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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 208566

November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN
PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO
B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON
m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in
his capacity as SPEAKER OF THE HOUSE, Respondents.
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 systems 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 legislators
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 legislators 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 1960s, 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 P500,000.00. Thereafter, assemblymen would communicate their project preferences to the
Ministry of Budget and Management for approval. Then, the said ministry would release the allocation papers to the
Ministry of Local Governments, which would, in turn, issue the checks to the city or municipal treasurers in the
assemblymans 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

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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 P480 Million and P240 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 ofP2.3 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 receivingP12.5 Million each in CDF funds, while Senators were receiving P18 Million each,
without any limitation or qualification, and that they could identify any kind of project, from hard or infrastructure
projects such as roads, bridges, and buildings 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 P12.5
Million each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 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 ministrations 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.38Examples of these CIs are the Department of Education
(DepEd) School Building Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Nio Fund, and
the Poverty Alleviation Fund.39 The allocations for the School Building Fund, particularly, shall be made upon prior
consultation with the representative of the legislative district concerned.40 Similarly, the legislators had the power to
direct how, where and when these appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the "Food
Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44and the "Rural/Urban Development
Infrastructure Program Fund,"45 all of which contained a special provision requiring "prior consultation" with the
Member s of Congress for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in the GAA. The
requirement of "prior consultation with the respective Representative of the District" before PDAF funds were directly
released to the implementing agency concerned was explicitly stated in the 2000 PDAF Article. Moreover,
realignment of funds to any expense category was expressly allowed, with the sole condition that no amount shall be
used to fund personal services and other personnel benefits.47 The succeeding PDAF provisions remained the same
in view of the re-enactment48 of the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision ordering the
release of the funds directly to the implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was present, with simply an expansion of
purpose and express authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress on the
aspects of implementation delegation and project list submission, respectively. In 2004, the 2003 GAA was reenacted.53

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In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and projects under the
ten point agenda of the national government and shall be released directly to the implementing agencies." It also
introduced the program menu concept,55 which is essentially a list of general programs and implementing agencies
from which a particular PDAF project may be subsequently chosen by the identifying authority. The 2005 GAA was
re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program menu concept was
consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated for the
individual legislators, as well as their participation in the proposal and identification of PDAF projects to be funded. In
contrast to the PDAF Articles, however, the provisions under the DepEd School Building Program and the DPWH
budget, similar to its predecessors, explicitly required prior consultation with the concerned Member of
Congress61anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of non-governmental
organizations (NGO) in the implementation of government projects were introduced. In the Supplemental Budget for
2006, with respect to the appropriation for school buildings, NGOs were, by law, encouraged to participate. For such
purpose, the law stated that "the amount of at least P250 Million of the P500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the Federation of Filipino-Chinese
Chambers of Commerce and Industry, Inc. for its "Operation Barrio 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 P70 Million each, broken down into P40 Million for "hard projects" and P30 Million for "soft projects"; while P200
Million was given to each Senator as well as the Vice-President, with a P100 Million allocation each for "hard" and
"soft projects." Likewise, a provision on realignment of funds was included, but with the qualification that it may be
allowed only once. The same provision also allowed the Secretaries of Education, Health, Social Welfare and
Development, Interior and Local Government, Environment and Natural Resources, Energy, and Public Works and
Highways to realign PDAF Funds, with the further conditions that: (a) realignment is within the same implementing
unit and same project category as the original project, for infrastructure projects; (b) allotment released has not yet
been obligated for the original scope of work, and (c) the request for realignment is with the concurrence of the
legislator concerned.71
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 P200 Million in the 2011 GAA, had been deleted. In
addition, the 2013 PDAF Article now allowed LGUs to be identified as implementing agencies if they have the
technical capability to implement the projects.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 terms 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 energyrelated activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep Water Gas-toPower 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

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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 P3.6 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 P10 Billion over the past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of ghost projects."96 The investigation was spawned by sworn
affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN" standing for Janet Lim Napoles (Napoles) had
swindled billions of pesos from the public coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire
decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles private accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints
were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also recommended to be charged in the
complaints are some of the lawmakers chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by Napoles.98
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 P8.374 Billion in PDAF and P32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF
and VILP releases that were found to have been made nationwide during the audit period.102 Accordingly, the Co As 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 latters 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 P6.156 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 P900 Million from royalties in the operation of the
Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has gone into a dummy
NGO."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 Executives 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,

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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 Executives 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
Courts 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 Courts 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
Courts 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 Courts 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

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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 Presidents 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 Code 128 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. Youve 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

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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 systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the governments 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 CoAs 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 systems
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."137The situation similarly
holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved at
this most opportune time, are capable of repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies carries the assurance that "the courts will not intrude
into areas committed to the other branches of government."138 Essentially, the foregoing limitation is a restatement of the political
question doctrine which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a textually
demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial 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
Courts avowed intention that a resolution of these cases would not arrest or in any manner impede the endeavors of the two other

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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
Chairpersons 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 interrelation 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, Philconsas 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 Vitugs 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

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Abakada Guro Party List v. Purisima155 (Abakada) has effectively overturned Philconsas 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 funds 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,165belongs 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 others 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
departments 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

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law." Upon approval and passage of the GAA, Congress law -making role necessarily comes to an end and from there the Executives
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.1wphi1 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

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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 legislators 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 rulemaking were explained in the case of People v. Maceren200 as follows:

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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 Presidents 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 Presidents itemveto 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 Presidents 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 Presidents 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 branchs role in the budgetary process.208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the Presidents 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.

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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 Presidents 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 lineitem 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 legislators
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 P24.79 Billion only appears as a collective allocation limit since the said amount would be
further divided among individual legislators who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate appropriations are made by legislators only
after the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF appropriation would not have
been written into the General Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-enactment
legislative identification budgeting system fosters the creation of a budget within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the Presidents power of item veto. As petitioners aptly point out, the above-described system
forces the President to decide between (a) accepting the entire P24.79 Billion PDAF allocation without knowing the specific projects of
the legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all
other legislators with legitimate projects.215
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 P24.79 Billion would be treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical materials, construction of roads, flood control, etc. This setup connotes that
the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and, therefore, does not
readily indicate a discernible item which may be subject to the Presidents 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 selfperpetuation 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.

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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 peoples 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 legislators control of his
PDAF per se would allow him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a legislators 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 formers 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 Systems 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.226Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The States 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

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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 peoples 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."231Drawing strength from this pronouncement, previous legislators
justified its existence by stating that "the relatively small projects implemented under the Congressional Pork Barrel complement and
link the national development goals to the countryside and grassroots as well as to depressed areas which are overlooked by central
agencies which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy goal, which
is to enable the representatives to identify projects for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies the avowed
intention of "making equal the unequal." In 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 VicePresident who do not represent any locality, receive funding from the Congressional Pork Barrel as well. These certainly are
anathema to the Congressional Pork Barrels 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.

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"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 P150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis--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 P150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it contains post-enactment measures which effectively create a system of
intermediate appropriations. These intermediate appropriations are the actual appropriations meant for enforcement and since they are
made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-enactment
determinations made by the individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF
Article does not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual legislators to
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)

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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 delegates authority and prevent the
delegation from running riot.247To be sufficient, the standard must specify the limits of the delegates 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 Presidents 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."253In
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 Executives 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.

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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 latters 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 Courts 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 custodians 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 Executives 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
Courts 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 Courts 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.

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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 Courts 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 DBMs 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 DBMs 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 Decisions 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 Courts 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

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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 Courts bounden duty and no others.
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 postenactment 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 Courts 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 custodians reasonable regulations or any valid statutory prohibition on the same. This denial is
without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue through a separate
petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of
Congress as the same is a matter left to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable dispatch, investigate
and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the irregular,
improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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

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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 P50 Million each as "incentive" for voting in favor of the impeachment of
Chief Justice Renato C. Corona.
Responding to Sen. Estradas 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 slowmoving 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 DAPs 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 representatives 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 Courts 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

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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
Presidents 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 Presidents 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);

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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 Generals 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

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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 Commissioners 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.

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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 Kings 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
courts 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 quasijudicial 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 entitys or persons 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

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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 Executives 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 Administrations 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 DAPs 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

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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 taxpayers suit is in a different category from the plaintiff in a citizens 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, howeverthe people
are the real partiesIt 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 taxpayers 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 Courts 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
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly appreciating and justly resolving the substantive
issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the Latin word bulga (which means bag or
purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the financial program of the National
Government for a designated fiscal year, consisting of the statements of estimated receipts and expenditures for the fiscal year for
which it was intended to be effective based on the results of operations during the preceding fiscal years. The term was given a different

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meaning under Republic Act No. 992 (Revised Budget Act) by describing the budget as the delineation of the services and products, or
benefits that would accrue to the public together with the estimated unit cost of each type of service, product or benefit.52 For a forthright
definition, budget should simply be identified as the financial plan of the Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of recent economies. In reality, financing public goals and activities was an idea that
existed from the creation of the State.55 To protect the people, the territory and sovereignty of the State, its government must perform
vital functions that required public expenditures. At the beginning, enormous public expenditures were spent for war activities,
preservation of peace and order, security, administration of justice, religion, and supply of limited goods and services.56 In order to
finance those expenditures, the State raised revenues through taxes and impositions.57 Thus, budgeting became necessary to allocate
public revenues for specific government functions.58 The States budgeting mechanism eventually developed through the years with the
growing functions of its government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public financial institutions. This is because of the countrys past
as a colony successively of Spain and the United States for a long period of time. Many aspects of the countrys public fiscal
administration, including its Budget System, have been naturally patterned after the practices and experiences of the western public
financial institutions. At any rate, the Philippine Budget System is presently guided by two principal objectives that are vital to the
development of a progressive democratic government, namely: (1) to carry on all government activities under a comprehensive fiscal
plan developed, authorized and executed in accordance with the Constitution, prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and disclosure of the budgetary status of the Government in such detail so that
persons entrusted by law with the responsibility as well as the enlightened citizenry can determine the adequacy of the budget actions
taken, authorized or proposed, as well as the true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up to the passage of the Jones Law in
1916. A Budget Office was created within the Department of Finance by the Jones Law to discharge the budgeting function, and was
given the responsibility to assist in the preparation of an executive budget for submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were established, and subsequently strengthened
through the enactment of laws and executive acts.61 EO No. 25, issued by President Manuel L. Quezon on April 25, 1936, created the
Budget Commission to serve as the agency that carried out the Presidents responsibility of preparing the budget.62 CA No. 246, the first
budget law, went into effect on January 1, 1938 and established the Philippine budget process. The law also provided a line-item
budget as the framework of the Governments budgeting system,63 with emphasis on the observance of a "balanced budget" to tie up
proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA) No. 992,whereby Congress
introduced performance-budgeting to give importance to functions, projects and activities in terms of expected results.64 RA No. 992
also enhanced the role of the Budget Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms that culminated in the enactment of PD
No. 1177 that President Marcos issued on July30, 1977, and of PD No. 1405, issued on June 11, 1978. The latter decree converted the
Budget Commission into the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under EO No. 711. The OBM became the DBM
pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution;
and (4) Accountability. Each phase is distinctly separate from the others but they overlap in the implementation of the budget during the
budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the DBM. The Budget Call contains budget
parameters earlier set by the Development Budget Coordination Committee (DBCC) as well as policy guidelines and procedures to aid
government agencies in the preparation and submission of their budget proposals. The Budget Call is of two kinds, namely: (1) a
National Budget Call, which is addressed to all agencies, including state universities and colleges; and (2) a Corporate Budget Call,
which is addressed to all government-owned and -controlled corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their respective Agency Budget Proposals to
the DBM. To boost citizen participation, the current administration has tasked the various departments and agencies to partner with civil
society organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals, which proposals are then
presented before a technical panel of the DBM in scheduled budget hearings wherein the various departments and agencies are given
the opportunity to defend their budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up with
recommendations for the Executive Review Board, comprised by the DBM Secretary and the DBMs senior officials. The discussions of
the Executive Review Board cover the prioritization of programs and their corresponding support vis--vis the priority agenda of the
National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure Program (NEP)and a Budget of
Expenditures and Sources of Financing (BESF). The NEP provides the details of spending for each department and agency by
program, activity or project (PAP), and is submitted in the form of a proposed GAA. The Details of Selected Programs and Projects is
the more detailed disaggregation of key PAPs in the NEP, especially those in line with the National Governments development plan.
The Staffing Summary provides the staffing complement of each department and agency, including the number of positions and
amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the Cabinet for further refinements or
reprioritization. Once the NEP and the BESF are approved by the President and the Cabinet, the DBM prepares the budget documents
for submission to Congress. The budget documents consist of: (1) the Presidents Budget Message, through which the President
explains the policy framework and budget priorities; (2) the BESF, mandated by Section 22, Article VII of the Constitution,68 which
contains the macroeconomic assumptions, public sector context, breakdown of the expenditures and funding sources for the fiscal year
and the two previous years; and (3) the NEP.

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Public or government expenditures are generally classified into two categories, specifically: (1) capital expenditures or outlays; and (2)
current operating expenditures. Capital expenditures are the expenses whose usefulness lasts for more than one year, and which add
to the assets of the Government, including investments in the capital of government-owned or controlled corporations and their
subsidiaries.69 Current operating expenditures are the purchases of goods and services in current consumption the benefit of which
does not extend beyond the fiscal year.70 The two components of current expenditures are those for personal services (PS), and those
for maintenance and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into: (1) economic development expenditures (i.e.,
expenditures on agriculture and natural resources, transportation and communications, commerce and industry, and other economic
development efforts);71 (2) social services or social development expenditures (i.e., government outlay on education, public health and
medicare, labor and welfare and others);72(3) general government or general public services expenditures (i.e., expenditures for the
general government, legislative services, the administration of justice, and for pensions and gratuities);73 (4) national defense
expenditures (i.e., sub-divided into national security expenditures and expenditures for the maintenance of peace and order);74 and (5)
public debt.75
Public expenditures may further be classified according to the nature of funds, i.e., general fund, special fund or bond fund.76
On the other hand, public revenues complement public expenditures and cover all income or receipts of the government treasury used
to support government expenditures.77
Classical economist Adam Smith categorized public revenues based on two principal sources, stating: "The revenue which must
defraythe necessary expenses of government may be drawn either, first from some fund which peculiarly belongs to the sovereign or
commonwealth, and which is independent of the revenue of the people, or, secondly, from the revenue of the people."78 Adam Smiths
classification relied on the two aspects of the nature of the State: first, the State as a juristic person with an artificial personality, and,
second, the State as a sovereign or entity possessing supreme power. Under the first aspect, the State could hold property and engage
in trade, thereby deriving what is called its quasi private income or revenues, and which "peculiarly belonged to the sovereign." Under
the second aspect, the State could collect by imposing charges on the revenues of its subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following sources, to wit: (1) tax revenues(i.e., compulsory
contributions to finance government activities); 80 (2) capital revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof
and public domain, and gains on such sales like sale of public lands, buildings and other structures, equipment, and other properties
recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids given to the Government for its operation on specific
purposes in the form of money and/or materials, and do not require any monetary commitment on the part of the recipient);82 (4)
extraordinary income(i.e., repayment of loans and advances made by government corporations and local governments and the receipts
and shares in income of the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public borrowings(i.e., proceeds of repayable
obligations generally with interest from domestic and foreign creditors of the Government in general, including the National Government
and its political subdivisions).84
More specifically, public revenues are classified as follows:85
General Income
1.

Subsidy Income from National

Government

2.

Subsidy from Central Office

3.

Subsidy from Regional

Office/Staff Bureaus

4.

Income from Government

Services

5.

