G.R. No.

180643 September 4, 2008

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.

RESOLUTION

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 acrimoniously, 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 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.

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 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 contempt 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:

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:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH

EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.

B. 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.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A

COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE

INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS’
PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO

INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF
EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURT’S DECISION,

RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN
ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN

THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS

LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN

ACCORDANCE WITH THEIR INTERNAL RULES.

D. 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.

E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT

ARBITRARY OR PRECIPITATE.

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 against disclosure as earlier held
in Almonte v. Vasquez9 and 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.

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,16" that there is a
"governmental privilege against public disclosure with respect to state secrets regarding
military, 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 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. Ermita 20 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
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 in Senate 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 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.

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

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 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.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine
of operational proximity" for the reason that "it maybe misconstrued to expand the scope of
the presidential communications privilege to communications between those who are
‘operationally proximate’ to the President but who may have "no direct communications with
her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. 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 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 President’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 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:

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 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 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)

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. 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)

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, the Court
finds nothing in these arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information
and the constitutional policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic government. 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 highlighted 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 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." 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 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.

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 guild 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 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.

xxx xxx xxx

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)

xxx xxx xxx

...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 will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on 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. Nixon41 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, 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 Arnault involves 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 Nixon
cases 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.

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?

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.

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 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.44 And if this is the primary
objective of respondent Committees in asking the three (3) questions covered by privilege, it
may even contradict their claim that their purpose is legislative in nature and not oversight. In
any event, whether or not investigating graft and corruption is a legislative or oversight
function of Congress, respondent Committees’ investigation cannot transgress bounds set by
the Constitution.

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 the applicability of the principle in
appropriate cases.46 (Emphasis supplied)

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 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.

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:

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 legislate 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 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.

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.

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 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 violations 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 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.
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:

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 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:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. 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)

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 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.

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
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 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 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. 71977 February 27, 1987

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S.

MERCADO, M.P., HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P.,
DOUGLAS R. CAGAS, M.P., OSCAR F. SANTOS, M.P., ALBERTO G. ROMULO,
M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L.
LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P.,
VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA. M.P., petitioners,
vs.
HON. MANUEL ALBA in his capacity as the MINISTER OF THE BUDGET and
VICTOR MACALINGCAG in his capacity as the TREASURER OF THE
PHILIPPINES, respondents.

FERNAN, J.:

Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the
constitutionality of the first paragraph of Section 44 of Presidential Decree No. 1177,
otherwise known as the "Budget Reform Decree of 1977."

Petitioners, who filed the instant petition as concerned citizens of this country, as members of
the National Assembly/Batasan Pambansa representing their millions of constituents, as
parties with general interest common to all the people of the Philippines, and as taxpayers
whose vital interests may be affected by the outcome of the reliefs prayed for" 1 listed the
grounds relied upon in this petition as follows:

A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977'

INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING
THE ILLEGAL TRANSFER OF PUBLIC MONEYS.

B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT

TO THE CONSTITUTION AS IT FAILS TO SPECIFY THE OBJECTIVES
AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF FUNDS
ARE TO BE MADE.

C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE

PRESIDENT TO OVERRIDE THE SAFEGUARDS, FORM AND
 PROCEDURE PRESCRIBED BY THE CONSTITUTION IN APPROVING
APPROPRIATIONS.

D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE

DELEGATION OF LEGISLATIVE POWERS TO THE EXECUTIVE.

E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY

THE PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE
BUDGET MINISTER AND THE TREASURER OF THE PHILIPPINES
ARE WITHOUT OR IN EXCESS OF THEIR AUTHORITY AND
JURISDICTION. 2

Commenting on the petition in compliance with the Court resolution dated September 19,
1985, the Solicitor General, for the public respondents, questioned the legal standing of
petitioners, who were allegedly merely begging an advisory opinion from the Court, there
being no justiciable controversy fit for resolution or determination. He further contended that
the provision under consideration was enacted pursuant to Section 16[5], Article VIII of the
1973 Constitution; and that at any rate, prohibition will not lie from one branch of the
government to a coordinate branch to enjoin the performance of duties within the latter's
sphere of responsibility.

On February 27, 1986, the Court required the petitioners to file a Reply to the Comment.
This, they did, stating, among others, that as a result of the change in the administration, there
is a need to hold the resolution of the present case in abeyance "until developments arise to
enable the parties to concretize their respective stands." 3

Thereafter, We required public respondents to file a rejoinder. The Solicitor General filed a
rejoinder with a motion to dismiss, setting forth as grounds therefor the abrogation of Section
16[5], Article VIII of the 1973 Constitution by the Freedom Constitution of March 25, 1986,
which has allegedly rendered the instant petition moot and academic. He likewise cited the
"seven pillars" enunciated by Justice Brandeis in Ashwander v. TVA, 297 U.S. 288 (1936) 4 as
basis for the petition's dismissal.

In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador,
G.R. Nos. 68379-81, September 22, 1986, We stated that:

The abolition of the Batasang Pambansa and the disappearance of the office in
dispute between the petitioner and the private respondents — both of whom
have gone their separate ways — could be a convenient justification for
dismissing the case. But there are larger issues involved that must be resolved
now, once and for all, not only to dispel the legal ambiguities here raised. The
more important purpose is to manifest in the clearest possible terms that this
Court will not disregard and in effect condone wrong on the simplistic and
tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also
the conscience of the government. The citizen comes to us in quest of law but
we must also give him justice. The two are not always the same. There are
times when we cannot grant the latter because the issue has been settled and
decision is no longer possible according to the law. But there are also times
 when although the dispute has disappeared, as in this case, it nevertheless cries
out to be resolved. Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the guidance of and
as a restraint upon the future.

It is in the discharge of our role in society, as above-quoted, as well as to avoid great

disservice to national interest that We take cognizance of this petition and thus deny public
respondents' motion to dismiss. Likewise noteworthy is the fact that the new Constitution,
ratified by the Filipino people in the plebiscite held on February 2, 1987, carries verbatim
section 16[5], Article VIII of the 1973 Constitution under Section 24[5], Article VI. And
while Congress has not officially reconvened, We see no cogent reason for further delaying
the resolution of the case at bar.

The exception taken to petitioners' legal standing deserves scant consideration. The case
of Pascual v. Secretary of Public Works, et al., 110 Phil. 331, is authority in support of
petitioners' locus standi. Thus:

Again, it is well-settled that the validity of a statute may be contested only by

one who will sustain a direct injury in consequence of its enforcement. Yet,
there are many decisions nullifying at the instance of taxpayers, laws
providing for the disbursement of public funds, upon the theory that the
expenditure of public funds by an officer of the state for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds which may be enjoined at the request of a taxpayer. Although there are
some decisions to the contrary, the prevailing view in the United States is
stated in the American Jurisprudence as follows:

In the determination of the degree of interest essential to give

the requisite standing to attack the constitutionality of a statute,
the general rule is that not only persons individually affected,
but also taxpayers 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. [ 11 Am. Jur. 761,
Emphasis supplied. ]

Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We
said that as regards taxpayers' suits, this Court enjoys that open discretion to entertain the
same or not.

The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section
16[5], Article VIII of the 1973 Constitution is readily perceivable from a mere cursory
reading thereof. Said paragraph 1 of Section 44 provides:

The President shall have the authority to transfer any fund, appropriated for
the different departments, bureaus, offices and agencies of the Executive
Department, which are included in the General Appropriations Act, to any
program, project or activity of any department, bureau, or office included in
the General Appropriations Act or approved after its enactment.
On the other hand, the constitutional provision under consideration reads as follows:

Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations,

however, the President, the Prime Minister, the Speaker, the Chief Justice of
the Supreme Court, and the heads of constitutional commis ions 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.

The prohibition to transfer an appropriation for one item to another was explicit and
categorical under the 1973 Constitution. However, 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 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.

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over extends the privilege granted under
said Section 16[5]. 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 department, 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.

"For the love of money is the root of all evil: ..." and money belonging to no one in particular,
i.e. public funds, provide an even greater temptation for misappropriation and embezzlement.
This, evidently, was foremost in the minds of the framers of the constitution in meticulously
prescribing the rules regarding the appropriation and disposition of public funds as embodied
in Sections 16 and 18 of Article VIII of the 1973 Constitution. Hence, the conditions on the
release of money from the treasury [Sec. 18(1)]; the restrictions on the use of public funds for
public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an item to another
[See. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all
safeguards designed to forestall abuses in the expenditure of public funds. Paragraph 1 of
Section 44 puts all these safeguards to naught. For, as correctly observed by petitioners, in
view of the unlimited authority bestowed upon the President, "... Pres. Decree No. 1177
opens the floodgates for the enactment of unfunded appropriations, results in uncontrolled
executive expenditures, diffuses accountability for budgetary performance and entrenches the
pork barrel system as the ruling party may well expand [sic] public money not on the basis of
development priorities but on political and personal expediency." 5 The contention of public
respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted pursuant to Section
16(5) of Article VIII of the 1973 Constitution must perforce fall flat on its face.
Another theory advanced by public respondents is that prohibition will not lie from one
branch of the government against a coordinate branch to enjoin the performance of duties
within the latter's sphere of responsibility.

Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. 1, Eight
Edition, Little, Brown and Company, Boston, explained:

... The legislative and judicial are coordinate departments of the government,
of equal dignity; each is alike supreme in the exercise of its proper functions,
and cannot directly or indirectly, while acting within the limits of its authority,
be subjected to the control or supervision of the other, without an
unwarrantable assumption by that other of power which, by the Constitution,
is not conferred upon it. The Constitution apportions the powers of
government, but it does not make any one of the three departments
subordinate to another, when exercising the trust committed to it. The courts
may declare legislative enactments unconstitutional and void in some cases,
but not because the judicial power is superior in degree or dignity to the
legislative. Being required to declare what the law is in the cases which come
before them, they must enforce the Constitution, as the paramount law,
whenever a legislative enactment comes in conflict with it. But the courts sit,
not to review or revise the legislative action, but to enforce the legislative will,
and it is only where they find that the legislature has failed to keep within its
constitutional limits, that they are at liberty to disregard its action; and in
doing so, they only do what every private citizen may do in respect to the
mandates of the courts when the judges assumed to act and to render
judgments or decrees without jurisdiction. "In exercising this high authority,
the judges claim no judicial supremacy; they are only the administrators of the
public will. If an act of the legislature is held void, it is not because the judges
have any control over the legislative power, but because the act is forbidden
by the Constitution, and because the will of the people, which is therein
declared, is paramount to that of their representatives expressed in any law."
[Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5;
Russ v. Com., 210 Pa. St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409, 105 Am. St.
Rep. 825] (pp. 332-334).

