certain collections of NIR Ts by the Bureau of Customs
(BOC) - specifically: excise taxes, value added taxes (VATs) and documentary stamp taxes
(DSTs) - have not been included in the base amounts for the computation of the IRA; that such
taxes, albeit collected by the BOC, should form part of the base from which the IRA should be
computed because they constituted NIRTs; that, consequently, the release of the additional
amount of ₱60,750,000,000.00 to the LGUs as their IRA for FY 2012 should be ordered; and
that for the same reason the LGUs should also be released their unpaid IRA for FY 1992 to FY
2011, inclusive, totaling ₱438,103,906,675.73.

In G.R. No. 208488, Congressman Enrique Garcia, Jr., the lone petitioner, seeks the writ of
mandamus to compel the respondents thereat to compute the just share of the LGUs on the
basis of all national taxes. His petition insists on a literal reading of Section 6, Article X of the
1987 Constitution. He avers that the insertion by Congress of the words internal revenue in the
phrase national taxes found in Section 284 of the LGC caused the diminution of the base for
determining the just share of the LGUs, and should be declared unconstitutional; that,
moreover, the exclusion of certain taxes and accounts pursuant to or in accordance with special
laws was similarly constitutionally untenable; that the VA Ts and excise taxes collected by the
BOC should be included in the computation of the IRA; and that the respondents should
compute the IRA on the basis of all national tax collections, and thereafter distribute any
shortfall to the LGUs.
 APPLICABLE LAWS/JURISPRUDENCE/CITATIONS

Republic Act No. 7160 SECTION 284

Section 3, Rule 65 of the Rules of Court 

Section 6, Article X of the 1987 Constitution

G.R. No. 209287

Section 21 of the National Internal Revenue Code (NIRC), as amended by R.A. No. 8424,

Doctrine of Operative Fact

 
TO: ATTY SUZETTE A. MAMON

FROM: ZULEIN MAY GARDOSE

RE: Resultant effects of the decisions of the following: G.R. No. 208566
November 19, 2013 GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR.
JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO,
Petitioners, vs. HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL
TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by
FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as
SPEAKER OF THE HOUSE, Respondents.

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.

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.

======================================================================

ISSUES

I.

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 bar the re-
litigation of the issue of constitutionality of the "Pork Barrel System" under the principles of res
judicata and stare decisis.

II.

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.

Whether or not the phrases (under Section 8 of PD 910, relating to the Malampaya Funds, and
116

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.

 ANSWER/DISCUSSION

I.

a. Yes, 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 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.

b. Yes, 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 concerned with
issues dependent upon the wisdom, not legality, of a particular measure. Court cannot intrude
on these questions. However, 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.

c. Yes, 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." 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."

d. No, they do not. 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. On the other hand, the focal point of stare
decisis is the doctrine created. The principle, entrenched under Article 8152 of the Civil Code,
evokes the general rule that, for the sake of certainty, a conclusion reached in one case should
be doctrinally applied to those that follow if the facts are substantially the same, even though the
parties may be different. 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. 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, these
principles would not apply.

II.

a. Yes. the PDAF violates the principle of separation of powers. Legislators have been
accorded post-enactment authority in the areas of fund release and realignment.  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.
b. Yes. PDAF violates the principle of non-delegability as it confers post-enactment
identification authority to individual legislators 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." 
 c. Yes. PDAF violates the principle of checks and balances. 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.T his 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.
d. Court partly agrees with the petitioner. 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.
e. No. 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.
f. Yes. 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."

III.

Yes. Sec 8 of PD 910- the phrase “and for such other purposes as may be hereafter directed by
the President” 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. It 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.”

STATEMENT OF FACTS

The NBI Investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared
that JLN Corporation (Janet Lim Napoles) had swindled billions of pesos from the public coffers
for "ghost projects" using dummy NGOs. Thus, 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.

Whistle-blowers alleged that" at 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 dummy NGO. Several petitions were lodged before the Court similarly seeking that
the "Pork Barrel System" be declared unconstitutional
 APPLICABLE LAWS/JURISPRUDENCE/CITATIONS

G.R. Nos. 113105, 113174, 113766, and 113888

Section 3, Rule 65 of the Rules of Court

Section 6, Article X of the 1987 Constitution

Section 102(oo) of R.A. No. 10863

Section 27(2), Article VI of the 1987 Constitution

Section 1, Article VI of the 1987 Constitution

Garcia v. Executive Secretary

Abakada Guro Party List v. Purisima

Section 29(1), Article VI of the 1987 Constitution