Income from Government

Business Operations

6.

Sales Revenue

7.

Rent Income

8.

Insurance Income

9.

Dividend Income

10.

Interest Income

11.

Sale of Confiscated Goods and

Properties

12.

Foreign Exchange (FOREX)

Gains

13.

Miscellaneous Operating and

Service Income

14.

Fines and Penalties-Government

Services and Business Operations

15.

Income from Grants and

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Donations

c.2. Budget Legislation86

The Budget Legislation Phase covers the period commencing from the time Congress receives the Presidents Budget, which is
inclusive of the NEPand the BESF, up to the Presidents approval of the GAA. This phase is also known as the Budget Authorization
Phase, and involves the significant participation of the Legislative through its deliberations.
Initially, the Presidents Budget is assigned to the House of Representatives Appropriations Committee on First Reading. The
Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to examine the PAPs of the
departments and agencies. Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of Representatives Appropriations Committee and Sub-Committees in
plenary session. As with other laws, the GAB is approved on Third Reading before the House of Representatives version is transmitted
to the Senate.88
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite proceedings, the Senate may conduct its
committee hearings simultaneously with the House of Representatives deliberations. The Senates Finance Committee and its SubCommittees may submit the proposed amendments to the GAB to the plenary of the Senate only after the House of Representatives
has formally transmitted its version to the Senate. The Senate version of the GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference Committee for the
purpose of discussing and harmonizing the conflicting provisions of their versions of the GAB. The "harmonized" version of the GAB is
next presented to the President for approval.90 The President reviews the GAB, and prepares the Veto Message where budget items
are subjected to direct veto,91 or are identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA for the preceding
fiscal year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of the budget. The Budget Execution Phase is primarily
the function of the DBM, which is tasked to perform the following procedures, namely: (1) to issue the programs and guidelines for the
release of funds; (2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4) to issue disbursement
authorities.
The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this, the various departments and agencies
are required to submit Budget Execution Documents(BED) to outline their plans and performance targets by laying down the physical
and financial plan, the monthly cash program, the estimate of monthly income, and the list of obligations that are not yet due and
demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release Program (CRP).The ARP sets a limit for
allotments issued in general and to a specific agency. The CRP fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments are lesser in scope than
appropriations, in that the latter embrace the general legislative authority to spend. Allotments may be released in two forms through
a comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur obligations96 on behalf of the Government in order to
implement their PAPs. Obligations may be incurred in various ways, like hiring of personnel, entering into contracts for the supply of
goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority so that cash may be allocated in
payment of the obligations. A cash or disbursement authority that is periodically issued is referred to as a Notice of Cash Allocation
(NCA),97 which issuance is based upon an agencys submission of its Monthly Cash Program and other required documents. The NCA
specifies the maximum amount of cash that can be withdrawn from a government servicing bank for the period indicated. Apart from the
NCA, the DBM may issue a Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash Disbursement
Ceiling(CDC) for departments with overseas operations to allow the use of income collected by their foreign posts for their operating
requirements.
Actual disbursement or spending of government funds terminates the Budget Execution Phase and is usually accomplished through the
Modified Disbursement Scheme under which disbursements chargeable against the National Treasury are coursed through the
government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that the government funds have been effectively and
efficiently utilized to achieve the States socio-economic goals. It also allows the DBM to assess the performance of agencies during the
fiscal year for the purpose of implementing reforms and establishing new policies.
An agencys accountability may be examined and evaluated through (1) performance targets and outcomes; (2) budget accountability
reports; (3) review of agency performance; and (4) audit conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth

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Policy is always a part of every budget and fiscal decision of any Administration.99 The national budget the Executive prepares and
presents to Congress represents the Administrations "blueprint for public policy" and reflects the Governments goals and
strategies.100 As such, the national budget becomes a tangible representation of the programs of the Government in monetary terms,
specifying therein the PAPs and services for which specific amounts of public funds are proposed and allocated.101 Embodied in every
national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and transparency in government spending a
significant focus of his Administration. Yet, although such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic
product (GDP) from January to July of 2011, it also unfortunately decelerated government project implementation and payment
schedules.103 The World Bank observed that the Philippines economic growth could be reduced, and potential growth could be
weakened should the Government continue with its underspending and fail to address the large deficiencies in infrastructure.104 The
economic situation prevailing in the middle of 2011 thus paved the way for the development and implementation of the DAP as a
stimulus package intended to fast-track public spending and to push economic growth by investing on high-impact budgetary PAPs to
be funded from the "savings" generated during the year as well as from unprogrammed funds.105 In that respect, the DAP was the
product of "plain executive policy-making" to stimulate the economy by way of accelerated spending.106 The Administration would
thereby accelerate government spending by: (1) streamlining the implementation process through the clustering of infrastructure
projects of the Department of Public Works and Highways (DPWH) and the Department of Education (DepEd),and (2) front loading
PPP-related projects107 due for implementation in the following year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial implementation of the DAP, revealed that the DAP was partially
successful. The disbursements under the DAP contributed 1.3 percentage points to GDP growth by the fourth quarter of 2011.110 The
continued implementation of the DAP strengthened growth by 11.8% year on year while infrastructure spending rebounded from a 29%
contraction to a 34% growth as of September 2013.111
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the Government could use to direct the
economies towards growth and development.112 The Government, by spending on public infrastructure, would signify its commitment of
ensuring profitability for prospective investors.113 The PAPs funded under the DAP were chosen for this reason based on their: (1)
multiplier impact on the economy and infrastructure development; (2) beneficial effect on the poor; and (3) translation into
disbursements.114
b. History of the implementation of
the DAP, and sources of funds
under the DAP
How the Administrations economic managers conceptualized and developed the DAP, and finally presented it to the President remains
unknown because the relevant documents appear to be scarce.
The earliest available document relating to the genesis of the DAP was the memorandum of October 12,2011 from Sec. Abad seeking
the approval of the President to implement the proposed DAP. The memorandum, which contained a list of the funding sources
for P72.11 billion and of the proposed priority projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program totaling P72.11 billion. We are already
working with all the agencies concerned for the immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program

Fund Sources

Amount
(In million
Php)

FY 2011
Unreleased
Personal
Services (PS)
Appropriations

30,000

FY 2011
Unreleased
Appropriations

482

FY 2010
Unprogrammed

12,336

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Description

Unreleased Personnel
Services (PS)
appropriations which
will lapse at the end of
FY 2011 but may be
pooled as savings and
realigned for priority
programs that require
immediate funding

Action
Requested

Declare as
savings and
approve/
authorize its use
for the 2011
Disbursement
Acceleration
Program

Unreleased
appropriations (slow
moving projects and
programs for
discontinuance)

Supported by the GFI

Approve and
authorize its use

Page 32 of 204

Fund

Dividends

for the 2011

Disbursement
Acceleration
Program

FY 2010
Carryover
Appropriation

21,544

Unreleased
appropriations (slow
moving projects and
programs for
discontinuance) and
savings from Zero-based Budgeting
Initiative

With prior
approval from
the President in
November 2010
to declare as
savings and with
authority to use
for priority
projects

FY 2011 Budget
items for
realignment

7,748

FY 2011 Agency
Budget items that can
be realigned within the
agency to fund new fast
disbursing projects
DPWH-3.981 Billion
DA 2.497 Billion
DOT 1.000 Billion
DepEd 270 Million

For information

TOTAL

72.110

B. Projects in the Disbursement Acceleration Program

(Descriptions of projects attached as Annex A)
GOCCs and GFIs
Agency/Project
(SARO and NCA Release)
1. LRTA: Rehabilitation of LRT 1 and 2
2. NHA:
a. Resettlement of North Triangle residents to
Camarin A7
b. Housing for BFP/BJMP
c. On-site development for families living
along dangerous
d. Relocation sites for informal settlers
along Iloilo River and its tributaries

Allotment
(in Million Php)
1,868
11,050
450
500
10,000
100

3. PHIL. HEART CENTER: Upgrading of

ageing physical plant and medical equipment

357

4. CREDIT INFO CORP: Establishment of

centralized credit information system

75

5. PIDS: purchase of land to relocate the PIDS

office and building construction

100

6. HGC: Equity infusion for credit insurance

and mortgage guaranty operations of HGC

400

7. PHIC: Obligations incurred (premium

subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] Dec
2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
pay the full amount.

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1,496

Page 33 of 204

8. Philpost: Purchase of foreclosed property.

Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege

644

9. BSP: First equity infusion out of Php 40B

capitalization under the BSP Law

10,000

10. PCMC: Capital and Equipment Renovation

280

11. LCOP:
a. Pediatric Pulmonary Program
b. Bio-regenerative Technology Program
(Stem-Cell Research subject to legal
review and presentation)

105
35
70

12. TIDCORP: NG Equity infusion

570

TOTAL

26,945

NGAs/LGUs
Agency/Project

Allotment
(SARO)
(In Million
Php)

Cash
Requirement
(NCA)

13. DOF-BIR: NPSTAR

centralization of data
processing and others (To be
synchronized with GFMIS
activities)

758

758

14. COA: IT infrastructure

program and hiring of
additional litigational experts

144

144

15. DND-PAF: On Base Housing

Facilities and Communication
Equipment

30

30

2,959

2,223

1,629

1,629

919

183

411

411

1,293

1,293

1,293

132
5,432

625

625

16. DA:
a. Irrigation, FMRs and
Integrated Community Based Multi-Species
Hatchery and Aquasilvi
Farming
b. Mindanao Rural
Development Project
c. NIA Agno River Integrated
Irrigation Project
17. DAR:
a. Agrarian Reform
Communities Project 2
b. Landowners Compensation
18. DBM: Conduct of National
Survey of
Farmers/Fisherfolks/Ips

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19. DOJ: Operating requirements

of 50 investigation agents and
15 state attorneys

11

11

20. DOT: Preservation of the Cine

Corregidor Complex

25

25

1,819

1,819

425

425

275

275

190

190

2,800

2,800

24. OEO-FDCP: Establishment of

the National Film Archive and
local cinematheques, and other
local activities

20

20

25. DPWH: Various infrastructure

projects

5,500

5,500

26. DepEd/ERDT/DOST: Thin

Client Cloud Computing
Project

270

270

27. DOH: Hiring of nurses and

midwives

294

294

1,100

1,100

29. DILG: Performance Challenge

Fund (People Empowered
Community Driven
Development with DSWD and
NAPC)

250

50

30. ARMM: Comprehensive Peace

and Development Intervention

8,592

8,592

31. DOTC-MRT: Purchase of

additional MRT cars

4,500

32. LGU Support Fund

6,500

6,500

33. Various Other Local Projects

6,500

6,500

21. OPAPP: Activities for Peace

Process (PAMANA- Project
details: budget breakdown,
implementation plan, and
conditions on fund release
attached as Annex B)
22. DOST
a. Establishment of National
Meterological and Climate
Center
b. Enhancement of Doppler
Radar Network for National
Weather Watch, Accurate
Forecasting and Flood Early
Warning
23. DOF-BOC: To settle the
principal obligations with
PDIC consistent with the
agreement with the CISS and
SGS

28. TESDA: Training Program in

partnership with BPO industry
and other sectors

34. Development Assistance to the

Province of Quezon

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Page 35 of 204

TOTAL

750

750

45,165

44,000

C. Summary
Fund Sources
Identified for
Approval
(In Million
Php)

Allotments
for Release

Cash
Requirements for
Release in FY
2011

72,110

70,895

GOCCs

26,895

26,895

NGAs/LGUs

45,165

44,000

Total

72,110

For His Excellencys Consideration

(Sgd.) FLORENCIO B. ABAD
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum for the President dated December 12, 2011116 requesting
omnibus authority to consolidate the savings and unutilized balances for fiscal year 2011. Pertinent portions of the memorandum of
December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate savings/unutilized balances in FY 2011 corresponding to
completed or discontinued projects which may be pooled to fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even if their implementation carries over to 2012 without
necessarily impacting on our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the agencies operations, particularly on the
implementation of their projects/activities, including expenses incurred in undertaking the same, have identified
savings out of the 2011 General Appropriations Act. Said savings correspond to completed or discontinued projects
under certain departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated during preparation of the budget;
1.2 to augment additional requirements of on-going priority projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF, Calamity Fund, Contingent
Fund
1.4 to cover for the modifications of the original allotment class allocation as a result of on-going priority
projects and implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus authority to pool savings/unutilized
balances in FY 2010 last November 25, 2010.

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4.0 It is understood that in the utilization of the pooled savings, the DBM shall secure the corresponding
approval/confirmation of the President. Furthermore, it is assured that the proposed realignments shall be within the
authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be sourced from the said pooled
appropriations in FY 2010 that will expire on December 31, 2011 and appropriations in FY 2011 that may be declared
as savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be spent for the projects that we
have identified to be immediate actual disbursements considering that this same fund source will expire on
December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded from the FY 2011 Unreleased
Appropriations, most of these are the same projects for which the DBM is directed by the Office of the
President, thru the Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that have been chosen given their multiplier
impact on economy and infrastructure development, their beneficial effect on the poor, and their translation into
disbursements. Please note that we have classified the list of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENTS APPROVAL
8.0 Foregoing considered, may we respectfully request for the Presidents approval for the following:
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized balances and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellencys consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund proposed projects were contained in various other memoranda
from Sec. Abad dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119May 20, 2013,120 and September 25, 2013.121 The
President apparently approved all the requests, withholding approval only of the proposed projects contained in the June 25, 2012
memorandum, as borne out by his marginal note therein to the effect that the proposed projects should still be "subject to further
discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541 (Adoption of Operational Efficiency Measure
Withdrawal of Agencies Unobligated Allotments as of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the National Government, Budget and
Planning Officers; Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987), periodically reviews and evaluates the
departments/agencies efficiency and effectiveness in utilizing budgeted funds for the delivery of services and production of goods,
consistent with the government priorities.
In the event that a measure is necessary to further improve the operational efficiency of the government, the President is authorized to
suspend or stop further use of funds allotted for any agency or expenditure authorized in the General Appropriations Act. Withdrawal
and pooling of unutilized allotment releases can be effected by DBM based on authority of the President, as mandated under Sections
38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In order to accelerate spending and sustain
the fiscal targets during the year, expenditure measures have to be implemented to optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and disbursements per initial review of their 2012
performance. To enhance agencies performance, the DBM conducts continuous consultation meetings and/or send call-up letters,
requesting them to identify slow-moving programs/projects and the factors/issues affecting their performance (both pertaining to internal
systems and those which are outside the agencies spheres of control). Also, they are asked to formulate strategies and improvement
plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low obligation levels as of end of first semester,
thus resulting to substantial unobligated allotments.