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. *

Public respondents are being enjoined from acting under a provision of law which We have
earlier mentioned to be constitutionally infirm. The general principle relied upon cannot
therefore accord them the protection sought as they are not acting within their "sphere of
responsibility" but without it.
The nation has not recovered from the shock, and worst, the economic destitution brought
about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision
which allows even the slightest possibility of a repetition of this sad experience cannot
remain written in our statute books.

WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential

Decree No. 1177 is hereby declared null and void for being unconstitutional.

SO ORDER RED.

G.R. No. 209287 July 1, 2014

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG

MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA
WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY
AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG
KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON,
ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT
NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.

DECISION

BERSAMIN, J.:

For resolution are the consolidated petitions assailing the constitutionality of the
Disbursement Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and
related issuances of the Department of Budget and Management (DBM) implementing the
DAP.

At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a
provision of the fundamental law that firmly ordains that "[n]o money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." The tenor and context of the
challenges posed by the petitioners against the DAP indicate that the DAP contravened this
provision by allowing the Executive to allocate public money pooled from programmed and
unprogrammed funds of its various agencies in the guise of the President exercising his
constitutional authority under Section 25(5) of the 1987 Constitution to transfer funds out of
savings to augment the appropriations of offices within the Executive Branch of the
Government. But the challenges are further complicated by the interjection of allegations of
transfer of funds to agencies or offices outside of the Executive.

Antecedents

What has precipitated the controversy?

On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the
Senate of the Philippines to reveal that some Senators, including himself, had been allotted an
additional ₱50 Million each as "incentive" for voting in favor of the impeachment of Chief
Justice Renato C. Corona.

Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a
public statement entitled Abad: Releases to Senators Part of Spending Acceleration
Program,1 explaining that the funds released to the Senators had been part of the DAP, a
program designed by the DBM to ramp up spending to accelerate economic expansion. He
clarified that the funds had been released to the Senators based on their letters of request for
funding; and that it was not the first time that releases from the DAP had been made because
the DAP had already been instituted in 2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross domestic product (GDP) to slow down. He
explained that the funds under the DAP were usually taken from (1) unreleased
appropriations under Personnel Services;2 (2) unprogrammed funds; (3) carry-over
appropriations unreleased from the previous year; and (4) budgets for slow-moving items or
projects that had been realigned to support faster-disbursing projects.

The DBM soon came out to claim in its website3 that the DAP releases had been sourced
from savings generated by the Government, and from unprogrammed funds; and that the
savings had been derived from (1) the pooling of unreleased appropriations, like unreleased
Personnel Services4 appropriations that would lapse at the end of the year, unreleased
appropriations of slow-moving projects and discontinued projects per zero based budgeting
findings;5 and (2) the withdrawal of unobligated allotments also for slow-moving programs
and projects that had been earlier released to the agencies of the National Government.

The DBM listed the following as the legal bases for the DAP’s use of savings,6 namely: (1)
Section 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Section 49
(Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code
of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013,
particularly their provisions on the (a) use of savings; (b) meanings of savings and
augmentation; and (c) priority in the use of savings.

As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the
special provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.

The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP
to the consciousness of the Nation for the first time, and made this present controversy
inevitable. That the issues against the DAP came at a time when the Nation was still seething
in anger over Congressional pork barrel – "an appropriation of government spending meant
for localized projects and secured solely or primarily to bring money to a representative’s
district"7 – excited the Nation as heatedly as the pork barrel controversy.

Nine petitions assailing the constitutionality of the DAP and the issuances relating to the
DAP were filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October
7, 2013; G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),8 on
October 16, 2013; G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260
(IBP), on October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No.
209442 (Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on November6,
2013; and G.R. No. 209569 (VACC), on November 8, 2013.

In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541
(Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued to implement
the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of
government agencies and offices with low levels of obligations, both for continuing and
current allotments.

In due time, the respondents filed their Consolidated Comment through the Office of the
Solicitor General (OSG).

The Court directed the holding of oral arguments on the significant issues raised and joined.

Issues

Under the Advisory issued on November 14, 2013, the presentations of the parties during the
oral arguments were limited to the following, to wit:

Procedural Issue:

A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the
constitutionality and validity of the Disbursement Acceleration Program (DAP), National
Budget Circular (NBC) No. 541, and all other executive issuances allegedly implementing
the DAP. Subsumed in this issue are whether there is a controversy ripe for judicial
determination, and the standing of petitioners.

Substantive Issues:

B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which
provides: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law."

C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:

(a)They treat the unreleased appropriations and unobligated allotments

withdrawn from government agencies as "savings" as the term is used in Sec.
25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013;
 (b)They authorize the disbursement of funds for projects or programs not
provided in the GAAs for the Executive Department; and

(c)They "augment" discretionary lump sum appropriations in the GAAs.

D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of
checks and balances, and (3) the principle of public accountability enshrined in the 1987
Constitution considering that it authorizes the release of funds upon the request of legislators.

E. Whether or not factual and legal justification exists to issue a temporary restraining order
to restrain the implementation of the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP.

In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to
support its argument regarding the President’s power to spend. During the oral arguments, the
propriety of releasing unprogrammed funds to support projects under the DAP was
considerably discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442
(Belgica) dwelled on unprogrammed funds in their respective memoranda. Hence, an
additional issue for the oral arguments is stated as follows:

F. Whether or not the release of unprogrammed funds under the DAP was in accord with the
GAAs.

During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to
submit a list of savings brought under the DAP that had been sourced from (a) completed
programs; (b) discontinued or abandoned programs; (c) unpaid appropriations for
compensation; (d) a certified copy of the President’s directive dated June 27, 2012 referred to
in NBC No. 541; and (e) all circulars or orders issued in relation to the DAP.9

In compliance, the OSG submitted several documents, as follows:

(1) A certified copy of the Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized Balances and their
Realignment);10

(2) Circulars and orders, which the respondents identified as related to the DAP,
namely:

a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds
for FY 2011);

b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of
Funds for FY 2012);

c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012);

d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds
for FY 2013);
 e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary
Treatment of Commitments/Obligations of the National Government);

f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised
Guidelines on the Submission of Quarterly Accountability Reports on
Appropriations, Allotments, Obligations and Disbursements);

g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund
Release System in the Government).

(3) A breakdown of the sources of savings, including savings from discontinued

projects and unpaid appropriations for compensation from 2011 to 2013

On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014
directing the respondents to submit the documents not yet submitted in compliance with the
directives of the Court or its Members, submitted several evidence packets to aid the Court in
understanding the factual bases of the DAP, to wit:

(1) First Evidence Packet11 – containing seven memoranda issued by the DBM
through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified
projects approved and duly signed by the President, as follows:

a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed
Disbursement Acceleration Program (Projects and Sources of Funds);

b. Memorandum for the President dated December 12, 2011 (Omnibus

Authority to Consolidate Savings/Unutilized Balances and its Realignment);

c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);

d. Memorandum for the President dated September 4, 2012 (Release of funds

for other priority projects and expenditures of the Government);

e. Memorandum for the President dated December 19, 2012 (Proposed Priority
Projects and Expenditures of the Government);

f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment to Fund the
Quarterly Disbursement Acceleration Program); and

g. Memorandum for the President dated September 25, 2013 (Funding for the
Task Force Pablo Rehabilitation Plan).

(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their
corresponding Special Allotment Release Orders (SAROs) and appropriation covers;

(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under
the DAP;
 (4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual
Financial Report (AFR) of the Commission on Audit for 2011 and 2012;

(5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and

Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending
the withdrawal of funds from his agency, inclusive of annexes; and

(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation
for the January 28, 2014 oral arguments.

On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the
sources of funds brought under the DAP, the uses of such funds per project or activity
pursuant to DAP, and the legal bases thereof.

On February 14, 2014, the OSG submitted another set of documents in further compliance
with the Resolution dated January 28, 2014, viz:

(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the
revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the original revenue targets,
which certifications were required for the release of the unprogrammed funds as provided in
Special Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and
2013 GAAs; and (2) A report on releases of savings of the Executive Department for the use
of the Constitutional Commissions and other branches of the Government, as well as the fund
releases to the Senate and the Commission on Elections (COMELEC).

RULING

I.

Procedural Issue:

a) The petitions under Rule 65 are proper remedies

All the petitions are filed under Rule 65 of the Rules of Court, and include applications for
the issuance of writs of preliminary prohibitory injunction or temporary restraining orders.
More specifically, the nature of the petitions is individually set forth hereunder, to wit:

G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus

G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
 G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition

The respondents submit that there is no actual controversy that is ripe for adjudication in the
absence of adverse claims between the parties;19 that the petitioners lacked legal standing to
sue because no allegations were made to the effect that they had suffered any injury as a
result of the adoption of the DAP and issuance of NBC No. 541; that their being taxpayers
did not immediately confer upon the petitioners the legal standing to sue considering that the
adoption and implementation of the DAP and the issuance of NBC No. 541 were not in the
exercise of the taxing or spending power of Congress;20 and that even if the petitioners had
suffered injury, there were plain, speedy and adequate remedies in the ordinary course of law
available to them, like assailing the regularity of the DAP and related issuances before the
Commission on Audit (COA) or in the trial courts.21

The respondents aver that the special civil actions of certiorari and prohibition are not proper
actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and
the other executive issuances implementing the DAP.22

In their memorandum, the respondents further contend that there is no authorized proceeding
under the Constitution and the Rules of Court for questioning the validity of any law unless
there is an actual case or controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely appellate; that for a court
of law to pass upon the constitutionality of a law or any act of the Government when there is
no case or controversy is for that court to set itself up as a reviewer of the acts of Congress
and of the President in violation of the principle of separation of powers; and that, in the
absence of a pending case or controversy involving the DAP and NBC No. 541, any decision
herein could amount to a mere advisory opinion that no court can validly render.23

The respondents argue that it is the application of the DAP to actual situations that the
petitioners can question either in the trial courts or in the COA; that if the petitioners are
dissatisfied with the ruling either of the trial courts or of the COA, they can appeal the
decision of the trial courts by petition for review on certiorari, or assail the decision or final
order of the COA by special civil action for certiorari under Rule 64 of the Rules of Court.24

The respondents’ arguments and submissions on the procedural issue are bereft of merit.