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In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of unobligated allotments of agencies with
low levels of obligations as of June 30, 2012, both for continuing and current allotments. This measure will allow the maximum
utilization of available allotments to fund and undertake other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated allotments of agencies as of June 30,
2012 to fund priority and/or fast-moving programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said unobligated allotments;
and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 of all national
government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No.10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and
projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies
concerned based on their updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified programs, projects and activities of the
departments/agencies reflected in the DBM list shown as Annex A or specific programs and projects as may be
identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy under the Philippine
Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding allocation scheme i.e., distribution of
a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to realignment conditions per General
Provisions of the GAA:
Confidential and Intelligence Fund;
Savings from Traveling, Communication, Transportation and Delivery, Repair and Maintenance,
Supplies and Materials and Utility which shall be used for the grant of Collective Negotiation
Agreement incentive benefit;
Savings from mandatory expenditures which can be realigned only in the last quarter after taking
into consideration the agencys full year requirements, i.e., Petroleum, Oil and Lubricants, Water,
Illumination, Power Services, Telephone, other Communication Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International Commitments Fund, PAMANA,
Priority Development Assistance Fund, Calamity Fund, Budgetary Support to GOCCs and Allocation to
LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special Accounts in the General
Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake procurement activities notwithstanding the
implementation of the policy of withdrawal of unobligated allotments until the end of the third quarter, FY 2012. Even
without the allotments, the agency shall proceed in undertaking the procurement processes (i.e., procurement
planning up to the conduct of bidding but short of awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and
01-2009 and DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;

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Statement of Allotments, Obligations and Balances (SAOB);

Financial Report of Operations (FRO); and
Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agencys latest report
available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the
agencys obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March
31 SAOB or FRO reflects actual obligations of P 800M then the June 30 obligation level shall approximate to P1,600
M (i.e., P800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which remained unobligated as of June 30,
2012 shall be immediately considered for withdrawal. This policy is based on the following considerations:
5.4.1 The departments/agencies approved priority programs and projects are assumed to be
implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slowerthan-programmed implementation capacity or agency tends to implement projects within a two-year
timeframe.
5.5. Consistent with the Presidents directive, the DBM shall, based on evaluation of the reports cited above and
results of consultations with the departments/agencies, withdraw the unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the magnitude of withdrawn allotments. The report
shall highlight the agencies which failed to submit the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from which the
allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority programs and
projects not considered in the 2012 budget but expected to be started or implemented during the current
year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to DBM a Special Budget Request (SBR),
supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement processes i.e., Proof of Posting and/or
Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories shall be until the end of the third quarter
i.e., September 30, 2012. After said cut-off date, the withdrawn allotments shall be pooled and form part of the overall
savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority programs and projects as cited under item
5.7.3 of this Circular, shall be subject to approval of the President. Based on the approval of the President, DBM shall
issue the SARO to cover the approved priority expenditures subject to submission by the agency/OU concerned of
the SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the withdrawn allotments (both 2011 and 2012 unobligated
allotments) shall be within the approved Expenditure Program level of the national government for the current year.
The SAROs to be issued shall properly disclose the appropriation source of the release to determine the extent of
allotment validity, as follows:
For charges under R.A. 10147 allotments shall be valid up to December 31, 2012; and
For charges under R.A. 10155 allotments shall be valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and other reportorial requirements is reiterated for
monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and departments as of June 30, 2012 that were
charged against the continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal
through the issuance of negative SAROs, but such allotments could be either: (1) reissued for the original PAPs of the concerned
agencies from which they were withdrawn; or (2) realigned to cover additional funding for other existing PAPs of the concerned
agencies; or (3) used to augment existing PAPs of any agency and to fund priority PAPs not considered in the 2012 budget but
expected to be started or implemented in 2012. Financing the other priority PAPs was made subject to the approval of the President.

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Note here that NBC No. 541 used terminologies like "realignment" and "augmentation" in the application of the withdrawn unobligated
allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that is (1) by declaring "savings" coming
from the various departments and agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations;
(2) releasing unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment existing PAPs or to support
other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to establish the DAP, or to authorize the
disbursement and release of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the
appropriations funded under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and COURAGE,
the DAP, being actually an appropriation that set aside public funds for public use, should require an enabling law for its validity. VACC
maintains that the DAP, because it involved huge allocations that were separate and distinct from the GAAs, circumvented and
duplicated the GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the DAP violated the mandate of Section
29(1), Article VI of the 1987 Constitution that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation
made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP because of its being neither a
fund nor an appropriation, but a program or an administrative system of prioritizing spending; and that the adoption of the DAP was by
virtue of the authority of the President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSGs position.
The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the
DAPs adoption and implementation being a function pertaining to the Executive as the main actor during the Budget Execution Stage
under its constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to
implement the DAP. Congress could appropriate but would have nothing more to do during the Budget Execution Stage. Indeed,
appropriation was the act by which Congress "designates a particular fund, or sets apart a specified portion of the public revenue or of
the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or
expense."124 As pointed out in Gonzales v. Raquiza:125 "In a strict sense, appropriation has been defined as nothing more than the
legislative authorization prescribed by the Constitution that money may be paid out of the Treasury, while appropriation made by law
refers to the act of the legislature setting apart or assigning to a particular use a certain sum to be used in the payment of debt or dues
from the State to its creditors."126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of
the budget to adapt the budget to changes in the countrys economic situation.127 He could adopt a plan like the DAP for the purpose.
He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the
identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been
already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power
vested in Congress under Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the Executive to ramp up spending to accelerate
economic growth, the challenges posed by the petitioners constrain us to dissect the mechanics of the actual execution of the DAP. The
management and utilization of the public wealth inevitably demands a most careful scrutiny of whether the Executives implementation
of the DAP was consistent with the Constitution, the relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that may come into play once the budget
reaches its execution stage. Executive discretion is necessary at that stage to achieve a sound fiscal administration and assure
effective budget implementation. The heads of offices, particularly the President, require flexibility in their operations under performance
budgeting to enable them to make whatever adjustments are needed to meet established work goals under changing conditions.128 In
particular, the power to transfer funds can give the President the flexibility to meet unforeseen events that may otherwise impede the
efficient implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the GAAs,129particularly when the
funds are grouped to form lump sum accounts.130 It is assumed that the agencies of the Government enjoy more flexibility when the
GAAs provide broader appropriation items.131 This flexibility comes in the form of policies that the Executive may adopt during the
budget execution phase. The DAP as a strategy to improve the countrys economic position was one policy that the President
decided to carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In Presidential Spending Power,132 Prof.
Louis Fisher, an American constitutional scholar whose specialties have included budget policy, has justified extending discretionary
authority to the Executive thusly:

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[T]he impulse to deny discretionary authority altogether should be resisted. There are many number of reasons why obligations and
outlays by administrators may have to differ from appropriations by legislators. Appropriations are made many months, and sometimes
years, in advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly technical and
constantly undergoing change. New circumstances will develop to make obsolete and mistaken the decisions reached by Congress at
the appropriation stage. It is not practicable for Congress to adjust to each new development by passing separate supplemental
appropriation bills. Were Congress to control expenditures by confining administrators to narrow statutory details, it would perhaps
protect its power of the purse but it would not protect the purse itself. The realities and complexities of public policy require executive
discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion for administrators. They need to exercise judgment
and take responsibility for their actions, but those actions ought to be directed toward executing congressional, not administrative policy.
Let there be discretion, but channel it and use it to satisfy the programs and priorities established by Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution itself
ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the three main branches
of the Government. The Court has recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the
discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the
express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon
which the entire fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the Executive has not been the mere offshoot
of established usage, but has emanated from law itself. It has existed since the time of the American Governors-General. 134 Act No.
1902 (An Act authorizing the Governor-General to direct any unexpended balances of appropriations be returned to the general fund of
the Insular Treasury and to transfer from the general fund moneys which have been returned thereto), passed on May 18, 1909 by the
First Philippine Legislature,135was the first enabling law that granted statutory authority to the President to transfer funds. The authority
was without any limitation, for the Act explicitly empowered the Governor-General to transfer any unexpended balance of appropriations
for any bureau or office to another, and to spend such balance as if it had originally been appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be transferred, thereby limiting the power to
transfer funds. Only 10% of the amounts appropriated for contingent or miscellaneous expenses could be transferred to a bureau or
office, and the transferred funds were to be used to cover deficiencies in the appropriations also for miscellaneous expenses of said
bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous expenses to any other item of a certain
bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be governed by the GAAs despite the
enactment of the Constitution in 1935. It is notable that the 1935 Constitution did not include a provision on the power to transfer funds.
At any rate, a shift in the extent of the Presidents power to transfer funds was again experienced during this era, with the President
being given more flexibility in implementing the budget. The GAAs provided that the power to transfer all or portions of the
appropriations in the Executive Department could be made in the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the Presidents seemingly unbounded discretion in transferring
funds.137 Its Committee on the Budget and Appropriation proposed to prohibit the transfer of funds among the separate branches of the
Government and the independent constitutional bodies, but to allow instead their respective heads to augment items of appropriations
from savings in their respective budgets under certain limitations.138 The clear intention of the Convention was to further restrict, not to
liberalize, the power to transfer appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered setting
stringent limitations on the power to augment, and suggested that the augmentation of an item of appropriation could be made "by not
more than ten percent if the original item of appropriation to be augmented does not exceed one million pesos, or by not more than five
percent if the original item of appropriation to be augmented exceeds one million pesos."140 But two members of the Committee
objected to the P1,000,000.00 threshold, saying that the amount was arbitrary and might not be reasonable in the future. The
Committee agreed to eliminate theP1,000,000.00 threshold, and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which adopted the following final version
under Section 16, Article VIII of the 1973 Constitution, to wit:
(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 Commissions may by law be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to another, unless Congress enacted a
law authorizing the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of the
Constitutional omissions to transfer funds for the purpose of augmenting any item from savings in another item in the GAA of their
respective offices. The leeway was limited to augmentation only, and was further constricted by the condition that the funds to be
transferred should come from savings from another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. 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.
The President shall, likewise, have the authority to augment any appropriation of the Executive Department in the General
Appropriations Act, from savings in the appropriations of another department, bureau, office or agency within the Executive Branch,
pursuant to the provisions of Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for contravening Section 16(5)of the 1973
Constitution, ruling:

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Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. 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.143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution, whose Section 25(5)
of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their
respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission included Section 25(5), supra, to keep a tight rein on the
exercise of the power to transfer funds appropriated by Congress by the President and the other high officials of the Government
named therein. The Court stated in Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that the budgetary amount contained in the
appropriations bill is the extent Congress will determine as sufficient for the budgetary allocation for the proponent agency. The only
exception is found in Section 25 (5), Article VI of the Constitution, by which the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions are authorized to
transfer appropriations to augmentany item in the GAA for their respective offices from the savings in other items of their respective
appropriations. The plain language of the constitutional restriction leaves no room for the petitioners posture, which we should now
dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the Constitution limiting the
authority to transfer savings only to augment another item in the GAA is strictly but reasonably construed as exclusive. As the Court has
expounded in Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably
construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general
provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority
can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all
others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with
reason and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is
otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the
intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt
will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to
require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a
restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the Presidents discretion over the appropriations
during the Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the following
requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective
offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective offices; and (3) The purpose
of the transfer is to augment an item in the general appropriations law for their respective offices.
b.1. First RequisiteGAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to be operative. That
law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should expressly authorize the transfer of
funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was Section 59, as
follows:

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Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are
hereby authorized to augment any item in this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are
hereby authorized to augment any item in this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of savings under the
DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to the Constitution
for not carrying the phrase "for their respective offices" contained in Section 25(5), supra. The impact of the phrase "for their respective
offices" was to authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer was to an item of
appropriation within the Executive). The provisions carried a different phrase ("to augment any item in this Act"), and the effect was that
the 2011 and 2012 GAAs thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the item
belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution. At the very least,
the aforequoted provisions cannot be used to claim authority to transfer appropriations from the Executive to another branch, or to a
constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are
hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any
item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed, there still remained two other requisites
to be met, namely: that the source of funds to be transferred were savings from appropriations within the respective offices; and that the
transfer must be for the purpose of augmenting an item of appropriation within the respective offices.
b.2. Second Requisite There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP the unreleased appropriations and withdrawn unobligated allotments were
not actual savings within the context of Section 25(5), supra, and the relevant provisions of the GAAs. Belgica argues that "savings"
should be understood to refer to the excess money after the items that needed to be funded have been funded, or those that needed to
be paid have been paid pursuant to the budget.146 The petitioners posit that there could be savings only when the PAPs for which the
funds had been appropriated were actually implemented and completed, or finally discontinued or abandoned. They insist that savings
could not be realized with certainty in the middle of the fiscal year; and that the funds for "slow-moving" PAPs could not be considered
as savings because such PAPs had not actually been abandoned or discontinued yet.147 They stress that NBC No. 541, by allowing the
withdrawn funds to be reissued to the "original program or project from which it was withdrawn," conceded that the PAPs from which the
supposed savings were taken had not been completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference between the appropriation authorized by
Congress and the actual amount allotted for the appropriation; that the definition of "savings" in the GAAs set only the parameters for
determining when savings occurred; that it was still the President (as well as the other officers vested by the Constitution with the
authority to augment) who ultimately determined when savings actually existed because savings could be determined only during the
stage of budget execution; that the President must be given a wide discretion to accomplish his tasks; and that the withdrawn
unobligated allotments were savings inasmuch as they were clearly "portions or balances of any programmed appropriationfree from
any obligation or encumbrances which are (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress wields the power
of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts of money to be spent for each PAP.
The second principle is that the Executive, as the department of the Government tasked to enforce the laws, is expected to faithfully
execute the GAA and to spend the budget in accordance with the provisions of the GAA.149 The Executive is expected to faithfully
implement the PAPs for which Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to
deficiencies for which augmentation is authorized, subject to the conditions provided by law. The third principle is that in making the
Presidents power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. In so doing,
Congress diminishes its own power of the purse, for it delegates a fraction of its power to the Executive. But Congress does not thereby
allow the Executive to override its authority over the purse as to let the Executive exceed its delegated authority. And the fourth principle
is that savings should be actual. "Actual" denotes something that is real or substantial, or something that exists presently in fact, as
opposed to something that is merely theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment. It is then
indubitable that the power to augment was to be used only when the purpose for which the funds had been allocated were already
satisfied, or the need for such funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents
the Executive from unduly transgressing Congress power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are:
(i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation
is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and
leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in

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improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and
services approved in this Act at a lesser cost.
The three instances listed in the GAAs aforequoted definition were a sure indication that savings could be generated only upon the
purpose of the appropriation being fulfilled, or upon the need for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs conveyed the notion that the
appropriation was at that stage when the appropriation was already obligated and the appropriation was already released. This
interpretation was reinforced by the enumeration of the three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise, considering that only when the appropriation had reached the
agency level could it be determined whether (a) the PAP for which the appropriation had been authorized was completed, finally
discontinued, or abandoned; or (b) there were vacant positions and leaves of absence without pay; or (c) the required or planned
targets, programs and services were realized at a lesser cost because of the implementation of measures resulting in improved
systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased appropriations such as unreleased
Personnel Services appropriations which will lapse at the end of the year, unreleased appropriations of slow moving projects and
discontinued projects per Zero-Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of unreleased or unalloted appropriations as
savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the status of the items as unalloted or
unreleased. They have not yet ripened into categories of items from which savings can be generated. Appropriations have been
considered "released" if there has already been an allotment or authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not needing clearance), or a SARO (for those needing clearance), and
consequently an NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased, for instance, because of noncompliance
with documentary requirements (like the Special Budget Request), or simply because of the unavailability of funds. But the
appropriations do not actually reach the agencies to which they were allocated under the GAAs, and have remained with the DBM
technically speaking. Ergo, unreleased appropriations refer to appropriations with allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the statutory definition of savings, would seriously undercut
the congressional power of the purse, because such appropriations had not even reached and been used by the agency concerned vis-vis the PAPs for which Congress had allocated them. However, if an agency has unfilled positions in its plantilla and did not receive
an allotment and NCA for such vacancies, appropriations for such positions, although unreleased, may already constitute savings for
that agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the GAA, that is, as
"portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance." But the first part of the
definition was further qualified by the three enumerated instances of when savings would be realized. As such, unobligated allotments
could not be indiscriminately declared as savings without first determining whether any of the three instances existed. This signified that
the DBMs withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE appropriations are deemed divided into twelve
monthly allocations within the fiscal year; hence, savings could be generated monthly from the excess or unused MOOE appropriations
other than the Mandatory Expenditures and Expenditures for Business-type Activities because of the physical impossibility to obligate
and spend such funds as MOOE for a period that already lapsed. Following this observation, MOOE for future months are not savings
and cannot be transferred.
The DBMs Memorandum for the President dated June 25, 2012 (which became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies operations, particularly on the
implementation of their projects/activities, including expenses incurred in undertaking the same, have been continuously
calling the attention of all National Government agencies (NGAs) with low levels of obligations as of end of the first quarter to
speedup the implementation of their programs and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the departments disposal, the level of financial performance of
some departments registered below program, with the targeted obligations/disbursements for the first semester still not being
met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as of June 30, 2012, both for continuing
and current allotments shall be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the allotments pertained
to slow-moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for the withdrawal of unobligated
allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 ofall national government
agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation
(R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects,
as well as capitalized MOOE; and

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3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies concerned
based on their undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of unobligated allotments of agencies with low
levels of obligations"151 "to fund priority and/or fast-moving programs/projects."152 But the fact that the withdrawn allotments could be
"[r]eissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were
withdrawn"153 supported the conclusion that the PAPs had not yet been finally discontinued or abandoned. Thus, the purpose for which
the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as
savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the 2011 GAA that had
remained unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies approved priority programs and projects are assumed to be implementation-ready and
doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slower-than-programmed
implementation capacity or agency tends to implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for continuing and current
appropriations as of June 30, 2012, disregarded the 2-year period of availability of the appropriations for MOOE and capital outlay
extended under Section 65, General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. Appropriations for MOOE and capital outlays authorized in this Act shall be available for
release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to
one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That appropriations for MOOE and capital
outlays under R.A. No. 9970 shall be made available up to the end of FY 2011: PROVIDED, FURTHER, That a report on these
releases and obligations shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. Appropriations for MOOE and capital outlays authorized in this Act shall be available for
release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to
one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That a report on these releases and
obligations shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations, either in printed form
or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances shortened the period of availability of
the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations. All appropriations authorized in this Act shall be available for release and obligation for the
purposes specified, and under the same special provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on Finance and House Committee on Appropriations, either
in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority to consolidate savings and
unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register below program, even with the availability of funds at
their disposal, the targeted obligations/disbursements for each quarter will not be met. It is important to note that these funds
will lapse at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end of every quarter, both for continuing
and current allotments shall be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year, was further shortened to only a quarter
of a year under the DBMs memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a larger fund available for discretionary
spending. They aver that the respondents, by withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived
funding for PAPs with existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being withdrawn upon the instance of the
implementing agencies based on their own assessment that they could not obligate those allotments pursuant to the Presidents
directive for them to spend their appropriations as quickly as they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents insistence, the withdrawals were upon the initiative of the DBM itself. The text of NBC No. 541 bears this
out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all departments/agencies/operating
units (OUs) shall submit to DBM not later than July 30, 2012, the following budget accountability reports as of June 30, 2012;
Statement of Allotments, Obligation and Balances (SAOB);
Financial Report of Operations (FRO); and
Physical Report of Operations.

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5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agencys latest report available shall be used
by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agencys obligation level as of June 30 to derive
its unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P 800M then the
June 30 obligation level shall approximate toP1,600 M (i.e., P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated allotments and the pooling of unreleased
appropriations; and that the unbridled withdrawal of unobligated allotments and the retention of appropriated funds were akin to the
impoundment of appropriations that could be allowed only in case of "unmanageable national government budget deficit" under the
GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013 prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as a last-ditch effort of the Executive
to push agencies into actually spending their appropriations; that such policy did not amount to an impoundment scheme, because
impoundment referred to the decision of the Executive to refuse to spend funds for political or ideological reasons; and that the
withdrawal of allotments under NBC No. 541 was made pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by
which the President was granted the authority to suspend or otherwise stop further expenditure of funds allotted to any agency
whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling of unreleased
appropriations were invalid for being bereft of legal support. Nonetheless, such withdrawal of unobligated allotments and the retention
of appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a refusal by the President, for whatever reason,
to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type." Impoundment under the
GAA is understood to mean the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of
unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded
through retention or deduction, unless in accordance with the rules and regulations to be issued by the DBM: PROVIDED, That all the
funds appropriated for the purposes, programs, projects and activities authorized under this Act, except those covered under the
Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of appropriations authorized in this Act shall be
effected only in cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to mean that (i) the actual national
government budget deficit has exceeded the quarterly budget deficit targets consistent with the full-year target deficit as indicated in the
FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress pursuant to Section 22, Article VII of the
Constitution, or (ii) there are clear economic indications of an impending occurrence of such condition, as determined by the
Development Budget Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it entailed only the transfer
of funds, not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from appropriations provided in this Act shall be
transmitted intact or in full to the office or agency concerned. No retention or deduction as reserves or overhead shall be made, except
as authorized by law, or upon direction of the President of the Philippines. The COA shall ensure compliance with this provision to the
extent that sub-allotments by agencies to their subordinate offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release from the DBM, which was a different
matter altogether. The Court should not expand the meaning of the provision by applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated
allotments. But the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated
allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the General Appropriations Act and
whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to
suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General
Appropriations Act, except for personal services appropriations used for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead transferred the
funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained unexpended at the end of the fiscal year were
to be reverted to the General Fund.1wphi1 This was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.- Unexpended balances of appropriations
authorized in the General Appropriation Act shall revert to the unappropriated surplus of the General Fund at the end of the fiscal year
and shall not thereafter be available for expenditure except by subsequent legislative enactment: Provided, that appropriations for
capital outlays shall remain valid until fully spent or reverted: provided, further, that continuing appropriations for current operating
expenditures may be specifically recommended and approved as such in support of projects whose effective implementation calls for
multi-year expenditure commitments: provided, finally, that the President may authorize the use of savings realized by an agency during
given year to meet non-recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget preparation process and the preparation
process and the President may approve upon recommendation of the Secretary, the reversion of funds no longer needed in connection
with the activities funded by said continuing appropriations.

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The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments as savings prior
to the end of the fiscal year.
b.3. Third Requisite No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the general
appropriations law for the respective offices." The term "augment" means to enlarge or increase in size, amount, or degree. 160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented must
be deficient, to wit:
x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation,
or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or
project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings. Note
is taken of the fact that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are
hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any
item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in 2012.162 Sec. Abad has reported that 9% of the total DAP
releases were applied to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the following PAPs that had not been covered with appropriations
in the respective GAAs, namely:
(i) P1.5 billion for the Cordillera Peoples Liberation Army;
(ii) P1.8 billion for the Moro National Liberation Front;
(iii) P700 million for assistance to Quezon Province;164
(iv) P50 million to P100 (million) each to certain senators;165
(v) P10 billion for the relocation of families living along dangerous zones under the National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;
(vii) P5.4 billion landowners compensation under the Department of Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under the Department of Tourism and the Department of Public
Works and Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had appropriation covers, and could properly
be accounted for because the funds were released following and pursuant to the standard practices adopted by the DBM.167 In support
of its argument, the OSG has submitted seven evidence packets containing memoranda, SAROs, and other pertinent documents
relative to the implementation and fund transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence packets, we conclude that the "savings" pooled under the DAP
were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk, Exposure, Assessment and Mitigation
(DREAM) project under the Department of Science and Technology (DOST) covered the amount ofP1.6 Billion,169 broken down as
follows:
APPROPRIATION
CODE

PARTICULARS

A.03.a.01.a

Generation of new knowledge and technologies and

research capability building in priority areas identified as
strategic to National Development
Personnel Services
Maintenance and Other Operating Expenses
Capital Outlays

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AMOUNT
AUTHORIZED

P 43,504,024
1,164,517,589

Page 47 of 204

391,978,387
P 1,600,000,000
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated onlyP537,910,000 for MOOE, but
nothing for personnel services and capital outlays, to wit:
Personnel
Services

III.

Maintenance
and Other
Operating
Expenditures

Capital
Outlays

TOTAL

Operations
a.

Funding Assistance to Science

and Technology Activities
1.

177,406,000

Central Office
a. Generation of new
knowledge and
technologies and research
capability building in
priority areas identified as
strategic to National
Development

1,887,365,000

49,090,000

2,113,861,000

1,554,238,000

1,554,238,000

537,910,000

537,910,000

Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the appropriation by Congress for the
program Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to
National Development, the Executive allotted funds for personnel services and capital outlays. The Executive thereby substituted its will
to that of Congress. Worse, the Executive had not earlier proposed any amount for personnel services and capital outlays in the NEP
that became the basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an expense category sufficiently
indicated that Congress purposely did not see fit to fund, much less implement, the PAP concerned. This indication becomes clearer
when even the President himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP requiring
expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any funding for which would go beyond
the authority laid down by Congress in enacting the GAAs. That happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and Emerging Technology Research
and Development (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory, which reads:
APPROPRIATION
CODE

A.02.a

PARTICULARS

Development, integration and coordination of the National

Research System for Industry, Energy and Emerging Technology
and Related Fields
Capital Outlays

AMOUNT
AUTHORIZED

P 300,000,000

the appropriation code and the particulars appearing in the SARO did not correspond to the program specified in the GAA, whose
particulars were Research and Management Services(inclusive of the following activities: (1) Technological and Economic Assessment
for Industry, Energy and Utilities; (2) Dissemination of Science and Technology Information; and (3) Management of PCIERD
Information System for Industry, Energy and Utilities. Even assuming that Development, integration and coordination of the National
Research System for Industry, Energy and Emerging Technology and Related Fields the particulars stated in the SARO could fall
under the broad program description of Research and Management Services as appearing in the SARO, it would nonetheless remain
a new activity by reason of its not being specifically stated in the GAA. As such, the DBM, sans legislative authorization, could not
validly fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound discretion in implementing the budget
given the generality in the language and the broad policy objectives identified under the GAAs;172 and that the President enjoyed
unlimited authority to spend the initial appropriations under his authority to declare and utilize savings,173 and in keeping with his duty to
faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws
(which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his own will
for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the
GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress, not in the
Executive.174 Moreover, leaving the spending power of the Executive unrestricted would threaten to undo the principle of separation of
powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it deliberates and acts on
the budget proposal submitted by the Executive.176 Its power of the purse is touted as the very foundation of its institutional
strength,177 and underpins "all other legislative decisions and regulating the balance of influence between the legislative and executive
branches of government."178 Such enormous power encompasses the capacity to generate money for the Government, to appropriate
public funds, and to spend the money.179 Pertinently, when it exercises its power of the purse, Congress wields control by specifying the
PAPs for which public money should be spent.

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It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations.180For this purpose,
appropriation involves two governing principles, namely: (1) "a Principle of the Public Fisc, asserting that all monies received from
whatever source by any part of the government are public funds;" and (2) "a Principle of Appropriations Control, prohibiting expenditure
of any public money without legislative authorization."181To conform with the governing principles, the Executive cannot circumvent the
prohibition by Congress of an expenditure for a PAP by resorting to either public or private funds.182 Nor could the Executive transfer
appropriated funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP is necessarily
decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any item in the GAA "for their
respective offices," Section 25(5), supra, has delineated borders between their offices, such that funds appropriated for one office are
prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such
transfers of funds cross-border transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive, with respect to the President; the
Senate, with respect to the Senate President; the House of Representatives, with respect to the Speaker; the Judiciary, with respect to
the Chief Justice; the Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management, did the Executive Department ever
redirect any part of savings of the National Government under your control cross border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I dont recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started building their e-library in 2010 and
they had a budget for about 207 Million but they lack about 43 Million to complete its 250 Million requirements. Prior to that, the COA, in
an audit observation informed the Speaker that they had to continue with that construction otherwise the whole building, as well as the
equipments therein may suffer from serious deterioration. And at that time, since the budget of the House of Representatives was not
enough to complete 250 Million, they wrote to the President requesting for an augmentation of that particular item, which was granted,
Your Honor. The second instance in the Memos is a request from the Commission on Audit. At the time they were pushing very strongly
the good governance programs of the government and therefore, part of that is a requirement to conduct audits as well as review
financial reports of many agencies. And in the performance of that function, the Commission on Audit needed information technology
equipment as well as hire consultants and litigators to help them with their audit work and for that they requested funds from the
Executive and the President saw that it was important for the Commission to be provided with those IT equipments and litigators and
consultants and the request was granted, Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported by appropriations
SECRETARY ABAD:
They were, we were augmenting existing items within their (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and the tenor or text of the Constitution is quite clear as far as
I am concerned. It says here, "The power to augment may only be made to increase any item in the General Appropriations Law for
their respective offices." Did you not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your Honor. What we thought we did
was to transfer savings which was needed by the Commission to address deficiency in an existing item in both the Commission as well
as in the House of Representatives; thats how we saw(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, thats your feeling.

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SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission and the House of Representatives, we felt that we
needed to respond because we felt(interrupted).183
The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were transferred under the DAP
respectively to the COA184 and the House of Representatives.185 Those transfers of funds, which constituted cross-border
augmentations for being from the Executive to the COA and the House of Representatives, are graphed as follows:186

OFFICE

PURPOSE

DATE
RELEASED

Commission on
Audit

IT Infrastructure Program and hiring of

additional litigation experts

11/11/11

Congress
House of
Representative
s

Completion of the construction of the

Legislative Library and Archives
Building/Congressional e-library

07/23/12

AMOUNT
(In thousand pesos)
Reserve
Imposed

Releases

143,700

207,034
(Savings of HOR)

250,000

The respondents further stated in their memorandum that the President "made available" to the "Commission on Elections the savings
of his department upon [its] request for funds"187 This was another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department to another department upon the latters
request, provided it is the recipient department that uses such funds to augment its own appropriation. In such a case, the President
merely gives the other department access to public funds but he cannot dictate how they shall be applied by that department whose
fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing Congress, announced a different
characterization of the cross-border transfers of funds as in the nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were these cross-border transfers? They are
transfers of savings as defined in the various General Appropriations Act. So, that makes it similar to the DAP, the use of savings. There
was a cross-border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that the border was crossed.
But never has it been claimed that the purpose was to augment a deficient item in another department of the government or agency of
the government. The cross-border transfers, if Your Honors please, were in the nature of [aid] rather than augmentations. Here is a
government entity separate and independent from the Executive Department solely in need of public funds. The President is there 24
hours a day, 7 days a week. Hes in charge of the whole operation although six or seven heads of government offices are given the
power to augment. Only the President stationed there and in effect in-charge and has the responsibility for the failure of any part of the
government. You have election, for one reason or another, the money is not enough to hold election. There would be chaos if no money
is given as an aid, not to augment, but as an aid to a department like COA. The President is responsible in a way that the other heads,
given the power to augment, are not. So, he cannot very well allow this, if Your Honor please.189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that the position now, I think, of government is that some transfers of
savings is now considered to be, if Im not mistaken, aid not augmentation. Am I correct in my hearing of your argument?
HONORABLE MENDOZA:
Thats our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution? Where do we actually derive the concepts that transfers of
appropriation from one branch to the other or what happened in DAP can be considered a said? What particular text in the Constitution
can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your Honor please. It is drawn from the fact that the Executive is
the executive in-charge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:

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A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there are opportunities and there have been
opportunities of the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5), supra, disallowing
cross border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, were prohibited under Section
25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for 2011, 2012,and 2013. The respondents
stress, however, that the unprogrammed funds were not brought under the DAP as savings, but as separate sources of funds; and that,
consequently, the release and use of unprogrammed funds were not subject to the restrictions under Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed funds were treated as separate
sources of funds. Even so, the release and use of the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs
precisely specified the instances when the unprogrammed funds could be released and the purposes for which they could be used.
The petitioners point out that a condition for the release of the unprogrammed funds was that the revenue collections must exceed
revenue targets; and that the release of the unprogrammed funds was illegal because such condition was not met.191
The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP were in accordance with the
pertinent provisions of the GAAs. In particular, the DBM avers that the unprogrammed funds could be availed of when any of the
following three instances occur, to wit: (1) the revenue collections exceeded the original revenue targets proposed in the BESFs
submitted by the President to Congress; (2) new revenues were collected or realized from sources not originally considered in the
BESFs; or(3) newly-approved loans for foreign assisted projects were secured, or when conditions were triggered for other sources of
funds, such as perfected loan agreements for foreign-assisted projects.192 This view of the DBM was adopted by all the respondents in
their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations that provided standby
authority to incur additional agency obligations for priority PAPs when revenue collections exceeded targets, and when additional
foreign funds are generated.194 Contrary to the DBMs averment that there were three instances when unprogrammed funds could be
released, the BESFs envisioned only two instances. The third mentioned by the DBM the collection of new revenues from sources not
originally considered in the BESFs was not included. This meant that the collection of additional revenues from new sources did not
warrant the release of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were collected or
generated, the basic condition that the revenue collections should exceed the revenue targets must still be complied with in order to
justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds could be released was bolstered by the following texts of
the Special Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue
targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including
savings generated from programmed appropriations for the year: PROVIDED, That collections arising from sources not considered in
the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in
case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be
sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are savings
generated from the programmed appropriations for the first two quarters of the year, the DBM may, subject to the approval of the
President, release the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent (50%) of the said
savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of the total savings from programmed
appropriations for the year shall be subject to fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution:
PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreign-assisted projects,
the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan
proceeds.