Section 1, Article VIII of the 1987 Constitution expressly 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.

Thus, the Constitution vests judicial power in the Court and in such lower courts as may be
established by law. In creating a lower court, Congress concomitantly determines the
jurisdiction of that court, and that court, upon its creation, becomes by operation of the
Constitution one of the repositories of judicial power.25 However, only the Court is a
constitutionally created court, the rest being created by Congress in its exercise of the
legislative power.

The Constitution states that judicial power includes the duty of the courts of justice not only
"to settle actual controversies involving rights which are legally demandable and enforceable"
but also "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." It has thereby expanded the concept of judicial power, which up to then was
confined to its traditional ambit of settling actual controversies involving rights that were
legally demandable and enforceable.

The background and rationale of the expansion of judicial power under the 1987 Constitution
were laid out during the deliberations of the 1986 Constitutional Commission by
Commissioner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his
sponsorship of the proposed provisions on the Judiciary, where he said:–

The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which
are guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We
can tell your wife what her duties as such are and that she is bound to comply with them, but
we cannot force her physically to discharge her main marital duty to her husband. There are
some rights guaranteed by law, but they are so personal that to enforce them by actual
compulsion would be highly derogatory to human dignity." This is why the first part of the
second paragraph of Section 1 provides that: Judicial power includes the duty of courts to
settle actual controversies involving rights which are legally demandable or enforceable…

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

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

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question. (Bold emphasis supplied)26

Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope

of judicial power in the following manner:–

MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of
justice to settle actual controversies…" The term "actual controversies" according to the
Commissioner should refer to questions which are political in nature and, therefore, the
courts should not refuse to decide those political questions. But do I understand it right that
this is restrictive or only an example? I know there are cases which are not actual yet the
court can assume jurisdiction. An example is the petition for declaratory relief.

May I ask the Commissioner’s opinion about that?

MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.

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

MR. CONCEPCION. Yes.

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

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

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

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is
a question as to whether the government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not a political question.
Therefore, the court has the duty to decide.27

Our previous Constitutions equally recognized the extent of the power of judicial review and
the great responsibility of the Judiciary in maintaining the allocation of powers among the
three great branches of Government. Speaking for the Court in Angara v. Electoral
Commission,28 Justice Jose P. Laurel intoned:

x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon to determine
the proper allocation of powers between the several department and among the integral or
constituent units thereof.

xxxx

The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other department; it does
not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. x x x29

What are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be
determined under the Constitution?

The present Rules of Court uses two special civil actions for determining and correcting
grave abuse of discretion amounting to lack or excess of jurisdiction. These are the special
civil actions for certiorari and prohibition, and both are governed by Rule 65. A similar
remedy of certiorari exists under Rule 64, but the remedy is expressly applicable only to the
judgments and final orders or resolutions of the Commission on Elections and the
Commission on Audit.

The ordinary nature and function of the writ of certiorari in our present system are aptly
explained in Delos Santos v. Metropolitan Bank and Trust Company:30

In the common law, from which the remedy of certiorari evolved, the writ of certiorari was
issued out of Chancery, or the King’s Bench, commanding agents or officers of the inferior
courts to return the record of a cause pending before them, so as to give the party more sure
and speedy justice, for the writ would enable the superior court to determine from an
inspection of the record whether the inferior court’s judgment was rendered without
authority. The errors were of such a nature that, if allowed to stand, they would result in a
substantial injury to the petitioner to whom no other remedy was available. If the inferior
court acted without authority, the record was then revised and corrected in matters of law.
The writ of certiorari was limited to cases in which the inferior court was said to be
exceeding its jurisdiction or was not proceeding according to essential requirements of law
and would lie only to review judicial or quasi-judicial acts.

The concept of the remedy of certiorari in our judicial system remains much the same as it
has been in the common law. In this jurisdiction, however, the exercise of the power to issue
the writ of certiorari is largely regulated by laying down the instances or situations in the
Rules of Court in which a superior court may issue the writ of certiorari to an inferior court or
officer. Section 1, Rule 65 of the Rules of Court compellingly provides the requirements for
that purpose, viz:

xxxx

The sole office of the writ of certiorari is the correction of errors of jurisdiction, which
includes the commission of grave abuse of discretion amounting to lack of jurisdiction. In
this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The
abuse of discretion must be grave, which means either that the judicial or quasi-judicial
power was exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually
refused to perform the duty enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction.31

Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari
is to be distinguished from prohibition by the fact that it is a corrective remedy used for the
re-examination of some action of an inferior tribunal, and is directed to the cause or
proceeding in the lower court and not to the court itself, while prohibition is a preventative
remedy issuing to restrain future action, and is directed to the court itself.32 The Court
expounded on the nature and function of the writ of prohibition in Holy Spirit Homeowners
Association, Inc. v. Defensor:33

A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise
of a quasi-legislative function. Prohibition is an extraordinary writ directed against any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, ordering said entity or person to desist from further proceedings when
said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law. Prohibition lies against judicial or
ministerial functions, but not against legislative or quasi-legislative functions. Generally, the
purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in
order to maintain the administration of justice in orderly channels. Prohibition is the proper
remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or
when, in the exercise of jurisdiction in handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by the law, or where there is no
adequate remedy available in the ordinary course of law by which such relief can be obtained.
Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary
action for its nullification, an action which properly falls under the jurisdiction of the
Regional Trial Court. In any case, petitioners’ allegation that "respondents are performing or
threatening to perform functions without or in excess of their jurisdiction" may appropriately
be enjoined by the trial court through a writ of injunction or a temporary restraining order.

With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and
restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by
any branch or instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions. This application is expressly authorized by the text of
the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials.34

Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, the Court is not at all precluded from making the inquiry
provided the challenge was properly brought by interested or affected parties. The Court has
been thereby entrusted expressly or by necessary implication with both the duty and the
obligation of determining, in appropriate cases, the validity of any assailed legislative or
executive action. This entrustment is consistent with the republican system of checks and
balances.35

Following our recent dispositions concerning the congressional pork barrel, the Court has
become more alert to discharge its constitutional duty. We will not now refrain from
exercising our expanded judicial power in order to review and determine, with authority, the
limitations on the Chief Executive’s spending power.

b) Requisites for the exercise of the

power of judicial review were
complied with

The requisites for the exercise of the power of judicial review are the following, namely: (1)
there must bean actual case or justiciable controversy before the Court; (2) the question
before the Court must be ripe for adjudication; (3) the person challenging the act must be a
proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity
and must be the very litis mota of the case.36

The first requisite demands that there be an actual case calling for the exercise of judicial
power by the Court.37 An actual case or controversy, in the words of Belgica v. Executive
Secretary Ochoa:38

x x x 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."

An actual and justiciable controversy exists in these consolidated cases. The incompatibility
of the perspectives of the parties on the constitutionality of the DAP and its relevant
issuances satisfy the requirement for a conflict between legal rights. The issues being raised
herein meet the requisite ripeness considering that the challenged executive acts were already
being implemented by the DBM, and there are averments by the petitioners that such
implementation was repugnant to the letter and spirit of the Constitution. Moreover, the
implementation of the DAP entailed the allocation and expenditure of huge sums of public
funds. The fact that public funds have been allocated, disbursed or utilized by reason or on
account of such challenged executive acts gave rise, therefore, to an actual controversy that is
ripe for adjudication by the Court.

It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP
as a program had been meanwhile discontinued because it had fully served its purpose,
saying: "In conclusion, Your Honors, may I inform the Court that because the DAP has
already fully served its purpose, the Administration’s economic managers have recommended
its termination to the President. x x x."39

The Solicitor General then quickly confirmed the termination of the DAP as a program, and
urged that its termination had already mooted the challenges to the DAP’s constitutionality,
viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge
its constitutionality. Any constitutional challenge should no longer be at the level of the
program, which is now extinct, but at the level of its prior applications or the specific
disbursements under the now defunct policy. We challenge the petitioners to pick and choose
which among the 116 DAP projects they wish to nullify, the full details we will have
provided by February 5. We urge this Court to be cautious in limiting the constitutional
authority of the President and the Legislature to respond to the dynamic needs of the country
and the evolving demands of governance, lest we end up straight jacketing our elected
representatives in ways not consistent with our constitutional structure and democratic
principles.40

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.41

The Court cannot agree that the termination of the DAP as a program was a supervening
event that effectively mooted these consolidated cases. Verily, the Court had in the past
exercised its power of judicial review despite the cases being rendered moot and academic by
supervening events, like: (1) when there was a grave violation of the Constitution; (2) when
the case involved a situation of exceptional character and was of paramount public interest;
(3) when the constitutional issue raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) when the case was capable of repetition yet
evading review.42

Assuming that the petitioners’ several submissions against the DAP were ultimately sustained
by the Court here, these cases would definitely come under all the exceptions. Hence, the
Court should not abstain from exercising its power of judicial review.

Did the petitioners have the legal standing to sue?

Legal standing, as a requisite for the exercise of judicial review, refers to "a right of
appearance in a court of justice on a given question."43 The concept of legal standing, or
locus standi, was particularly discussed in De Castro v. Judicial and Bar Council,44 where the
Court said:

In public or constitutional litigations, the Court is often burdened with the determination of
the locus standi of the petitioners due to the ever-present need to regulate the invocation of
the intervention of the Court to correct any official action or policy in order to avoid
obstructing the efficient functioning of public officials and offices involved in public service.
It is required, therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:

The question on legal standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions." Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to show, not
only that the law or any government act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person complaining has been
or is about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or act complained
of.

It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held
that the person who would assail the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and
Pascual v. Secretary of Public Works.

Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in
1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had
"transcendental importance." Some notable controversies whose petitioners did not pass the
direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.