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As can be noted, the provisos in both provisions to the effect that "collections arising from sources not considered in the aforesaid
original revenue targets may be used to cover releases from appropriations in this Fund" gave the authority to use such additional
revenues for appropriations funded from the unprogrammed funds. They did not at all waive compliance with the basic requirement that
revenue collections must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues generated from newly-approved foreign loans were clear to the
effect that the perfected loan agreement would be in itself "sufficient basis" for the issuance of a SARO to release the funds but only to
the extent of the amount of the loan. In such instance, the revenue collections need not exceed the revenue targets to warrant the
release of the loan proceeds, and the mere perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these provisions of the GAAs the additional revenues from sources not considered in
the BESFs must be taken into account in determining if the revenue collections exceeded the revenue targets. The text of the relevant
provision of the 2013 GAA, which was substantially similar to those of the GAAs for 2011 and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution,
including collections arising from sources not considered in the aforesaid original revenue target, as certified by the BTr: PROVIDED,
That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be
sufficient basis for the issuance of a SARO covering the loan proceeds.
Consequently, that there were additional revenues from sources not considered in the revenue target would not be enough. The total
revenue collections must still exceed the original revenue targets to justify the release of the unprogrammed funds (other than those
from newly-approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase "revenue collections should
exceed the original revenue targets." The petitioners take the phrase to mean that the total revenue collections must exceed the total
revenue target stated in the BESF, but the respondents understand the phrase to refer only to the collections for each source of
revenue as enumerated in the BESF, with the condition being deemed complied with once the revenue collections from a particular
source already exceeded the stated target.
The BESF provided for the following sources of revenue, with the corresponding revenue target stated for each source of revenue, to
wit:
TAX REVENUES
Taxes on Net Income and Profits
Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT
Selected Excises on Goods
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform Activities
Other Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees and Charges
BTR Income
Government Services
Interest on NG Deposits
Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from the Bureau of Treasury (BTr) to the effect that the revenue
collections had exceeded the original revenue targets,195 they complied by submitting certifications from the BTr and Department of
Finance (DOF) pertaining to only one identified source of revenue the dividends from the shares of stock held by the Government in
government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented the certification dated March 4, 2011 issued by DOF
Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the programmed income from dividends
from shares of stock in government-owned and controlled corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury, the National Government has recorded dividend income
amounting to P23.8 billion as of 31 January 2011.196

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For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the period January to March 2012
amounted to P19.419 billion compared to the full year program of P5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the period January to May 2013 amounted
to P12.438 billion compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the NAIA expressway amounting to P11.0
billion in June 2013.199
The certifications reflected that by collecting dividends amounting to P23.8 billion in 2011, P19.419 billion in 2012, and P12.438 billion in
2013 the BTr had exceeded only the P5.5 billion in target revenues in the form of dividends from stocks in each of 2011 and 2012, and
only the P10 billion in target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue targets was to be construed in light of the purpose for
which the unprogrammed funds were incorporated in the GAAs as standby appropriations to support additional expenditures for certain
priority PAPs should the revenue collections exceed the resource targets assumed in the budget or when additional foreign project loan
proceeds were realized. The unprogrammed funds were included in the GAAs to provide ready cover so as not to delay the
implementation of the PAPs should new or additional revenue sources be realized during the year.200 Given the tenor of the
certifications, the unprogrammed funds were thus not yet supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of the proposed programmed
appropriations. In contrast, the unprogrammed funds, as standby appropriations, were to be released only when there were revenues in
excess of what the programmed appropriations required. As such, the revenue targets should be considered as a whole, not
individually; otherwise, we would be dealing with artificial revenue surpluses. The requirement that revenue collections must exceed
revenue target should be understood to mean that the revenue collections must exceed the total of the revenue targets stated in the
BESF. Moreover, to release the unprogrammed funds simply because there was an excess revenue as to one source of revenue would
be an unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in contravention of
the Governments surplus budget policy.202
We cannot, therefore, subscribe to the respondents view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks and balances, and the principle of
public accountability.
With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna argues that the implementation of the DAP
was "unfair as it [was] selective" because the funds released under the DAP was not made available to all the legislators, with some of
them refusing to avail themselves of the DAP funds, and others being unaware of the availability of such funds. Thus, the DAP
practised "undue favoritism" in favor of select legislators in contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable classification was used in
distributing the funds under the DAP; and that the Senators who supposedly availed themselves of said funds were differently treated
as to the amounts they respectively received.
Anent the petitioners theory that the DAP violated the system of checks and balances, Luna submits that the grant of the funds under
the DAP to some legislators forced their silence about the issues and anomalies surrounding the DAP. Meanwhile, Belgica stresses that
the DAP, by allowing the legislators to identify PAPs, authorized them to take part in the implementation and execution of the GAAs, a
function that exclusively belonged to the Executive; that such situation constituted undue and unjustified legislative encroachment in the
functions of the Executive; and that the President arrogated unto himself the power of appropriation vested in Congress because NBC
No. 541 authorized the use of the funds under the DAP for PAPs not considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability enshrined in the
Constitution,204 because the legislators relinquished the power of appropriation to the Executive, and exhibited a reluctance to inquire
into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds under the DAP could be raised only
by the affected Members of Congress themselves, and if the challenge based on the violation of the Equal Protection Clause was really
against the constitutionality of the DAP, the arguments of the petitioners should be directed to the entitlement of the legislators to the
funds, not to the proposition that all of the legislators should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the DAP to
legislators, lacks factual and legal basis. The allegations about Senators and Congressmen being unaware of the existence and
implementation of the DAP, and about some of them having refused to accept such funds were unsupported with relevant data. Also,
the claim that the Executive discriminated against some legislators on the ground alone of their receiving less than the others could not
of itself warrant a finding of contravention of the Equal Protection Clause. The denial of equal protection of any law should be an issue
to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have
been discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such affected legislators
could properly and fully bring to the fore when and how the denial of equal protection occurred, and explain why there was a denial in
their situation. The requirement was not met here. Consequently, the Court was not put in the position to determine if there was a denial
of equal protection. To have the Court do so despite the inadequacy of the showing of factual and legal support would be to compel it to
speculate, and the outcome would not do justice to those for whose supposed benefit the claim of denial of equal protection has been
made.
The argument that the release of funds under the DAP effectively stayed the hands of the legislators from conducting congressional
inquiries into the legality and propriety of the DAP is speculative. That deficiency eliminated any need to consider and resolve the
argument, for it is fundamental that speculation would not support any proper judicial determination of an issue simply because nothing
concrete can thereby be gained. In order to sustain their constitutional challenges against official acts of the Government, the

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petitioners must discharge the basic burden of proving that the constitutional infirmities actually existed.205 Simply put, guesswork and
speculation cannot overcome the presumption of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation through the various circulars and memoranda of the DBM
transgressed the system of checks and balances in place in our constitutional system. Our earlier expositions on the DAP and its
implementing issuances infringing the doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the adoption and implementation of the DAP constituted an
assumption by the Executive of Congress power of appropriation, we have already held that the DAP and its implementing issuances
were policies and acts that the Executive could properly adopt and do in the execution of the GAAs to the extent that they sought to
implement strategies to ramp up or accelerate the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal with the consequences of the
declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or obligation.206 However, the
generality of the rule makes us ponder whether rigidly applying the rule may at times be impracticable or wasteful. Should we not
recognize the need to except from the rigid application of the rule the instances in which the void law or executive act produced an
almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one, has been exhaustively explained in De
Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken
under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of
paper. As the new Civil Code puts it: When the courts declare a law to be inconsistent with the Constitution, the former shall be void
and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the
laws of the Constitution. It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of
doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied
with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties
may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard
be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is
now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a
declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had
transpired prior to such adjudication.
In the language of an American Supreme Court decision: The actual existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased
by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with
respect to particular relations, individual and corporate, and particular conduct, private and official."
The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as
an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or
executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no
effect.208 But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law
or executive act, but is resorted to only as a matter of equity and fair play.209 It applies only to cases where extraordinary circumstances
exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds
from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer
be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is broad enough to
include any and all acts of the Executive, including those that are quasi legislative and quasi-judicial in nature. The Court held so in
Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact doctrine should be limited to statutes and
rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are
quasi-legislative in nature. Thus, the minority concludes that the phrase executive act used in the case of De Agbayani v. Philippine
National Bank refers only to acts, orders, and rules and regulations that have the force and effect of law. The minority also made
mention of the Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v. Benito, where it was supposedly made
explicit that the operative fact doctrine applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case elaborates what executive act mean.
Moreover, while orders, rules and regulations issued by the President or the executive branch have fixed definitions and meaning in the
Administrative Code and jurisprudence, the phrase executive act does not have such specific definition under existing laws. It should

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be noted that in the cases cited by the minority, nowhere can it be found that the term executive act is confined to the foregoing.
Contrarily, the term executive act is broad enough to encompass decisions of administrative bodies and agencies under the executive
department which are subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the Presidential Commission on Good
Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) which was declared unconstitutional by this Court in Public
Interest Center, Inc. v. Elma. In said case, this Court ruled that the concurrent appointment of Elma to these offices is in violation of
Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible offices. Notably, the appointment of Elma as
Chairman of the PCGG and as CPLC is, without a question, an executive act. Prior to the declaration of unconstitutionality of the said
executive act, certain acts or transactions were made in good faith and in reliance of the appointment of Elma which cannot just be set
aside or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the invalidity of the jurisdiction of the military courts
over civilians, certain operative facts must be acknowledged to have existed so as not to trample upon the rights of the accused therein.
Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that military tribunals pertain to the Executive Department of
the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commanderin-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of
his authorized military representatives.
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by the executive department that are
accorded the same status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive issuances like orders and rules and
regulations, said principle can nonetheless be applied, by analogy, to decisions made by the President or the agencies under the
executive department. This doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to encompass
said decisions of the executive branch. In keeping with the demands of equity, the Court can apply the operative fact doctrine to acts
and consequences that resulted from the reliance not only on a law or executive act which is quasi-legislative in nature but also on
decisions or orders of the executive branch which were later nullified. This Court is not unmindful that such acts and consequences
must be recognized in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative agencies has to be complied with because it has the force and
effect of law, springing from the powers of the President under the Constitution and existing laws. Prior to the nullification or recall of
said decision, it may have produced acts and consequences in conformity to and in reliance of said decision, which must be respected.
It is on this score that the operative fact doctrine should be applied to acts and consequences that resulted from the implementation of
the PARC Resolution approving the SDP of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise declared that "for the operative fact
doctrine to apply, there must be a legislative or executive measure, meaning a law or executive issuance." Thus, the Court opined
there that the operative fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from the time the rule or ruling is issued up to
its reversal by the Commissioner or this Court. The reversal is not given retroactive effect. This, in essence, is the doctrine of operative
fact. There must, however, be a rule or ruling issued by the Commissioner that is relied upon by the taxpayer in good faith. A mere
administrative practice, not formalized into a rule or ruling, will not suffice because such a mere administrative practice may not be
uniformly and consistently applied. An administrative practice, if not formalized as a rule or ruling, will not be known to the general
public and can be availed of only by those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive
acts.1avvphi1 The DAP itself, as a policy, transcended a merely administrative practice especially after the Executive, through the
DBM, implemented it by issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments
made available to the different agencies and departments was consistently applied throughout the entire Executive. With the Executive,
through the DBM, being in charge of the third phase of the budget cycle the budget execution phase, the President could legitimately
adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of directing the national economy towards
growth and development. This is simply because savings could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs that
were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other
departments of the Government in clear violation of the Constitution. To declare the implementation of the DAP unconstitutional without
recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds
of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser
and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith
under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded
undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the
visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like.
Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction,
and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not
always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the
effects of what used to be a valid law would result in inequity and injustice;212 but where no such result would ensue, the general rule
that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone,
and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of
the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil,
administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and
practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances
UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of
powers, namely:

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(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with
the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the
Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations
Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the National Treasurer
that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General
Appropriations Acts.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

EN BANC
[G.R. No. 147589. June 26, 2001]
ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its secretary-general,
MOHAMMAD OMAR FAJARDO,petitioner, vs. COMMISSION ON ELECTIONS; CITIZENS DRUG WATCH; MAMAMAYAN
AYAW SA DROGA; GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES;
PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE;
CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.;
ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under
Organizations/Coalitions of Omnibus Resolution No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP;
NATIONALIST PEOPLES COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDPLABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under Political
Parties of Omnibus Resolution No. 3785. respondents.
[G.R. No. 147613. June 26, 2001]
BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLES COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY;
MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and
BAGONG BAYANI ORGANIZATION, respondents.
DECISION
PANGANIBAN, J.:
The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in
life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws
designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the States
benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including
those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty
objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics.
The Case

Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785 [1] issued by the
Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties,
including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing
mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties,
the non-marginalized or overrepresented.
The Factual Antecedents

With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations
and political parties. According to the Comelec, [v]erifications were made as to the status and capacity of these parties and
organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the
observance of the legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order
to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on

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political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the
Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001.[2]
Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the
registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list
elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration,
together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations
beyond the deadline.
The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied
those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote:
We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage
multi-partisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral
window.
It will be noted that as defined, the party-list system is a mechanism of proportional representation in the election of representatives to
the House of Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the
Commission on Elections.
However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of
sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules
and regulations and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or
Oppositions.[3]
On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that the names of [some of herein
respondents] be deleted from the Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party
List System for the May 14, 2001 Elections and that said certified list be accordingly amended. It also asked, as an alternative, that the
votes cast for the said respondents not be counted or canvassed, and that the latters nominees not be proclaimed. [4] On April 11, 2001,
Bayan Muna and Bayan Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein
respondents.[5]
On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from
notice. It also set the date for hearing on April 26, 2001, [6] but subsequently reset it to May 3, 2001. [7] During the hearing, however,
Commissioner Ralph C. Lantion merely directed the parties to submit their respective memoranda.[8]
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition [9] before this Court on
April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated
April 17, 2001,[10] the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice.[11]
On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, [12] docketed as GR No. 147613, also challenging
Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001,[13] the Court ordered the consolidation of the two Petitions
before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and
called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed with the counting and canvassing of
votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court.
Thereafter, Comments[14] on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was
conducted as scheduled. In an Order given in open court, the parties were directed to submit their respective Memoranda
simultaneously within a non-extendible period of five days.[15]
Issues:

During the hearing on May 17, 2001, the Court directed the parties to address the following issues:
1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate
remedy in the ordinary course of law?
2. Whether or not political parties may participate in the party-list elections.
3. Whether or not the party-list system is exclusive to marginalized and underrepresented sectors and organizations.
4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785.[16]
The Courts Ruling

The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary
evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the
requirements of the Constitution and RA 7941, as specified in this Decision.