In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the
issues raised by the petition due to their "far reaching implications," even if the petitioner had
no personality to file the suit. The liberal approach of Aquino v. Commission on Elections
has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.

However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that he sufficiently demonstrates in
his petition that he is entitled to protection or relief from the Court in the vindication of a
public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. In
David v. Macapagal-Arroyo, the Court aptly explains why:

Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In
the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins: "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot
be denied."45

The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc.46 that "[s]tanding is a peculiar concept in constitutional law because in some cases, suits
are not brought by parties who have been personally injured by the operation of a law or any
other government act but by concerned citizens, taxpayers or voters who actually sue in the
public interest."

Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their
capacities as taxpayers who, by averring that the issuance and implementation of the DAP
and its relevant issuances involved the illegal disbursements of public funds, have an interest
in preventing the further dissipation of public funds. The petitioners in G.R. No. 209287
(Araullo) and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political branches of the
Government.47

On its part, PHILCONSA simply reminds that the Court has long recognized its legal
standing to bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136,
cites his additional capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands
by "its avowed duty to work for the rule of law and of paramount importance of the question
in this action, not to mention its civic duty as the official association of all lawyers in this
country."49

Under their respective circumstances, each of the petitioners has established sufficient
interest in the outcome of the controversy as to confer locus standi on each of them.

In addition, considering that the issues center on the extent of the power of the Chief
Executive to disburse and allocate public funds, whether appropriated by Congress or not,
these cases pose issues that are of transcendental importance to the entire Nation, the
petitioners included. As such, the determination of such important issues call for the Court’s
exercise of its broad and wise discretion "to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised."50

DECISION

PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the
subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings
before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its

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

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum,

discretionary funds of Members of the Legislature,9 although, as will be later
discussed, its usage would evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest
form of "Congressional Pork Barrel" in the Philippines since the utilization of
the funds appropriated therein were subjected to post-enactment legislator
approval. Particularly, in the area of fund release, Section 312 provides that the
sums appropriated for certain public works projects13 "shall be distributed x x
x subject to the approval of a joint committee elected by the Senate and the
House of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by the Secretary
of Commerce and Communications."14 Also, in the area of fund realignment,
the same section provides that the said secretary, "with the approval of said
joint committee, or of the authorized members thereof, may, for the purposes
of said distribution, transfer unexpended portions of any item of appropriation
under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
 identification. During that year, the mechanics of the public works act was
modified to the extent that the discretion of choosing projects was transferred
from the Secretary of Commerce and Communications to legislators. "For the
first time, the law carried a list of projects selected by Members of Congress,
they ‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this period, the
pork barrel process commenced with local government councils, civil groups,
and individuals appealing to Congressmen or Senators for projects. Petitions
that were accommodated formed part of a legislator‘s allocation, and the
amount each legislator would eventually get is determined in a caucus
convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and
Communications. Thereafter, the Senate and the House of Representatives
added their own provisions to the bill until it was signed into law by the
President – the Public Works Act.17 In the 1960‘s, however, pork barrel
legislation reportedly ceased in view of the stalemate between the House of
Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued

in 1972 after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang
Pambansa had already introduced a new item in the General Appropriations
Act (GAA) called the" Support for Local Development Projects" (SLDP)
under the article on "National Aid to Local Government Units". Based on
reports,20 it was under the SLDP that the practice of giving lump-sum
allocations to individual legislators began, with each assemblyman receiving
₱500,000.00. Thereafter, assemblymen would communicate their project
preferences to the Ministry of Budget and Management for approval. Then,
the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblyman‘s locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not
only public works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which would fall under
the categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of
Philippine democracy, "Congressional Pork Barrel" was revived in the form of
the "Mindanao Development Fund" and the "Visayas Development Fund"
which were created with lump-sum appropriations of ₱480 Million and ₱240
Million, respectively, for the funding of development projects in the Mindanao
and Visayas areas in 1989. It has been documented23 that the clamor raised by
the Senators and the Luzon legislators for a similar funding, prompted the
creation of the "Countrywide Development Fund" (CDF) which was
 integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover
"small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the
approval of the President, to be released directly to the implementing agencies
but "subject to the submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992 were silent as to the
amounts of allocations of the individual legislators, as well as their
participation in the identification of projects, it has been reported26 that by
1992, Representatives were receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without any limitation or
qualification, and that they could identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and buildings to "soft projects"
such as textbooks, medicines, and scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of
CDF funds was to be made upon the submission of the list of projects and
activities identified by, among others, individual legislators. For the first time,
the 1993 CDF Article included an allocation for the Vice-President.29 As such,
Representatives were allocated ₱12.5 Million each in CDF funds, Senators,
₱18 Million each, and the Vice-President, ₱20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on
project identification and fund release as found in the 1993 CDF Article. In
addition, however, the Department of Budget and Management (DBM) was
directed to submit reports to the Senate Committee on Finance and the House
Committee on Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President,
in consultation with the implementing agency concerned, were directed to
submit to the DBM the list of 50% of projects to be funded from their
respective CDF allocations which shall be duly endorsed by (a) the Senate
President and the Chairman of the Committee on Finance, in the case of the
Senate, and (b) the Speaker of the House of Representatives and the Chairman
of the Committee on Appropriations, in the case of the House of
Representatives; while the list for the remaining 50% was to be submitted
within six (6) months thereafter. The same article also stated that the project
list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the

required lists and endorsements were reproduced, except that the publication
of the project list was no longer required as the list itself sufficed for the
release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at
that time. Other forms of "Congressional Pork Barrel" were reportedly
 fashioned and inserted into the GAA (called "Congressional Insertions" or
"CIs") in order to perpetuate the ad ministration‘s political agenda.37 It has
been articulated that since CIs "formed part and parcel of the budgets of
executive departments, they were not easily identifiable and were thus harder
to monitor." Nonetheless, the lawmakers themselves as well as the finance and
budget officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions.38 Examples of these CIs are the
Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Niño Fund, and the
Poverty Alleviation Fund.39 The allocations for the School Building Fund,
particularly, ―shall be made upon prior consultation with the representative
of the legislative district concerned.”40 Similarly, the legislators had the power
to direct how, where and when these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3)
separate forms of CIs, namely, the "Food Security Program Fund,"43 the
"Lingap Para Sa Mahihirap Program Fund,"44 and the "Rural/Urban
Development Infrastructure Program Fund,"45 all of which contained a special
provision requiring "prior consultation" with the Member s of Congress for the
release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund"
(PDAF) appeared in the GAA. The requirement of "prior consultation with the
respective Representative of the District" before PDAF funds were directly
released to the implementing agency concerned was explicitly stated in the
2000 PDAF Article. Moreover, realignment of funds to any expense category
was expressly allowed, with the sole condition that no amount shall be used to
fund personal services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA
for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained
a single special provision ordering the release of the funds directly to the
implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was
present, with simply an expansion of purpose and express authority to realign.
Nevertheless, the provisions in the 2003 budgets of the Department of Public
Works and Highways51 (DPWH) and the DepEd52 required prior consultation
with Members of Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund
priority programs and projects under the ten point agenda of the national
government and shall be released directly to the implementing agencies." It
also introduced the program menu concept,55 which is essentially a list of
general programs and implementing agencies from which a particular PDAF
 project may be subsequently chosen by the identifying authority. The 2005
GAA was re-enacted56 in 2006 and hence, operated on the same bases. In
similar regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to
the specific amounts allocated for the individual legislators, as well as their
participation in the proposal and identification of PDAF projects to be funded.
In contrast to the PDAF Articles, however, the provisions under the DepEd
School Building Program and the DPWH budget, similar to its predecessors,
explicitly required prior consultation with the concerned Member of
Congress61 anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal
participation of non-governmental organizations (NGO) in the implementation
of government projects were introduced. In the Supplemental Budget for 2006,
with respect to the appropriation for school buildings, NGOs were, by law,
encouraged to participate. For such purpose, the law stated that "the amount of
at least ₱250 Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for
its "Operation Barrio School" program, with capability and proven track
records in the construction of public school buildings x x x."62 The same
allocation was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007
(GPPB Resolution 12-2007), amending the implementing rules and
regulations65 of RA 9184,66 the Government Procurement Reform Act, to
include, as a form of negotiated procurement,67 the procedure whereby the
Procuring Entity68 (the implementing agency) may enter into a memorandum
of agreement with an NGO, provided that "an appropriation law or ordinance
earmarks an amount to be specifically contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts
allocated for individual legislators and the Vice-President: Representatives
were given ₱70 Million each, broken down into ₱40 Million for "hard
projects" and ₱30 Million for "soft projects"; while ₱200 Million was given to
each Senator as well as the Vice-President, with a ₱100 Million allocation
each for "hard" and "soft projects." Likewise, a provision on realignment of
funds was included, but with the qualification that it may be allowed only
once. The same provision also allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways
to realign PDAF Funds, with the further conditions that: (a) realignment is
within the same implementing unit and same project category as the original
project, for infrastructure projects; (b) allotment released has not yet been
 obligated for the original scope of work, and (c) the request for realignment is
with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of
projects and/or designation of beneficiaries shall conform to the priority list,
standard or design prepared by each implementing agency (priority list
requirement) x x x." However, as practiced, it would still be the individual
legislator who would choose and identify the project from the said priority
list.74

Provisions on legislator allocations75 as well as fund realignment76 were

included in the 2012 and 2013 PDAF Articles; but the allocation for the Vice-
President, which was pegged at ₱200 Million in the 2011 GAA, had been
deleted. In addition, the 2013 PDAF Article now allowed LGUs to be
identified as implementing agencies if they have the technical capability to
implement the projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and scholarships,
outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds, modification
and revision of project identification, as well as requests for release of funds,
were all required to be favorably endorsed by the House Committee on
Appropriations and the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum,
discretionary funds of Members of Congress, the present cases and the recent
controversies on the matter have, however, shown that the term‘s usage has expanded
to include certain funds of the President such as the Malampaya Funds and the
Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section
880 of Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E.
Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos recognized the
need to set up a special fund to help intensify, strengthen, and consolidate government
efforts relating to the exploration, exploitation, and development of indigenous energy
resources vital to economic growth.82 Due to the energy-related activities of the
government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep
Water Gas-to-Power Project",83 the special fund created under PD 910 has been
currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title
IV84 of PD 1869,85 or the Charter of the Philippine Amusement and Gaming
Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993
on October 31, 1985,86 amending Section 1287 of the former law. As it stands, the
Presidential Social Fund has been described as a special funding facility managed and
administered by the Presidential Management Staff through which the President
provides direct assistance to priority programs and projects not funded under the
 regular budget. It is sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased

tremendously,89 owing in no small part to previous Presidents who reportedly used the
"Pork Barrel" in order to gain congressional support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel" erupted. Former Marikina City
Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid
on the huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘
(standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging,
rip rapping, sphalting, concreting, and construction of school buildings."92 "Other
sources of kickbacks that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money trail became the
banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied
by an illustration of a roasted pig."93 "The publication of the stories, including those
about congressional initiative allocations of certain lawmakers, including ₱3.6 Billion
for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the

PDAF as enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack
of "any pertinent evidentiary support that illegal misuse of PDAF in the form of
kickbacks has become a common exercise of unscrupulous Members of Congress,"
the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI)
began its probe into allegations that "the government has been defrauded of some ₱10
Billion over the past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of ghost projects."96 The
investigation was spawned by sworn affidavits of six (6) whistle-blowers who
declared that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) –
had swindled billions of pesos from the public coffers for "ghost projects" using no
fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly
the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles‘ private accounts.97 Thus, after its investigation on the
Napoles controversy, criminal complaints were filed before the Office of the
Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers
for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt
Practices Act. Also recommended to be charged in the complaints are some of the
lawmakers‘ chiefs -of-staff or representatives, the heads and other officials of three
(3) implementing agencies, and the several presidents of the NGOs set up by
Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-
year audit investigation99 covering the use of legislators' PDAF from 2007 to 2009, or
during the last three (3) years of the Arroyo administration. The purpose of the audit
was to determine the propriety of releases of funds under PDAF and the Various
Infrastructures including Local Projects (VILP)100 by the DBM, the application of
these funds and the implementation of projects by the appropriate implementing
agencies and several government-owned-and-controlled corporations
(GOCCs).101 The total releases covered by the audit amounted to ₱8.374 Billion in
PDAF and ₱32.664 Billion in VILP, representing 58% and 32%, respectively, of the
total PDAF and VILP releases that were found to have been made nationwide during
the audit period.102 Accordingly, the Co A‘s findings contained in its Report No.
2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the
highlights of which are as follows:103

● Amounts released for projects identified by a considerable number of

legislators significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of

sponsoring members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated
under the 2007 to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these having

been turned over to the government.

● Significant amounts were released to implementing agencies without the

latter‘s endorsement and without considering their mandated functions,
administrative and technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the

implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred

seventy two (772) projects amount to ₱6.156 Billion were either found
questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of

goods and services reportedly used in the projects were not compliant with
law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900
Million from royalties in the operation of the Malampaya gas project off Palawan
province intended for agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA
 Chairperson), the CoA is, as of this writing, in the process of preparing "one
consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the
"Pork Barrel System" be declared unconstitutional. To recount, the relevant
procedural antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social
Justice Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of
Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of Representatives, from further taking
any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever
form and by whatever name it may be called, and from approving further releases pursuant
thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez,

Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr.
(Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition),
seeking that the annual "Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund,107 be
declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa,
Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective
capacities as the incumbent Executive Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents, for them to immediately cease
any expenditure under the aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public: (a) "the complete schedule/list
of legislators who have availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the recipient entities or individuals,
and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum, discretionary
funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient
entities or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion in
budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and
remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No.
208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a

Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno Simeon
S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members
of Congress and, instead, allow their release to fund priority projects identified and approved
by the Local Development Councils in consultation with the executive departments, such as
the DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all
cases; (b) requiring public respondents to comment on the consolidated petitions; (c) issuing
a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive
Secretary, or any of the persons acting under their authority from releasing (1) the remaining
PDAF allocated to Members of Congress under the GAA of 2013, and (2) Malampaya Funds
under the phrase "for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource
development and exploitation programs and projects of the government‖ under the same
provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated
Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative,
the partial lifting with respect to educational and medical assistance purposes, of the Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of
merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to
reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment:
(a) on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30,
2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1,
2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed
by the parties for the Oral Arguments scheduled on October 8, 2013. In view of the
technicality of the issues material to the present cases, incumbent Solicitor General Francis
H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments
representative/s from the DBM and Congress who would be able to competently and
completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby
requested to appear before the Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court
directed the parties to submit their respective memoranda within a period of seven (7) days,
or until October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main
issues for the Court‘s resolution:

I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of policy
not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s
Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled
"Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of
Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of
the "Pork Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks
and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the

constitutionality or validity of a law or governmental act may be heard and decided by the
Court unless there is compliance with the legal requisites for judicial inquiry,117 namely: (a)
there must be an actual case or controversy calling for the exercise of judicial power; (b) the
person challenging the act must have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the earliest opportunity ; and
(d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites,
case law states that the first two are the most important119 and, therefore, shall be discussed
forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence."122 Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it.
It is a prerequisite that something had then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action."123 "Withal,
courts will decline to pass upon constitutional issues through advisory opinions, bereft as they
are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable
controversy in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions
of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in
these consolidated cases are ripe for adjudication since the challenged funds and the
provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for
the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social
Fund – are currently existing and operational; hence, there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose can
be served in passing upon the merits.125 Differing from this description, the Court observes
that respondents‘ proposed line-item budgeting scheme would not terminate the controversy
nor diminish the useful purpose for its resolution since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains
legally effective and existing. Neither will the President‘s declaration that he had already
"abolished the PDAF" render the issues on PDAF moot precisely because the Executive
branch of government has no constitutional authority to nullify or annul its legal existence.
By constitutional design, the annulment or nullification of a law may be done either by
Congress, through the passage of a repealing law, or by the Court, through a declaration of
unconstitutionality. Instructive on this point is the following exchange between Associate
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct?
Solicitor General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of
the PDAF, the President has a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will continue the release of the soft
projects," and that started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has
the power to stop the releases in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code128 x x x. So at most the President
can suspend, now if the President believes that the PDAF is unconstitutional, can he just
refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of
the PDAF because of the CoA Report, because of the reported irregularities and this Court
can take judicial notice, even outside, outside of the COA Report, you have the report of the
whistle-blowers, the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies,
you stop and investigate, and prosecute, he has done that. But, does that mean that PDAF has
been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes
a law to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners –
they essentially allege grave violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the interests
involved