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First Issue:

Recourse Under Rule 65

Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and
adequate remedies in the ordinary course of law.[17] The Office of the Solicitor General argues that petitioners should have filed before
the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec
Resolution No. 3307-A[18]dated November 9, 2000.[19]
We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave
abuse of discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the
Constitution[20] and the Rules of Court, such challenge may be brought before this Court in a verified petition for certiorari under Rule
65.
Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for
reconsideration was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure.[21]
The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and
Nomination against some of herein respondents. [22] The Comelec, however, did not act on that Petition. In view of the pendency of the
elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent
events have proven the urgency of petitioners action; to this date, the Comelec has not yet formally resolved the Petition before it. But a
resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter
quite clear.
In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and
adequate remedy.[23] It has been held that certiorari is available, notwithstanding the presence of other remedies, where the issue raised
is one purely of law, where public interest is involved, and in case of urgency.[24] Indeed, the instant case is indubitably imbued with
public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives.
Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve,
consistent with its duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.[25]
Finally, procedural requirements may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of
social justice x x x when the decision sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.[26]
Second Issue:

Participation of Political Parties

In its Petition, Ang Bagong Bayani-OFW Labor Party contends that the inclusion of political parties in the party-list system is the
most objectionable portion of the questioned Resolution. [27] For its part, Petitioner Bayan Muna objects to the participation of major
political parties.[28] On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the
Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact,
open to all registered national, regional and sectoral parties or organizations.[29]
We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list
elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the
House of Representatives may be elected through a party-list system of registered national, regional, and sectoral parties or
organizations.
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list
system.
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list
system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters'
registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to
appoint poll watchers in accordance with law.[30]
During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the
party-list system may be a regional party, a sectoral party, a national party, UNIDO, [31] Magsasaka, or a regional party in
Mindanao."[32] This was also clear from the following exchange between Comms. Jaime Tadeo and Blas Ople:[33]
MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido.

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Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a
chance to parties that consistently place third or fourth in congressional district elections to win a seat in Congress.[34] He explained: The
purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their
votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or fourth place in each of the districts. So, they
have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win
individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system.
For its part, Section 2 of RA 7941 also provides for a party-list system of registered national, regional and sectoral parties or
organizations or coalitions thereof, x x x. Section 3 expressly states that aparty is either a political party or a sectoral party or a coalition
of parties. More to the point, the law defines political party as an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption,
regularly nominates and supports certain of its leaders and members as candidates for public office.
Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote
the pertinent provision below:
xxxxxxxxx
For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.
xxxxxxxxx
Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections.
Third Issue:

Marginalized and Underrepresented

That political parties may participate in the party-list elections does not mean, however, that any political party -- or any
organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the
purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as
follows:
(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law,
shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the
party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Emphasis supplied.)
Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the
purpose of the party-list provision was to give genuine power to our people in Congress. Hence, when the provision was discussed, he
exultantly announced: On this first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving
genuine power to our people in the legislature.[35]
The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like in accordance
with law or as may be provided by law; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA
7941 was enacted. It laid out the statutory policy in this wise:
SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit
the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee
a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest
scheme possible.
The Marginalized and Underrepresented to Become Lawmakers Themselves

The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list
system, which will enable the election to the House of Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and

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2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.
The key words in this policy are proportional representation, marginalized and underrepresented, and lack [of] well-defined
constituencies.
Proportional representation here does not refer to the number of people in a particular district, because the party-list election is
national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation
of the marginalized and underrepresented as exemplified by the enumeration in Section 5 of the law; namely, labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.
However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because
representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section 5.[36] Concurrently, the persons nominated by the party-list candidateorganization must be Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties.
Finally, lack of well-defined constituenc[y] refers to the absence of a traditionally identifiable electoral group, like voters of a
congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the
marginalized or underrepresented.
In the end, the role of the Comelec is to see to it that only those Filipinos who are marginalized and underrepresented become
members of Congress under the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in
life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the
implementing law, we repeat, is likewise clear: to enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House of Representatives. Where the language of the law is clear, it must
be applied according to its express terms.[37]
The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA
7941, which states:
SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list
system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition
agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals.
While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law
that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words
employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases
with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in
immediate association.[38]
The Party-List System Desecrated by the OSG Contentions

Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 does not limit the
participation in the party-list system to the marginalized and underrepresented sectors of society.[39] In fact, it contends that any party or
group that is not disqualified under Section 6[40]of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument
that even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections.[41]
The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list
system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors,
organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not
exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-rich and
overrepresented can participate desecrates the spirit of the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion
owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSGs position to treat them similarly
defies reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan[42] admitted during the Oral
Argument that a group of bankers, industrialists and sugar planters could not join the party-list system as representatives of their
respective sectors.[43]
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor
underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical
limitation. Traditionally, political power does not necessarily emanate from the size of ones constituency; indeed, it is likely to arise more
directly from the number and amount of ones bank accounts.

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It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution
and infirmity. It was for them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give
them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice
in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a
new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the
urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated
during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle.
Because the marginalized and underrepresented had not been able to win in the congressional district elections normally
dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the
party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in
the party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the
congressional district elections and the party-list elections.
As earlier noted, the purpose of the party-list provision was to open up the system, [44] in order to enhance the chance of sectoral
groups and organizations to gain representation in the House of Representatives through the simplest scheme possible. [45] Logic shows
that the system has been opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular
elections and who therefore need the simplest scheme possible to do so. Conversely, it would be illogical to open the system to those
who have long been within it -- those privileged sectors that have long dominated the congressional district elections.
The import of the open party-list system may be more vividly understood when compared to a student dormitory open house,
which by its nature allows outsiders to enter the facilities. Obviously, the open house is for the benefit of outsiders only, not the dormers
themselves who can enter the dormitory even without such special privilege. In the same vein, the open party-list system is only for the
outsiders who cannot get elected through regular elections otherwise; it is not for the non-marginalized or overrepresented who already
fill the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not
only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law
to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others,
to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor
underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the
qualification of political parties and other organizations under the party-list system.
Refutation of the Separate Opinions

The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on
the supposed intent of the framers of the Constitution as culled from their deliberations.
The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional
intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are
couched express the objective sought to be attained.[46] In other words, verba legis still prevails. Only when the meaning of the words
used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of
the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being
construed.[47]
Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive
Secretary[48] that the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and
purpose of the resulting Constitution x x x only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention are of value as showing the views of the individual
members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk,
much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face. The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers understanding thereof.
Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system
shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation,
we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction
be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that
the party-list system of electing congressional representatives was designed to enable underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole x x x. The criteria for participation is well defined. Thus, there is no need for recourse to
constitutional deliberations, not even to the proceedings of Congress. In any event, the framers deliberations merely express their
individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain
parts of the law, which must be applied plainly and simply.

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Fourth Issue:

Grave Abuse of Discretion

From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the
Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel
admitted before the Court that any group, even the non-marginalized and overrepresented, could field candidates in the party-list
elections.
When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its
action can be struck down by this Court on the ground of grave abuse of discretion. [49] Indeed, the function of all judicial and quasijudicial instrumentalities is to apply the law as they find it, not to reinvent or second-guess it.[50]
In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties
Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been
accredited as the five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues that because of this,
they have the advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x. We note,
however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the
purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166.
What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that
matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to
the Constitution and the law.
Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because it is a government
entity using government resources and privileges. This Court, however, is not a trier of facts. [51] It is not equipped to receive evidence
and determine the truth of such factual allegations.
Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the
guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list
system.
Guidelines for Screening Party-List Participants

The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary
hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the
law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the
Comelec in its work.
First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified
in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of
government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has
chosen or is likely to choose the interest of such sectors.
Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list
system, they must comply with the declared statutory policy of enabling Filipino citizens belonging to marginalized and
underrepresented sectors x x x to be elected to the House of Representatives. In other words, while they are not disqualified merely on
the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and
underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral
Argument, as the following quote shows:
JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the
marginalized and underrepresented sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes.[52]
Third, in view of the objections[53] directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious
group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The
extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional
Commission:
MR. OPLE. x x x
In the event that a certain religious sect with nationwide and even international networks of members and supporters,
in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned
earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this
prohibition?

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MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce
through the legal fiction.[54]
The following discussion is also pertinent:
MR. VILLACORTA. When the Commissioner proposed EXCEPT RELIGIOUS GROUPS, he is not, of course, prohibiting priests,
imams or pastors who may be elected by, say, the indigenous community sector to represent their group.
REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant
Church et cetera.[55]
Furthermore, the Constitution provides that religious denominations and sects shall not be registered. [56] The prohibition was
explained by a member[57] of the Constitutional Commission in this wise: [T]he prohibition is on any religious organization registering as
a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the
registration of a religious sect as a political party.[58]
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows:
(1) It is a religious sect or denomination, organization or association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or
through any of its officers or members or indirectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast
under the party-list system in the two (2) preceding elections for the constituency in which it has registered. [59]
Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and
regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to enable Filipino citizens belonging
to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives. A
party or an organization, therefore, that does not comply with this policy must be disqualified.
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the
government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and
operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a
party-list candidate is not only illegal [60] and unfair to other parties, but also deleterious to the objective of the law: to enable citizens
belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941
reads as follows:
SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of
the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office
until the expiration of his term.
Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its
nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens who belong to marginalized and
underrepresented sectors, organizations and parties. Surely, the interests of the youth cannot be fully represented by a retiree; neither
can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine
representation to the marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to
contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina

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explained during the bicameral committee proceedings that the nominee of a party, national or regional, is not going to represent a
particular district x x x.[61]
Epilogue

The linchpin of this case is the clear and plain policy of the law: to enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives.
Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in
law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people
genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that
change is possible. It is an invitation for them to come out of their limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is,
without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and
underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would
create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization.
In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a
play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not
have been the intention of the framers of the Constitution and the makers of RA 7941.
WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary
evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this
Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin
its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of
Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof.
The Resolution of this Court dated May 9, 2001, directing the Comelec to refrain from proclaiming any winner during the last
party-list election, shall remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing
disposition.
This Decision is immediately executory upon the Commission on Elections receipt thereof. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result.
Vitug and Mendoza, JJ., see dissenting opinion.
Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the dissent of J. Vicente M. Mendoza.
Ynares-Santiago, J., abroad on official business.

EN BANC

BARANGAY ASSOCIATION FOR G.R. No. 179271

NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,

- versus -

COMMISSION ON ELECTIONS

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Page 64 of 204

(sitting as the National Board of

Canvassers),
Respondent.

ARTS BUSINESS AND SCIENCE

PROFESSIONALS,
Intervenor.

AANGAT TAYO,
Intervenor.

COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR G.R. No. 179295
TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION Present:
AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC., PUNO, C.J.,
and ABONO, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent.
_______________________

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

DECISION

CARPIO, J.:

The Case

Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for certiorari
and mandamus,[1] assails the Resolution[2] promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the
National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot.BANAT filed before the COMELEC En
Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of
Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and
Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition, [3] assails NBC Resolution
No. 07-60[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that
obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of
the canvass of the party-list results, it would determine the total number of seats of each winning party, organization, or coalition in
accordance with Veterans Federation Party v. COMELEC[5] (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both
G.R. Nos. 179271 and 179295.

The Facts
The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for
93 parties under the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution,
docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because [t]he Chairman and the Members of the
[COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement
the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats. [7] There were no intervenors in BANATs
petition before the NBC. BANAT filed a memorandum on 19 July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed
thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle
Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher,
Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOPNATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee
for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million
two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of
Representation, in connection with the National and Local Elections conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals
that the projected/maximum total party-list votes cannot go any higher thansixteen million seven hundred twenty
three thousand one hundred twenty-one (16,723,121) votes given the following statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already canvassed/tabulated

ii. Total party-list votes remaining uncanvassed/ untabulated (i.e.
canvass deferred)

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15,283,659

Page 66 of 204

1,337,032
iii. Maximum party-list votes (based on 100% outcome) from
areas not yet submitted for canvass (Bogo, Cebu; Bais City;
Pantar, Lanao del Norte; and Pagalungan, Maguindanao)

102,430
Maximum Total Party-List Votes

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast
for the party-list system shall be entitled to one seat each: provided, that those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number
of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than
three (3) seats.
WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two
percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two
(334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling
in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party,
organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be
determined only after all party-list ballots have been completely canvassed;

WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four
thousand four hundred sixty-two (334,462) votes are as follows:

RANK

PARTY/ORGANIZATION/

VOTES

COALITION

RECEIVED

BUHAY

1,163,218

BAYAN MUNA

972,730

CIBAC

760,260

GABRIELA

610,451

APEC

538,971

A TEACHER

476,036

AKBAYAN

470,872

ALAGAD

423,076

BUTIL

405,052

10

COOP-NATCO

390,029

11

BATAS

386,361

12

ANAK PAWIS

376,036

13

ARC

338,194

14

ABONO

337,046

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WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which
an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF
PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission,
docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are
therefore entitled to at least one seat under the party-list system of representation in the meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive
Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en
banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain
conditions set forth below, the following parties, organizations and coalitions participating under the Party-List
System:

Buhay Hayaan Yumabong

Bayan Muna

Citizens Battle Against Corruption

Gabriela Womens Party

Association of Philippine Electric Cooperatives

Advocacy for Teacher Empowerment Through Action,

Cooperation and Harmony Towards Educational
Reforms, Inc.

Akbayan! Citizens Action Party

AKBAYAN

Alagad

ALAGAD

Luzon Farmers Party

10 Cooperative-Natco Network Party

11 Anak Pawis
12 Alliance of Rural Concerns
13 Abono

BUHAY
BAYAN MUNA
CIBAC
GABRIELA
APEC
A TEACHER

BUTIL
COOP-NATCCO
ANAKPAWIS
ARC
ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be
established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System.

The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans
Federation Party versus COMELEC formula upon completion of the canvass of the party-list results.

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until
final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes
shall likewise be held in abeyance until final resolution of their respective cases.

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of
Representatives of the Philippines.

SO ORDERED.[8] (Emphasis in the original)

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Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the
additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in
NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers
proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%)
threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus
given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the
projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes
canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for
Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified
parties, organizations and coalition[s] are as follows:

Party-List

Projected total number of votes

BUHAY

1,178,747

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

APEC

622,489

A TEACHER

492,369

AKBAYAN

462,674

ALAGAD

423,190

BUTIL

409,298

10

COOP-NATCO

412,920

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes
among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance
with Veterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus
COMELEC;
WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation
that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula
prescribed by the Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the first party, the correct formula as expressed in Veterans, is:

Number of votes of first party Proportion of votes of first

- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats:

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Proportion of votes received

Additional seats

by the first party

Equal to or at least 6%

Two (2) additional seats

Equal to or greater than 4% but less than 6%

One (1) additional seat

Less than 4%

No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct
formula as expressed in Veterans and reiterated in CIBAC is, as follows:

No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party

WHEREAS, applying the above formula, the results are as follows:

Party List

Percentage

Additional Seat

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

APEC

1.05

A TEACHER

0.83

AKBAYAN

0.78

ALAGAD

0.71

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

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Page 70 of 204

ABONO

0.57

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order
No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting
as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties,
organizations or coalitions as entitled to additional seats, to wit:

Party List

Additional Seats

BUHAY

BAYAN MUNA

CIBAC

GABRIELA

APEC

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

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker
of the House of Representatives of the Philippines.

SO ORDERED.[9]

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution
filed by the Barangay Association for National Advancement and Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT)
party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his
comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its
Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution
prayed for the following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by
Section 5, Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be
harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941

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in that it should be applicable only to the first party-list representative seats to be allotted on the
basis of their initial/first ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the
votes they received and the additional seats shall be allocated in accordance with Section 12 of RA
7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to
the total nationwide votes cast in the party-list election, after deducting the corresponding votes of
those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION
2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be
proclaimed, which party-list groups are entitled to representative seats and how many of their
nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the
procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall
be followed.

RECOMMENDATION:

The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In the Matter
of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions
Participating Under the Party-List System During the May 14, 2007 National and Local
Elections resolved among others that the total number of seats of each winning party, organization
or
coalition
shall
be
determined
pursuant
to
the Veterans
Federation
Party versus COMELEC formula upon completion of the canvass of the party-list results.
WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to
approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein
petition of BANAT for being moot and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.[10]

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for
reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use
the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of
Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.[11]

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list
organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the
Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An Waray.[14] Per the certification[15] by COMELEC, the following party-list
organizations have been proclaimed as of 19 May 2008:

Party-List

No. of Seat(s)

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

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1.5

APEC

1.6

A Teacher

1.7

Akbayan

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

1.13

Abono

1.14

AGAP

1.15

AMIN

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for
Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has
been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution
mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and qualifier votes prescribed by the same Section 11(b) of RA 7941 constitutional?

4. How shall the party-list representatives be allocated?[16]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement
the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the First Party violates the
principle of proportional representation under RA 7941.

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2. The use of two formulas in the allocation of additional seats, one for the First Party and another for the qualifying
parties, violates Section 11(b) of RA 7941.

3. The proportional relationships under the First Party Rule are different from those required under RA 7941;

C. Violates the Four Inviolable Parameters of the Philippine party-list system as provided for under the same case
of Veterans Federation Party, et al. v. COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess
of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations,
the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant
Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the
correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.[17]

Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our
advisory for the oral arguments set on 22 April 2008:

1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution
mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the
major political parties be barred from participating in the party-listelections?[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly
stated in Veterans. For easy reference, these are:

First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty
percent of the total membership of the House of Representatives, including those elected under the party list;

Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast
for the party-list system are qualified to have a seat in the House of Representatives;

Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a
maximum of three seats; that is, one qualifying and two additional seats;

Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in
proportion to their total number of votes.[19]

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However, because the formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this
Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities,
and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including
those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum
(20%) of the total number of the members of the House of Representatives including those under the party-list.
xxx

Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and
party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of
Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of
representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this
point, we do not deviate from the first formula in Veterans, thus:

Number of seats available to

legislative districts

Number of seats available to

x .20 =

party-list representatives

.80

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative
district is created by law. Since the 14thCongress of the Philippines has 220 district representatives, there are 55 seats available to
party-list representatives.

220
.80

Bascones, R.R. (2016)

x .20 =

55

Page 75 of 204

After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the
manner of allocating the seats available to party-list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the
formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However,
there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the Party-List
System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas dissent in Veterans presented Germanys
Niemeyer formula[21] as an alternative.

The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress
enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide:

Section 11. Number of Party-List Representatives. x x x

In determining the allocation of seats for the second vote,[22] the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of
votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the partylist system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for
the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received
and allocate party-list representatives proportionately according to the percentage of votes obtained by each party,
organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No.
7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of
Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution,
Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be
proclaimed.

(b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes
they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately
preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats
shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under
the 2% threshold rule, in accordance with Section 12 of RA 7941.[23]

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Forty-four (44) party-list seats will be awarded under BANATs first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the
seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party,
organization or coalition as against the total nationwide votes cast for the party-list system.[24]

BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party
as against the total nationwide party-list votes, and the other is by making the votes of a party-list with a median percentage of votes as
the divisor in computing the allocation of seats.[25] Thirty-four (34) party-list seats will be awarded under BANATs second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-4-6 formula and the Veterans formula
for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number
of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2%
threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified partyby the total
votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats
available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent
of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat
allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining
seats on the basis of this ranking are allocated until all the seats are filled up.[26]

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of
votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered
during the elections.[27]

Rank

Party

1 BUHAY

Votes
Garnered
1,169,234

Rank

Party

Votes
Garnered

48 KALAHI

88,868

2 BAYAN MUNA

979,039

49 APOI

79,386

3 CIBAC

755,686

50 BP

78,541

4 GABRIELA

621,171

51 AHONBAYAN

78,424

5 APEC

619,657

52 BIGKIS

77,327

6 A TEACHER

490,379

53 PMAP

75,200

7 AKBAYAN

466,112

54 AKAPIN

74,686

8 ALAGAD

423,149

55 PBA

71,544

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9 COOP-NATCCO

409,883

56 GRECON

62,220

10 BUTIL

409,160

57 BTM

60,993

11 BATAS

385,810

58 A SMILE

58,717

12 ARC

374,288

59 NELFFI

57,872

13 ANAKPAWIS

370,261

60 AKSA

57,012

14 ABONO

339,990

61 BAGO

55,846

15 AMIN

338,185

62 BANDILA

54,751

16 AGAP

328,724

63 AHON

54,522

17 AN WARAY

321,503

64 ASAHAN MO

51,722

18 YACAP

310,889

65 AGBIAG!

50,837

19 FPJPM

300,923

66 SPI

50,478

20 UNI-MAD

245,382

67 BAHANDI

46,612

21 ABS

235,086

68 ADD

45,624

22 KAKUSA

228,999

69 AMANG

43,062

23 KABATAAN

228,637

70 ABAY PARAK

42,282

24 ABA-AKO

218,818

71 BABAE KA

36,512

25 ALIF

217,822

72 SB

34,835

26 SENIOR
CITIZENS

213,058

73 ASAP

34,098

27 AT

197,872

74 PEP

33,938

28 VFP

196,266

75 ABA ILONGGO

33,903

29 ANAD

188,521

76 VENDORS

33,691

30 BANAT

177,028

77 ADD-TRIBAL

32,896

31 ANG KASANGGA

170,531

78 ALMANA

32,255

32 BANTAY

169,801

79 AANGAT
PILIPINO

33 ABAKADA

166,747

80 AAPS

26,271

34 1-UTAK

164,980

81 HAPI

25,781

35 TUCP

162,647

82 AAWAS

22,946

36 COCOFED

155,920

83 SM

20,744

37 AGHAM

146,032

84 AG

16,916

38 ANAK

141,817

85 AGING PINOY

16,729

Bascones, R.R. (2016)

KA

29,130

Page 78 of 204

39 ABANSE! PINAY

130,356

86 APO

16,421

40 PM

119,054

87 BIYAYANG BUKID

16,241

41 AVE

110,769

88 ATS

14,161

42 SUARA

110,732

89 UMDJ

9,445

43 ASSALAM

110,440

90 BUKLOD FILIPINA

8,915

44 DIWA

107,021

91 LYPAD

8,471

45 ANC

99,636

92 AA-KASOSYO

8,406

46 SANLAKAS

97,375

93 KASAPI

6,221

47 ABC

90,058

TOTAL

15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat each. This clause guarantees a seat to the two-percenters. In
Table 2 below, we use the first 20 party-list candidates for illustration purposes.The percentage of votes garnered by each party is
arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list
candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for
the party-list.[28]

Rank

Party

1 BUHAY

Votes
Garnered

Votes Garnered
over Total Votes
for Party-List, in %

Guaranteed
Seat

1,169,234

7.33%

2 BAYAN MUNA

979,039

6.14%

3 CIBAC

755,686

4.74%

4 GABRIELA

621,171

3.89%

5 APEC

619,657

3.88%

6 A TEACHER

490,379

3.07%

7 AKBAYAN

466,112

2.92%

8 ALAGAD

423,149

2.65%

9 COOP-NATCCO

409,883

2.57%

10 BUTIL

409,160

2.57%

11 BATAS[29]

385,810

2.42%

12 ARC

374,288

2.35%

13 ANAKPAWIS

370,261

2.32%

14 ABONO

339,990

2.13%

15 AMIN

338,185

2.12%

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16 AGAP

328,724

2.06%

17 AN WARAY

321,503

2.02%

Total

17

18 YACAP

310,889

1.95%

19 FPJPM

300,923

1.89%

20 UNI-MAD

245,382

1.54%

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list
candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are entitled to one seat each,
or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their total number of votes. This is where petitioners and intervenors problem with the
formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in proportion to the votes of
the first party. This interpretation is contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of
the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two
percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of
available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list
representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list
elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the
first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the
two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we
increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is
always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of
Section 5(2), Article VI of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or
group interests in the House of Representatives.[30]

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be
observed:

1.
The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they
garnered during the elections.

2.
The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system
shall be entitled to one guaranteed seat each.

3.
Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in
proportion to their total number of votes until all the additional seats are allocated.

4.

Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one
seat each, to every two-percenter. Thus, the remaining available seats for allocation as additional seats are the maximum seats

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Page 80 of 204

reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A.
No. 7941 allowing for a rounding off of fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the twopercenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by
each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum
seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the
percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Second, we assign
one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the
remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Additional
Votes
Garnered
over

Rank

Party

Votes
Garnered

Guaranteed
Seat

Seats

(B) plus
(C), in
whole
integers

Total Votes
for Party
List, in %

(First Round)

(Second
Round)

(A)
(B)

BUHAY

(E)

(D)

(C)
1

Applying
the three
seat cap

1,169,234

7.33%

2.79

N.A.

BAYAN MUNA

979,039

6.14%

2.33

N.A.

CIBAC

755,686

4.74%

1.80

N.A.

GABRIELA

621,171

3.89%

1.48

N.A.

APEC

619,657

3.88%

1.48

N.A.

A Teacher

490,379

3.07%

1.17

N.A.

AKBAYAN

466,112

2.92%

1.11

N.A.

ALAGAD

423,149

2.65%

1.01

N.A.

9[31]

COOPNATCCO

409,883

2.57%

N.A.

10

BUTIL

409,160

2.57%

N.A.

11

BATAS

385,810

2.42%

N.A.

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12

ARC

374,288

2.35%

N.A.

13

ANAKPAWIS

370,261

2.32%

N.A.

14

ABONO

339,990

2.13%

N.A.

15

AMIN

338,185

2.12%

N.A.

16

AGAP

328,724

2.06%

N.A.

17

AN WARAY

321,503

2.02%

N.A.

18

YACAP

310,889

1.95%

N.A.

19

FPJPM

300,923

1.89%

N.A.

20

UNI-MAD

245,382

1.54%

N.A.

21

ABS

235,086

1.47%

N.A.

22

KAKUSA

228,999

1.44%

N.A.

23

KABATAAN

228,637

1.43%

N.A.

24

ABA-AKO

218,818

1.37%

N.A.

25

ALIF

217,822

1.37%

N.A.

26

SENIOR
CITIZENS

213,058

1.34%

N.A.

27

AT

197,872

1.24%

N.A.

28

VFP

196,266

1.23%

N.A.

29

ANAD

188,521

1.18%

N.A.

30

BANAT

177,028

1.11%

N.A.

31

ANG
KASANGGA

170,531

1.07%

N.A.

32

BANTAY

169,801

1.06%

N.A.

33

ABAKADA

166,747

1.05%

N.A.

34

1-UTAK

164,980

1.03%

N.A.

35

TUCP

162,647

1.02%

N.A.

36

COCOFED

155,920

0.98%

N.A.

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning
party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of
votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D).

Participation of Major Political Parties in Party-List Elections

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The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list
elections. The deliberations of the Constitutional Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we
wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening
up the system, and we would like very much for the sectors to be there. That is why one of the ways to do
that is to put a ceiling on the number of representatives from any single party that can sit within the 50
allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is
this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they
run under the party list concept or must they be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates
for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for
the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list
system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the
party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral
candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he represents the farmers,
would he qualify?

MR. VILLACORTA. No, Senator Taada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who
would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority
political parties, are not prohibited to participate in the party list election if they can prove that they are also
organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the
contention of political parties that they represent the broad base of citizens and that all sectors are represented in
them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the
party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko
lamang bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198
seats, reserved din ito sa political parties.

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Page 83 of 204

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and
probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the
party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be
allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek
common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able
to make common goals with mass organizations so that the very leadership of these parties can be transformed
through the participation of mass organizations. And if this is true of the administration parties, this will be true of
others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many
mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass
organizations so that with their participation, the policies of such parties can be radically transformed because this
amendment will create conditions that will challenge both the mass organizations and the political parties to come
together. And the party list system is certainly available, although it is open to all the parties. It is understood that the
parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with
them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and
cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic
Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership
of those parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the
businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why
political parties and mass organizations should not combine, reenforce, influence and interact with each other so that
the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting,
and more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral
representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being
elected representatives later on through a party list system; and even beyond that, to become actual political parties
capable of contesting political power in the wider constitutional arena for major political parties.

x x x [32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads:

Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of
representatives to the House of Representatives from national, regional and sectoral parties or organizations or
coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a
coalition may participate independently provided the coalition of which they form part does not participate in the partylist system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies
for the general conduct of government and which, as the most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a majority of the
regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of
the cities and provinces comprising the region.

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(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5
hereof whose principal advocacy pertains to the special interests and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical
attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for
political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the
framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In
fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the
reservation of the party-list system to the sectoral groups. [33] In defining a party that participates in party-list elections as either a political
party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list
elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major
political parties from the party-list elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to
establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for
example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth
wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk
nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural
born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)
year immediately preceding the day of the elections, able to read and write, bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of
age on the day of the election. Any youth sectoral representative who attainsthe age of thirty (30) during his term
shall be allowed to continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee wallow in poverty, destitution and
infirmity[34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition
belongs to the marginalized and underrepresented sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the
Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House
of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, x x x. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot
be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision
in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat
cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that
prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance
with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in
the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections
joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in
concurring with this ponencia.