– the constitutionality of the very system within which significant amounts of public funds
have been and continue to be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public interest. The present petitions,
in fact, have been lodged at a time when the system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the government‘s own recognition that reforms are needed
"to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter. It is also by this finding that the Court
finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the
weight accorded by the Court to the findings made by the CoA which is the constitutionally-
mandated audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the
Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it was
emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It
is tasked to be vigilant and conscientious in safeguarding the proper use of the government's,
and ultimately the people's, property. The exercise of its general audit power is among the
constitutional mechanisms that gives life to the check and balance system inherent in our
form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings. x x x. (Emphases
supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for
a definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments,
the CoA Chairperson estimates that thousands of notices of disallowances will be issued by
her office in connection with the findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would
eventually find their way to the courts.132 Accordingly, there is a compelling need to
formulate controlling principles relative to the issues raised herein in order to guide the
bench, the bar, and the public, not just for the expeditious resolution of the anticipated
disallowance cases, but more importantly, so that the government may be guided on how
public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence.133 The relevance of the issues before the Court does not cease with the
passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by
its multifarious iterations throughout the course of history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just resurface wearing a different collar."135 In
Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception
in order "to prevent similar questions from re- emerging."137 The situation similarly holds
true to these cases. Indeed, the myriad of issues underlying the manner in which certain
public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question
doctrine which, under the classic formulation of Baker v. Carr,139 applies when there is found,
among others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and manageable standards
for resolving it" or "the impossibility of deciding without an initial policy determination of a
kind clearly for non- judicial discretion." Cast against this light, respondents submit that the
"the political branches are in the best position not only to perform budget-related reforms but
also to do them in response to the specific demands of their constituents" and, as such, "urge
the Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of
the "Pork Barrel System" is not an issue dependent upon the wisdom of the political branches
of government but rather a legal one which the Constitution itself has commanded the Court
to act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an
exercise of judicial power. More importantly, the present Constitution has not only vested the
Judiciary the right to exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The
judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. It includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." In Estrada v. Desierto,142 the
expanded concept of judicial power under the 1987 Constitution and its effect on the political
question doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore,
the judiciary has focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of government.
Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and
sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is
laudably cognizant of the reforms undertaken by its co-equal branches of government. But it
is by constitutional force that the Court must faithfully perform its duty. Ultimately, it is the
Court‘s avowed intention that a resolution of these cases would not arrest or in any manner
impede the endeavors of the two other branches but, in fact, help ensure that the pillars of
change are erected on firm constitutional grounds. After all, it is in the best interest of the
people that each great branch of government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions. Unless a person is injuriously affected in any of his constitutional
rights by the operation of statute or ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the validity
of the existing "Pork Barrel System" under which the taxes they pay have been and continue
to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been
allowed to sue where there is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public funds are wasted through
the enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that
the issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest."148 The CoA
Chairperson‘s statement during the Oral Arguments that the present controversy involves
"not merely a systems failure" but a "complete breakdown of controls"149 amplifies, in
addition to the matters above-discussed, the seriousness of the issues involved herein. Indeed,
of greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous
but factually similar dispositions to subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in relation to its prior rulings in Philconsa and
LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there exists an identity of parties, of
subject matter, and of causes of action.151 This required identity is not, however, attendant
hereto since Philconsa and LAMP, respectively involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is
essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on
the merits – in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no
need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow
if the facts are substantially the same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful countervailing considerations, like
cases ought to be decided alike. Thus, where the same questions relating to the same event
have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the
same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose and
identify projects and activities to be funded by the CDF is an encroachment by the legislature
on executive power, since said power in an appropriation act is in implementation of the law"
and that "the proposal and identification of the projects do not involve the making of laws or
the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following
main conclusions: one, under the Constitution, the power of appropriation, or the "power of
the purse," belongs to Congress; two, the power of appropriation carries with it the power to
specify the project or activity to be funded under the appropriation law and it can be detailed
and as broad as Congress wants it to be; and, three, the proposals and identifications made by
Members of Congress are merely recommendatory. At once, it is apparent that the Philconsa
resolution was a limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of Congress. On
the contrary, the present cases call for a more holistic examination of (a) the inter-relation
between the CDF and PDAF Articles with each other, formative as they are of the entire
"Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of
project identification but also to the areas of fund release and realignment. The complexity of
the issues and the broader legal analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise
in allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of appropriation and the power of
appropriation is a form of legislative power thereby lodged in Congress, then it follows that:
(a) it is Congress which should exercise such authority, and not its individual Members; (b)
such authority must be exercised within the prescribed procedure of law passage and, hence,
should not be exercised after the GAA has already been passed; and (c) such authority, as
embodied in the GAA, has the force of law and, hence, cannot be merely recommendatory.
Justice Vitug‘s Concurring Opinion in the same case sums up the Philconsa quandary in this
wise: "Neither would it be objectionable for Congress, by law, to appropriate funds for such
specific projects as it may be minded; to give that authority, however, to the individual
members of Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight and current findings on the
matter, among others, the CoA Report, the Court must partially abandon its previous ruling in
Philconsa insofar as it validated the post-enactment identification authority of Members of
Congress on the guise that the same was merely recommendatory. This postulate raises
serious constitutional inconsistencies which cannot be simply excused on the ground that
such mechanism is "imaginative as it is innovative." Moreover, it must be pointed out that the
recent case of Abakada Guro Party List v. Purisima155 (Abakada) has effectively overturned
Philconsa‘s allowance of post-enactment legislator participation in view of the separation of
powers principle. These constitutional inconsistencies and the Abakada rule will be discussed
in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural
technicality and, hence, has not set any controlling doctrine susceptible of current application
to the substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define
the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel"
as they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative
and Executive branches of government to accumulate lump-sum public funds in their offices
with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a)
lump-sum funds are allocated through the appropriations process to an individual officer; (b)
the officer is given sole and broad discretion in determining how the funds will be used or
expended; (c) the guidelines on how to spend or use the funds in the appropriation are either
vague, overbroad or inexistent; and (d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the political careers of the
disbursing official by yielding rich patronage benefits.157 They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the
Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the
Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and
the Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history, the
Court defines the Pork Barrel System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily intended for local projects, are
utilized through the respective participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System involves two (2) kinds of lump-
sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the
PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia,
a post-enactment measure that allows individual legislators to wield a collective
power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues
of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."163 To the legislative branch of government, through
Congress,164 belongs the power to make laws; to the executive branch of government,
through the President,165 belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to interpret laws. Because the three
great powers have been, by constitutional design, ordained in this respect, "each department
of the government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere."167 Thus, "the legislature has no authority to execute or construe the
law, the executive has no authority to make or construe the law, and the judiciary has no
power to make or execute the law."168 The principle of separation of powers and its concepts
of autonomy and independence stem from the notion that the powers of government must be
divided to avoid concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one branch of
government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another. US Supreme Court decisions
instruct that the principle of separation of powers may be violated in two (2) ways: firstly,
"one branch may interfere impermissibly with the other’s performance of its constitutionally
assigned function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another."172 In other words, there is a
violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the
phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them.175 Thus,
unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its
members, should not cross over the field of implementing the national budget since, as earlier
stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the Court
stated that "Congress enters the picture when it deliberates or acts on the budget proposals of
the President. Thereafter, Congress, "in the exercise of its own judgment and wisdom,
formulates an appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval and passage of the GAA,
Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role
of implementing the national budget begins. So as not to blur the constitutional boundaries
between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court
held that "from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of the
law violates the principle of separation of powers and is thus unconstitutional."177 It must be
clarified, however, that since the restriction only pertains to "any role in the implementation
or enforcement of the law," Congress may still exercise its oversight function which is a
mechanism of checks and balances that the Constitution itself allows. But it must be made
clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure
allowing legislator participation beyond oversight is bereft of any constitutional basis and
hence, tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and

investigation.1âwphi1 In particular, congressional oversight must be confined to the
following:

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

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

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

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the
2013 PDAF Article – "wrecks the assignment of responsibilities between the political
branches" as it is designed to allow individual legislators to interfere "way past the time it
should have ceased" or, particularly, "after the GAA is passed."179 They state that the findings
and recommendations in the CoA Report provide "an illustration of how absolute and
definitive the power of legislators wield over project implementation in complete violation of
the constitutional principle of separation of powers."180 Further, they point out that the Court
in the Philconsa case only allowed the CDF to exist on the condition that individual
legislators limited their role to recommending projects and not if they actually dictate their
implementation.181

For their part, respondents counter that the separations of powers principle has not been
violated since the President maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals.182 They
maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members
of Congress to propose and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special Provisions [of the
2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184

The Court rules in favor of petitioners.

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

At its core, legislators – may it be through project lists,185 prior consultations186 or program
menus187 – have been consistently accorded post-enactment authority to identify the projects
they desire to be funded through various Congressional Pork Barrel allocations. Under the
2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may
be construed from the import of Special Provisions 1 to 3 as well as the second paragraph of
Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature
which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said
menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within
90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may
make his choice. The same provision further authorizes legislators to identify PDAF projects
outside his district for as long as the representative of the district concerned concurs in
writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount
of projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires
that any modification and revision of the project identification "shall be submitted to the
House Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be." From the
foregoing special provisions, it cannot be seriously doubted that legislators have been
accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013 PDAF
Article, the statutory authority of legislators to participate in the area of fund release through
congressional committees is contained in Special Provision 5 which explicitly states that "all
request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the
Senate Committee on Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first , paragraph 2, Special
Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance
for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment,
Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x
x to approve realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the concurrence of the
legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and,
hence, allow legislators to intervene and/or assume duties that properly belong to the sphere
of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or
another, authorized to participate in – as Guingona, Jr. puts it – "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for individual
activities" and the "regulation and release of funds" in violation of the separation of powers
principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated
– from the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional.191 That the said
authority is treated as merely recommendatory in nature does not alter its unconstitutional
tenor since the prohibition, to repeat, covers any role in the implementation or enforcement of
the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identification on the guise that the same is merely
recommendatory and, as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import.
Quite the contrary, respondents – through the statements of the Solicitor General during the
Oral Arguments – have admitted that the identification of the legislator constitutes a
mandatory requirement before his PDAF can be tapped as a funding source, thereby
highlighting the indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the
individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there
is no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no
specific examples. I would doubt very much, Your Honor, because to implement, there is a
need for a SARO and the NCA. And the SARO and the NCA are triggered by an
identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to
a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is
mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he does
not identify, he cannot avail of the PDAF Funds and his district would not be able to have
PDAF Funds, only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well
as all other provisions of law which similarly allow legislators to wield any form of post-
enactment authority in the implementation or enforcement of the budget, unrelated to
congressional oversight, as violative of the separation of powers principle and thus
unconstitutional. Corollary thereto, informal practices, through which legislators have
effectively intruded into the proper phases of budget execution, must be deemed as acts of
grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the
same unconstitutional treatment. That such informal practices do exist and have, in fact, been
constantly observed throughout the years has not been substantially disputed here. As pointed
out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral
Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of
Congress, if we enforces the initial thought that I have, after I had seen the extent of this
research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process. In
fact, the words you have been using, as the three lawyers of the DBM, and both Houses of
Congress has also been using is surprise; surprised that all of these things are now surfacing.
In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the
past practice that had been done since 1991. In a certain sense, we should be thankful that
they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through
formal measures written into the law or informal practices institutionalized in government
agencies, else the Executive department be deprived of what the Constitution has vested as its
own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively

exercised by the body to which the Constitution has conferred the same. In particular, Section
1, Article VI of the 1987 Constitution states that such power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of Representatives, except to
the extent reserved to the people by the provision on initiative and referendum.195 Based on
this provision, it is clear that only Congress, acting as a bicameral body, and the people,
through the process of initiative and referendum, may constitutionally wield legislative power
and no other. This premise embodies the principle of non-delegability of legislative power,
and the only recognized exceptions thereto would be: (a) delegated legislative power to local
governments which, by immemorial practice, are allowed to legislate on purely local
matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President
to, by law, exercise powers necessary and proper to carry out a declared national policy in
times of war or other national emergency,197 or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts within the framework of the national
development program of the Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate
rule-making authority to implementing agencies for the limited purpose of either filling up
the details of the law for its enforcement (supplementary rule-making) or ascertaining facts to
bring the law into actual operation (contingent rule-making).199 The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v. Maceren200 as
follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle
of separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public
interest are necessary because of "the growing complexity of modern life, the multiplication
of the subjects of governmental regulations, and the increased difficulty of administering the
law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details
for regulating the mode or proceeding to carry into effect the law as it has been enacted. The
power cannot be extended to amending or expanding the statutory requirements or to
embrace matters not covered by the statute. Rules that subvert the statute cannot be
sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress.201 That the power to
appropriate must be exercised only through legislation is clear from Section 29(1), Article VI
of the 1987 Constitution which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." To understand what constitutes an act
of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by
law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under
the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from
which they are able to dictate (a) how much from such fund would go to (b) a specific project
or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013
PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the Constitution does not,
however, allow. Thus, keeping with the principle of non-delegability of legislative power, the
Court hereby declares the 2013 PDAF Article, as well as all other forms of Congressional
Pork Barrel which contain the similar legislative identification feature as herein discussed, as
unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and
distinct does not mean that they are absolutely unrestrained and independent of each other.
The Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to
veto an item written into an appropriation, revenue or tariff bill submitted to him by Congress
for approval through a process known as "bill presentment." The President‘s item-veto power
is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he
does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may
exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the Constitution.204 As stated in
Abakada, the final step in the law-making process is the "submission of the bill to the
President for approval. Once approved, it takes effect as law after the required
publication."205

Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief
Executive an integral part of the law-making power. His disapproval of a bill, commonly
known as a veto, is essentially a legislative act. The questions presented to the mind of the
Chief Executive are precisely the same as those the legislature must determine in passing a
bill, except that his will be a broader point of view.

The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution. But in exercising
that authority he may not be confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge every intendment in favor of the
constitutionality of a veto in the same manner as they will presume the constitutionality of an
act as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as
to prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to
fortify the executive branch‘s role in the budgetary process.208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s item-
power as "a salutary check upon the legislative body, calculated to guard the community
against the effects of factions, precipitancy, or of any impulse unfriendly to the public good,
which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through
haste, inadvertence, or design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a
proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President
may be able to exercise his power of item veto, must contain "specific appropriations of
money" and not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item

characterized by singular correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item."211 This treatment
not only allows the item to be consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto the same. Based on the
foregoing formulation, the existing Calamity Fund, Contingent Fund and the Intelligence
Fund, being appropriations which state a specified amount for a specific purpose, would then
be considered as "line- item" appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must be
allocated for its own corresponding purpose for such component to be considered as a proper
line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related
purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto
power. Finally, special purpose funds and discretionary funds would equally square with the
constitutional mechanism of item-veto for as long as they follow the rule on singular
correspondence as herein discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that the "special appropriations
bill shall specify the purpose for which it is intended, and shall be supported by funds
actually available as certified by the National Treasurer, or t o be raised by a corresponding
revenue proposal therein." Meanwhile, with respect to discretionary funds, Section 2 5(6),
Article VI of the 1987 Constitution requires that said funds "shall be disbursed only for
public purposes to be supported by appropriate vouchers and subject to such guidelines as
may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide
for a singular lump-sum amount to be tapped as a source of funding for multiple purposes.
Since such appropriation type necessitates the further determination of both the actual amount
to be expended and the actual purpose of the appropriation which must still be chosen from
the multiple purposes stated in the law, it cannot be said that the appropriation law already
indicates a "specific appropriation of money‖ and hence, without a proper line-item which the
President may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its purposes
wasteful or undesirable, or approving the entire appropriation so as not to hinder some of its
legitimate purposes. Finally, it may not be amiss to state that such arrangement also raises
non-delegability issues considering that the implementing authority would still have to
determine, again, both the actual amount to be expended and the actual purpose of the
appropriation. Since the foregoing determinations constitute the integral aspects of the power
to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-
sum appropriation, the legislator‘s identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on."212 Accordingly, they submit that
the "item veto power of the President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process
which is intended to meet the demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations which are barely foreseen when a
GAA is enacted. They argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus effectuated without veto consideration.
This kind of lump-sum/post-enactment legislative identification budgeting system fosters the
creation of a budget within a budget" which subverts the prescribed procedure of presentment
and consequently impairs the President‘s power of item veto. As petitioners aptly point out,
the above-described system forces the President to decide between (a) accepting the entire
₱24.79 Billion PDAF allocation without knowing the specific projects of the legislators,
which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF
Article would remain constitutionally flawed since it would then operate as a prohibited form
of lump-sum appropriation above-characterized. In particular, the lump-sum amount of
₱24.79 Billion would be treated as a mere funding source allotted for multiple purposes of
spending, i.e., scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the appropriation for further
determination and, therefore, does not readily indicate a discernible item which may be
subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that
would aid in more stringently auditing the utilization of said Funds."216 Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program, activity
or project, and per implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as
all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such
budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first
and essential truth of the matter is that unconstitutional means do not justify even
commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork
Barrel operate defies public accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested partners."219 They also claim
that the system has an effect on re- election as "the PDAF excels in self-perpetuation of
elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as
such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people‘s trust. The notion of a public
trust connotes accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public
funds may be checked is the power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by
either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant
to the power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested
"observers" when scrutinizing, investigating or monitoring the implementation of the
appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the
1987 Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither shall he, directly or indirectly, be interested financially in
any contract with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not intervene in
any matter before any office of the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a

matter before another office of government – renders them susceptible to taking undue
advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or
the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself
in office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be
linked to this area of interest, the use of his PDAF for re-election purposes is a matter which
must be analyzed based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former‘s post-enactment
participation, may affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel System‘s intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate
Section 14, Article VI of the 1987 Constitution, thus impairing public accountability, the
2013 PDAF Article and other forms of Congressional Pork Barrel of similar nature are
deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are
members of political dynasties to accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-
executing due to the qualifying phrase "as may be defined by law." In this respect, said
provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action.226 Therefore, since there
appears to be no standing law which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative
since it has not been properly demonstrated how the Pork Barrel System would be able to
propagate political dynasties.

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and
Sections 2 and 3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and
operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government
Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically
explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining
and effective contributors to the national economy. As explained by the Court in Philippine
Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy
of local autonomy which is intended to provide the needed impetus and encouragement to the
development of our local political subdivisions as "self - reliant communities." In the words
of Jefferson, "Municipal corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will enable their inhabitants to
fully exploit their resources and more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic. This objective could be blunted
by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local
development.230 The Court agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is
also a recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project."231 Drawing strength from this
pronouncement, previous legislators justified its existence by stating that "the relatively small
projects implemented under the Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as to depressed areas which are
overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his
August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President
Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify projects for communities that the LGU
concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the
system which actually belies the avowed intention of "making equal the unequal." In
particular, the Court observes that the gauge of PDAF and CDF allocation/division is based
solely on the fact of office, without taking into account the specific interests and peculiarities
of the district the legislator represents. In this regard, the allocation/division limits are clearly
not based on genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a highly-urbanized
metropolis gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively "underdeveloped" compared to the former. To add, what
rouses graver scrutiny is that even Senators and Party-List Representatives – and in some
years, even the Vice-President – who do not represent any locality, receive funding from the
Congressional Pork Barrel as well. These certainly are anathema to the Congressional Pork
Barrel‘s original intent which is "to make equal the unequal." Ultimately, the PDAF and CDF
had become personal funds under the effective control of each legislator and given unto them
on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are
already legally mandated to "assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially
geared towards managing local affairs,235 their programs, policies and resolutions should not
be overridden nor duplicated by individual legislators, who are national officers that have no
law-making authority except only when acting as a body. The undermining effect on local
autonomy caused by the post-enactment authority conferred to the latter was succinctly put
by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure
planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now,

amended by PD 1993), which respectively provide for the Malampaya Funds and the
Presidential Social Fund, as invalid appropriations laws since they do not have the "primary
and specific" purpose of authorizing the release of public funds from the National Treasury.
Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary
and specific‖ purpose of PD 910 is the creation of an Energy Development Board and Section
8 thereof only created a Special Fund incidental thereto.237 In similar regard, petitioners argue
that Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the
Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD
1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In view of the
foregoing, petitioners suppose that such funds are being used without any valid law allowing
for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the
1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the
word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to
appropriate exists. As the Constitution "does not provide or prescribe any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa –
be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate
may be gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the authorization or appropriation
under the questioned presidential decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting legislations) as well as
expressly for the current fiscal year (as by enactment of laws by the present Congress), just as
said appropriation may be made in general as well as in specific terms. The Congressional
authorization may be embodied in annual laws, such as a general appropriations act or in
special provisions of laws of general or special application which appropriate public funds for
specific public purposes, such as the questioned decrees. An appropriation measure is
sufficient if the legislative intention clearly and certainly appears from the language
employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the present.
(Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the

designated purpose. The word appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the constitution means the setting
apart a portion of the public funds for a public purpose. No particular form of words is
necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases
supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation
must be the "primary and specific" purpose of the law in order for a valid appropriation law
to exist. To reiterate, if a legal provision designates a determinate or determinable amount of
money and allocates the same for a particular public purpose, then the legislative intent to
appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an
"appropriation made by law" under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from
service contracts and agreements such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from concessionaires, representing
unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service contracts and
similar payments on the exploration, development and exploitation of energy resources, shall
form part of a Special Fund to be used to finance energy resource development and
exploitation programs and projects of the government and for such other purposes as may be
hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise
Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the
priority infrastructure development projects and to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded
that (a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues,
and receipts of the Energy Development Board from any and all sources" (a determinable
amount) "to be used to finance energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter directed by the
President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by PD
1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or
60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the restoration
of damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" (also a specified public purpose), are legal
appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed
as a legal appropriation under the said constitutional provision precisely because, as earlier
stated, it contains post-enactment measures which effectively create a system of intermediate
appropriations. These intermediate appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators after the GAA is passed, they
occur outside the law. As such, the Court observes that the real appropriation made under the
2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF, but rather the
post-enactment determinations made by the individual legislators which are, to repeat,
occurrences outside of the law. Irrefragably, the 2013 PDAF Article does not constitute an
"appropriation made by law" since it, in its truest sense, only authorizes individual legislators
to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue

delegation of legislative power since the phrase "and for such other purposes as may be
hereafter directed by the President" gives the President "unbridled discretion to determine for
what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and thus, construe the phrase "and
for such other purposes as may be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and exploitation programs and projects of
the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public
purpose is sufficient for a legal appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making.246 There are two (2) fundamental tests to
ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first
test is called the "completeness test." Case law states that a law is complete when it sets forth
therein the policy to be executed, carried out, or implemented by the delegate. On the other
hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law
lays down a sufficient standard when it provides adequate guidelines or limitations in the law
to map out the boundaries of the delegate‘s authority and prevent the delegation from running
riot.247 To be sufficient, the standard must specify the limits of the delegate‘s authority,
announce the legislative policy, and identify the conditions under which it is to be
implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes
an undue delegation of legislative power insofar as it does not lay down a sufficient standard
to adequately determine the limits of the President‘s authority with respect to the purpose for
which the Malampaya Funds may be used. As it reads, the said phrase gives the President
wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect,
allows him to unilaterally appropriate public funds beyond the purview of the law. That the
subject phrase may be confined only to "energy resource development and exploitation
programs and projects of the government" under the principle of ejusdem generis, meaning
that the general word or phrase is to be construed to include – or be restricted to – things akin
to, resembling, or of the same kind or class as those specifically mentioned,249 is belied by
three (3) reasons: first, the phrase "energy resource development and exploitation programs
and projects of the government" states a singular and general class and hence, cannot be
treated as a statutory reference of specific things from which the general phrase "for such
other purposes" may be limited; second, the said phrase also exhausts the class it represents,
namely energy development programs of the government;250 and, third, the Executive
department has, in fact, used the Malampaya Funds for non-energy related purposes under the
subject phrase, thereby contradicting respondents‘ own position that it is limited only to
"energy resource development and exploitation programs and projects of the
government."251 Thus, while Section 8 of PD 910 may have passed the completeness test
since the policy of energy development is clearly deducible from its text, the phrase "and for
such other purposes as may be hereafter directed by the President" under the same provision
of law should nonetheless be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be
underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya Funds
"to finance energy resource development and exploitation programs and projects of the
government," remains legally effective and subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya
Funds would be used – as it should be used – only in accordance with the avowed purpose
and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12
of PD 1869 has already been amended by PD 1993 which thus moots the parties‘ submissions
on the same.252 Nevertheless, since the amendatory provision may be readily examined under
the current parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential

Social Fund may be used "to first, finance the priority infrastructure development projects
and second, to finance the restoration of damaged or destroyed facilities due to calamities, as
may be directed and authorized by the Office of the President of the Philippines." The Court
finds that while the second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration purposes which arise
from calamities, the first indicated purpose, however, gives him carte blanche authority to use
the same fund for any infrastructure project he may so determine as a "priority". Verily, the
law does not supply a definition of "priority in frastructure development projects" and hence,
leaves the President without any guideline to construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a classification since the said term could
pertain to any kind of facility. This may be deduced from its lexicographic definition as
follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce
as well as economic and residential development."253 In fine, the phrase "to finance the
priority infrastructure development projects" must be stricken down as unconstitutional since
– similar to the above-assailed provision under Section 8 of PD 910 – it lies independently
unfettered by any sufficient standard of the delegating law. As they are severable, all other
provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective and
subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the
Court did so in the context of its pronouncements made in this Decision – petitioners equally
pray that the Executive Secretary and/or the DBM be ordered to release to the CoA and to the
public: (a) "the complete schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and
the recipient entities or individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR
x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘
prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements
a policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a
petition for mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the
Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that
the right to information does not include the right to compel the preparation of "lists,
abstracts, summaries and the like." In the same case, it was stressed that it is essential that the
"applicant has a well -defined, clear and certain legal right to the thing demanded and that it
is the imperative duty of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information. The pertinent
portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their desire
to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a
well-defined, clear and certain legal right to the thing demanded and that it is the imperative
duty of defendant to perform the act required. The corresponding duty of the respondent to
perform the required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768,
November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976,
72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary and/or the DBM of their
requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would form the bases of the latter‘s duty to
furnish them with the documents requested. While petitioners pray that said information be
equally released to the CoA, it must be pointed out that the CoA has not been impleaded as a
party to these cases nor has it filed any petition before the Court to be allowed access to or to
compel the release of any official document relevant to the conduct of its audit investigations.
While the Court recognizes that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of disclosure are properly foisted and
so as not to unduly hamper the equally important interests of the government, it is constrained
to deny petitioners‘ prayer on this score, without prejudice to a proper mandamus case which
they, or even the CoA, may choose to pursue through a separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be
furnished with such schedule/list and report and not in any way deny them, or the general
public, access to official documents which are already existing and of public record. Subject
to reasonable regulation and absent any valid statutory prohibition, access to these documents
should not be proscribed. Thus, in Valmonte, while the Court denied the application for
mandamus towards the preparation of the list requested by petitioners therein, it nonetheless
allowed access to the documents sought for by the latter, subject, however, to the custodian‘s
reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the records may be avoided,
that undue interference with the duties of the custodian of the records may be prevented and
that the right of other persons entitled to inspect the records may be insured Legaspi v. Civil
Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The
petition, as to the second and third alternative acts sought to be done by petitioners, is
meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda
Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited
to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO
or the Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
generally left to the prerogative of the political branches of government. Hence, lest the Court
itself overreach, it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the
concept of released funds. In response to the Court‘s September 10, 2013 TRO that enjoined
the release of the remaining PDAF allocated for the year 2013, the DBM issued Circular
Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads
as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by
the implementing agencies prior to the issuance of the TRO, may continually be implemented
and disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that
said SARO had been obligated by the implementing agency concerned prior to the issuance
of the Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO
does not yet involve the release of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if
covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and
unobligated allotments." They explain that once a SARO has been issued and obligated by
the implementing agency concerned, the PDAF funds covered by the same are already
"beyond the reach of the TRO because they cannot be considered as ‘remaining PDAF.‘"
They conclude that this is a reasonable interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10,
2013 TRO should be lifted is a matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect
of converting the temporary injunction into a permanent one. Hence, from the promulgation
of this Decision, the release of the remaining PDAF funds for 2013, among others, is now
permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
resolved as it has a practical impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds covered by obligated SAROs,
at the time this Decision is promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that
funds covered by an obligated SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific authority issued to identified
agencies to incur obligations not exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of which is subject to compliance
with specific laws or regulations, or is subject to separate approval or clearance by competent
authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not have the
direct and immediate effect of placing public funds beyond the control of the disbursing
authority. In fact, a SARO may even be withdrawn under certain circumstances which will
prevent the actual release of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA,264 which is subsequent to the issuance of a SARO. As may
be determined from the statements of the DBM representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it
comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the
SAROs issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have
been "released." In this respect, therefore, the disbursement of 2013 PDAF funds which are
only covered by obligated SAROs, and without any corresponding NCAs issued, must, at the
time of this Decision’s promulgation, be enjoined and consequently reverted to the
unappropriated surplus of the general fund. Verily, in view of the declared unconstitutionality
of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be disbursed even
though already obligated, else the Court sanctions the dealing of funds coming from an
unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have
been obligated but not released – meaning, those merely covered by a SARO – under the
phrase "and for such other purposes as may be hereafter directed by the President" pursuant
to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund under the
phrase "to finance the priority infrastructure development projects" pursuant to Section 12 of
PD 1869, as amended by PD 1993, which were altogether declared by the Court as
unconstitutional. However, these funds should not be reverted to the general fund as afore-
stated but instead, respectively remain under the Malampaya Funds and the Presidential
Social Fund to be utilized for their corresponding special purposes not otherwise declared as
unconstitutional.
E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such
other purposes as may be hereafter directed by the President" under Section 8 of PD 910, and
(2) "to finance the priority infrastructure development projects" under Section 12 of PD 1869,
as amended by PD 1993, must only be treated as prospective in effect in view of the operative
fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that
precisely because the judiciary is the governmental organ which has the final say on whether
or not a legislative or executive measure is valid, a period of time may have elapsed before it
can exercise the power of judicial review that may lead to a declaration of nullity. It would be
to deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which cannot justly be
ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of
our history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight,
post-enactment authority in vital areas of budget execution, the system has violated the
principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created a system of budgeting wherein
items are not textualized into the appropriations bill, it has flouted the prescribed procedure
of presentment and, in the process, denied the President the power to veto items ; insofar as it
has diluted the effectiveness of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they may be called to monitor and
scrutinize, the system has equally impaired public accountability ; insofar as it has authorized
legislators, who are national officers, to intervene in affairs of purely local nature, despite the
existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by
law for energy-related purposes only to other purposes he may deem fit as well as other
public funds under the broad classification of "priority infrastructure development projects,"
it has once more transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
methods and mechanisms the Court has herein pointed out should never again be adopted in
any system of governance, by any name or form, by any semblance or similarity, by any
influence or effect. Disconcerting as it is to think that a system so constitutionally unsound
has monumentally endured, the Court urges the people and its co-stewards in government to
look forward with the optimism of change and the awareness of the past. At a time of great
civic unrest and vociferous public debate, the Court fervently hopes that its Decision today,
while it may not purge all the wrongs of society nor bring back what has been lost, guides
this nation to the path forged by the Constitution so that no one may heretofore detract from
its cause nor stray from its course. After all, this is the Court‘s bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional

violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL:
(a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional
Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which authorize/d legislators – whether individually or collectively
organized into committees – to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas of project
identification, modification and revision of project identification, fund release and/or fund
realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past
and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles
and the various Congressional Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly
deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and
(e) the phrases (1) "and for such other purposes as may be hereafter directed by the President"
under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure
development projects" under Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, for both failing the sufficient standard test in violation of the
principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared
to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated
for the year 2013, as well as for all previous years, and the funds sourced from (1) the
Malampaya Funds under the phrase "and for such other purposes as may be hereafter directed
by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the
Presidential Social Fund under the phrase "to finance the priority infrastructure development
projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice
of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs),
whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this
permanent injunction shall not be disbursed/released but instead reverted to the
unappropriated surplus of the general fund, while the funds under the Malampaya Funds and
the Presidential Social Fund shall remain therein to be utilized for their respective special
purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the
Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments
and utilization of the funds subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these funds must, however, not be
prohibited but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper mandamus case
which they or the Commission on Audit may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these
cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative
of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the
bounds of reasonable dispatch, investigate and accordingly prosecute all government officials
and/or private individuals for possible criminal offenses related to the irregular, improper
and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED

A.C. No. 7399 August 25, 2009

ANTERO J. POBRE, Complainant,
vs.
Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent.

DECISION

VELASCO, JR., J.:

In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J. Pobre
invites the Court’s attention to the following excerpts of Senator Miriam Defensor-Santiago’s
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 Osmeña, 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 judge’s 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 assembly4 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.1avvphi1

No lawyer who has taken an oath to maintain the respect due to the courts should be allowed
to erode the people’s 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 people’s 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 Santiago’s 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 Court’s supervision, its
individual members, save perhaps for the Chief Justice who sits as the JBC’s ex-
officio chairperson,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 Santiago’s
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. Ferrer11 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 attorney’s 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.
Cloribel12 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 one’s behavior exhibited in
connection with the performance of lawyers’ professional duties, but also covers any
misconduct, which––albeit unrelated to the actual practice of their profession––would 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 people’s 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. Ang17 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 Senator’s 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 people’s 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
Santiago’s 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 Pobre’s 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 senator’s 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.