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WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC
No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold
in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with
the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This
Decision is immediately executory. No pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

EN BANC

G.R. No. 89914 November 20, 1991

JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, KURT
BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and
CYNTHIA SABIDO LIMJAP, petitioners,
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented by and through the CHAIRMAN, HON. WIGBERTO
TAADA, respondents, JOSE S. SANDEJAS, intervenor.
Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners.
Balgos & Perez for intervening petitioner.
Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:p
This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injuective relief, to enjoin the
respondent Senate Blue Ribbon committee from requiring the petitioners to testify and produce evidence at its inquiry into the alleged
sale of the equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.
On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on Good Government (PCGG), assisted
by the Solicitor General, filed with the Sandiganbayan Civil Case No. 0035 (PCGG Case No. 35) entitled "Republic of the Philippines
vs. Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting, restitution and damages.
The complaint was amended several times by impleading new defendants and/or amplifying the allegations therein. Under the Second
Amended Complaint, 1 the herein petitioners were impleaded as party defendants.
The complaint insofar as pertinent to herein petitioners, as defendants, alleges among others that:
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in
unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their
relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and
strategems to unjuestly enrigh themselves at the expense of Plaintiff and the Filipino people, among others:
(a) Obatained, with the active collaboration of Defendants Sene J. Gabaldon, Mario D. Camacho,
Mamerto Nepomuceno, Carlos J. Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose
Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E. Jimenez,
Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S. Sandejas and his fellow senior managers
of FMMC/PNI Holdings groups of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose
M. Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of some of the
biggest business enterprises in the Philippines, such as the Manila Corporation (MERALCO),
Benguet Consolidated and the Philippine Commercial International Bank (PCI Bank) by employing
devious financial schemes and techniques calculated to require the massive infusion and

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hemorrhage of government funds with minimum or negligible "cashout" from Defendant Benjamin
Romualdez...
xxx xxx xxx
(m) manipulated, with the support, assistance and collaboration of Philgurantee officials led by
chairman Cesar E.A. Virata and the Senior managers of FMMC/PNI Holdings, Inc. led by Jose S.
Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of
Erectors Holdings, Inc. without infusing additional capital solely for the purpose of Erectors
Incorporated with Philguarantee in the amount of P527,387,440.71 with insufficient
securities/collaterals just to enable Erectors Inc, to appear viable and to borrow more capitals, so
much so that its obligation with Philgurantee has reached a total of more than P2 Billion as of June
30, 1987.
(n) at the onset of the present Administration and/or within the week following the February 1986
People's Revolution, in conspiracy with, supoort, assistance and collaboration of the abovenamed
lawyers of the Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr., V.E.
Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr., manipulated, shcemed, and/or
executed a series of devices intended to conceal and place, and/or for the purpose of concealing
and placing, beyond the inquiry and jurisdiction of the Presidential Commission on Good
Government (PCGG) herein Defendant's individual and collective funds, properties, and assets
subject of and/or suited int he instant Complaint.
(o) manuevered, with the technical know-how and legalitic talents of the FMMC senior manager
and some of the Bengzon law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso,
Jr., Amando V. Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported sale of
defendant Benjamin Romualdez's interests in the (i) Professional Managers, (ii) A & E International
Corporation (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv) Philippine World
Travel Inc. (PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI Holdings, Inc.
(wjose purported incorporations are all members of Atty. Jose F.S. Bengzon's law firm) for only P5
million on March 3, 1986 or three days after the creation of the Presidential Commission on Good
Government on February 28, 1986, for the sole purpose of deceiving and preempting the
Government, particularly the PCGG, and making it appear that defendant Benjamin Romualdez
had already divested himself of his ownership of the same when in truth and in fact, his interests
are well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some of his law partners,
together with the FMMC senior managers who still control and run the affiars of said corporations,
and in order to entice the PCGG to approve the said fictitious sale, the above-named defendants
offered P20 million as "donation" to the Government;
(p) misused, with the connivance, support and technical assitance of the Bengzon law firm
represented by Atty. Jose F.S. Bengzon, Jr. as legal counsel, together with defendants Cesar
Zalamea, Antonio Ozaeta, Mario D. Camacho amd Senen J. Gabaldon as members of the Board of
Directors of the Philippine Commercial International bank (PCIB), the Meralco Pension Fund (Fund,
for short) in the amount of P25 million by cuasing it to be invested in the PCIB and through the
Bank's TSG, assigned to PCI Development and PCI Equity at 50% each, the Fund's (a) 8,028.011
common shares in the Bank and (b) "Deposit in Subscription" in the amount of P4,929.972.50 but
of the agreed consideration of P28 million for the said assignment, PCI Development and PCI
Equity were able to pay only P5,500.00 downpayment and the first amortization of P3,937,500.00
thus prompting the Fund to rescind its assignment, and the consequent reversion of the assigned
brought the total shareholding of the Fund to 11,470,555 voting shares or 36.8% of the voting stock
of the PCIB, and this development (which the defendants themselves orchestrated or allowed to
happen) was used by them as an excuse for the unlawful dismantling or cancellation of the Fund's
10 million shares for allegedly exceeding the 30-percent ceiling prescribed by Section 12-B of the
General Banking Act, although they know for a fact that what the law declares as unlawful and void
ab initio are the subscriptions in excess of the 30% ceiling "to the extent of the excess over any of
the ceilings prescribed ..." and not the whole or entire stockholding which they allowed to stay for
six years (from June 30, 1980 to March 24, 1986);
(q) cleverly hid behind the veil of corporate entity, through the use of the names and managerial
expertise of the FMMC senior manager and lawyers identified as Jose B. Sandejas, Leonardo
Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon, Rex C.
Drilon II, Kurt Bachmann, Jr. together with the legal talents of corporate lawyers, such as Attys.
Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the illgotten wealth of Benjamin T. Romualdez including, among others, the 6,229,177 shares in PCIB
registered in the names of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso, Jr.
which they refused to surrender to PCGG despite their disclosure as they tried and continue to
exert efforts in getting hold of the same as well as the shares in Benguet registered in the names of
Palm Avenue Holdings and Palm Avenue Realty Development Corp. purportedly to be applied as
payment for the claim of P70 million of a "merger company of the First Manila Managerment Corp.
group" supposedly owned by them although the truth is that all the said firms are still beneficially
owned by defendants Benjamin Romualdez.

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xxx xxx xxx

On 28 September 1988, petitioner (as defendants) filed their respective answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting
reports on the disposition by the PCGG of the "Romualdez corporations" were carried in various metropolitan newspapers. Thus, one
newspaper reported that the Romuladez firms had not been sequestered because of the opposition of certain PCGG officials who "had
worked prviously as lawyers of the Marcos crony firms." Another daily reported otherwise, while others declared that on 3 March 1986,
or shortly after the EDSA February 1986 revolution, the Romualdez companies" were sold for P5 million, without PCGG approval, to a
holding company controlled by Romualdez, and that Ricardo Lopa, the President's brother-in-law, had effectively taken over the firms,
even pending negotiations for the purchase of the corporations, for the same price of P5 million which was reportedly way below the fair
value of their assets. 3
On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of personal
privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the alleged "take-over of SOLOIL
Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo Lopa" and called upon "the Senate to look
into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices
Act." 4
On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers
(Blue Ribbon Committee). 5 Thereafter, the Senate Blue Ribbon Committee started its investigation on the matter. Petitioners and
Ricardo Lopa were subpoenaed by the Committee to appear before it and testify on "what they know" regarding the "sale of thirty-six
(36) corporations belonging to Benjamin "Kokoy" Romualdez."
At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his testimony may "unduly prejudice" the
defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing his
constitutional right to due process, and averring that the publicity generated by respondents Committee's inquiry could adversely affect
his rights as well as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan.
The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the petitioners to file their memorandum on the
constitutional issues raised, after which, it issued a resolution 6 dated 5 June 1989 rejecting the petitioner's plea to be excused from
testifying, and the Committee voted to pursue and continue its investigation of the matter. Senator Neptali Gonzales dissented. 7
Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their attendance and testimony in
proceedings before the Committee, in excess of its jurisdiction and legislative purpose, in clear and blatant disregard of their
constitutional rights, and to their grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain,
speedy and adequate remedy in the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for
temporary restraning order and/or injunctive relief.
Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the Court of motion
for intervention, 8 which the Court granted in the resolution 9 of 21 December 1989, and required the respondent Senate Blue Ribbon
Committee to comment on the petition in intervention. In compliance, therewith, respondent Senate Blue Ribbon Committee filed its
comment10 thereon.
Before discussing the issues raised by petitioner and intervenor, we will first tackle the jurisdictional question raised by the respondent
Committee.
In its comment, respondent Committee claims that this court cannot properly inquire into the motives of the lawmakers in conducting
legislative investigations, much less cna it enjoin the Congress or any its regular and special commitees like what petitioners seek
from making inquiries in aid of legislation, under the doctrine of separation of powers, which obtaines in our present system of
government.
The contention is untenable. In Angara vs. Electoral Commission, 11 the Court held:
The separation of powers is a fundamental principle in our system of government. It obtains not hrough express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters wihtin its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government...
xxx xxx xxx
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The ovelapping and interlacing of
funcstions and duties between the several deaprtments, however, sometimes makes it hard to say just where the
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 departments is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the integral or constituent
units thereof.
xxx xxx xxx

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The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of
such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries; it does not assert any superiority over the other
departments; it does not inr eality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by tyhe Constitution to determine conflicting claims of authority under the Constitution and to
established for the parties in an actual controversy the rights which that instrument secures and guarantess to them.
This is in thruth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even the, this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass
upon questions of wisdom, justice or expediency of legislation. More thatn that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution
but also becuase the judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and legislative departments of the
government.
The "allocation of constituional boundaries" is a task that this Court must perfomr under the Constitution. Moreowever, as held in a
recent case, 12 "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with kthe applicability of the principle in appropriate cases." 13
The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope
and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid of legislation.
Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid
legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private
transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to
due process.
The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 14 Thus,
Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. 15
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of
legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to
due process and the right not to be compelled to testify against one's self.
The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection
with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the
Constitution in Congress and/or in the Seante alone.
As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within the jurisdiction of the legislative body making it, must be
material or necessary to the exervise of a power in it vested by the Constitution, such as to legislate or to expel a member.
Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any
Senator which in tis judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature
of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made.
A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various
newspapers on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of Companies." As a
consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had "taken over " the
FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis
Beltran on Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that theses repeated allegations of a
"takeover" on his (Lopa's) part of FMMC are baseless as they are malicious.
The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so
that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines,
considering the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group of Companies are
"baseless" and "malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows:
Mr. President, I rise this afternnon on a matter of personal privilege; the privilege being that I received, Mr. President,
a letter dated September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he denied categorically
that he has taken over the First Manila Management Group of Companies which includes SOLOIL Incorporated.

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xxx xxxx xxx

In answer to Mr. Lopa, I will quote pertinent portions from an Official Memorandum to the Presidential Commission of
Good Government written and signed by former Governor, now Congressman Jose Ramirez, in his capacity as head
of the PCGG Task Force for Region VIII. In his memorandum dated July 3, 1986, then Governor Ramirez stated that
when he and the members of his task force sought to serve a sequestration order on the management of SOLOIL in
Tanauan, Leyte, management officials assured him that relatives of the President of the Philippines were personally
discussing and representing SOLOIL so that the order of sequestration would be lifted and that the new owner was
Mr. Ricardo A. Lopa.
I will quote the pertinent portions in the Ramire's memorandum.
The first paragraph of the memorandum reads as follows and I quote, Mr. President:
"Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by management because
they said another representation was being made to this Commission for the ventual lifting of our
sequestrationorder. They even assured us that Mr. Ricardo Lopa and Peping Cojunangco were
personally discussing and representing SOLOIL, so the order of sequestration will finally be lifted.
While we attempted to carry on our order, management refused to cooperate and vehemently
turned down our request to make available to us the records of the company. In fact it was
obviously clear that they will meet us with forcethe moment we insist on doing normally our
assigned task. In view of the impending threat, and to avoid any untoward incident we decided to
temporarily suspend our work until there is a more categorical stand of this Commission in view of
the seemingly influential represetation being made by SOLOIL for us not to continue our work."
Another pertinent portion of the same memorandum is paragraph five, which reads as follows, and I quote Mr.
President:
"The President, Mr. Gamboa, this is, I understand, the President of SOLOIL, and the Plant
Superintendent, Mr. Jimenez including their chief counsel, Atty. Mandong Mendiola are now saying
that there have been divestment, and that the new owner is now Mr. Ricardo Lopa who according
to them, is the brother-in-law of the President. They even went further by telling us that even
Peping Cojuangco who we know is the brother of her excellency is also interested in the ownership
and management of SOLOIL. When he demanded for supporting papers which will indicate
aforesaid divestment, Messrs. Gamboa, Jimenez and Mendiola refused vehemently to submit
these papers to us, instead they said it will be submitted directly to this Commission. To our mind
their continuous dropping of names is not good for this Commission and even to the President if
our dersire is to achieve respectability and stability of the government."
The contents of the memorandum of then Governor and now Congressman Jose Ramirez were personally confirmed
by him in a news interview last September 7, 1988.
xxx xxxx xxx
Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in August 11, 1988 issue of the
newspaper Malaya headlined "On Alleged Takeover of Romualdez Firms."
Mr. Lopa states in the last paragraph of the published letter and I quote him:
12. As of this writing, the sales agreement is under review by the PCGG solely to determine the
appropriate price. The sale of these companies and our prior rigtht to requires them have never
been at issue.
Perhaps I could not make it any clearer to Mr. Lopa that I was not really making baseless and malicious statements.
Senator Enrile concluded his privilege speech in the following tenor:
Mr. President, it may be worthwhile for the Senate to look into the possible violation of the law in the case particularly
with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, Section 5 of which reads as follows
and I quote:
Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for nay relative, by
consanguinity or affinity, within the third civil degree, of the President of the Philippines, the VicePresident of the Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene directly or indirectly, in any business, transaction, contract or
application with the Government: Provided, that this section shall not apply to any person who prior
to the assumption of office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any transaction, contract or
application filed by him for approval of which is not discretionary on the part of the officials

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concerned but depends upon compliance with requisites provided by law, nor to any act lawfully
performed in an official capacity or in the exercise of a profession.
Mr. President, I have done duty to this Senate and to myself. I leave it to this august Body to make its own
conclusion.
Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into
a possible violation of Sec. 5 of RA No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices Act." I other words, the
purpose of the inquiry to be conducted by respondent Blue Ribbon commitee was to find out whether or not the relatives of President
Aquino, particularly Mr. ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to
Benjamin "Kokoy" Romualdez to the Lopaa Group. There appears to be, therefore, no intended legislation involved.
The Court is also not impressed with the respondent Committee's argument that the questioned inquiry is to be conducted pursuant to
Senate Resolution No. 212. The said resolution was introduced by Senator Jose D. Lina in view of the representaions made by leaders
of school youth, community groups and youth of non-governmental organizations to the Senate Committee on Youth and Sports
Development, to look into the charges against the PCGG filed by three (3) stockholders of Oriental petroleum, i.e., that it has adopted a
"get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm.The pertinent portion of Senate Resolution No.
212 reads as follows:
xxx xxx xxx
WHEREAS, recent developments have shown that no less than the Solicitor-General has stated that the PCGG
Chairman and at least three Commissioners should resign and that the agency should rid itself of "ineptness,
incompetence and corruption" and that the Sandiganbayan has reportedly ordered the PCGG to answer charges filed
by three stockholders of Oriental Petroleum that it has adopted a "get-rich-quick scheme" for its nominee-directors in
a sequestered oil exploration firm;
WHEREAS, leaders of school youth, community groups and youth of non-governmental organization had made
representations to the Senate Committee on Youth and Sports Development to look into the charges against the
PCGG since said agency is a symbol of the changes expected by the people when the EDSA revolution took place
and that the ill-gotten wealth to be recovered will fund priority projects which will benefit our people such as CARP,
free education in the elementary and secondary levels reforestration, and employment generation for rural and urban
workers;
WHEREAS, the government and the present leadeship must demonstrate in their public and private lives integrity,
honor and efficient management of government services lest our youth become disillusioned and lose hope and
return to an Idelogy and form of government which is repugnant to true freedom, democratic participation and human
rights: Now, therefore, be it.
Resolved by the Senate, That the activities of the Presidential Commission on Good Government be investigated by
the appropriate Committee in connection with the implementation of Section 26, Article XVIII of the Constitution. 19
Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3) stockholders of
Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the Constitution.
It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the
alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to
Senate Resolution No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the
herein petitioners are connected with the government but are private citizens.
It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation" becuase 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 ralatives of the
President or Mr. Ricardo Lopa had violated Section 5 RA 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. Besides, the Court may take judicial notice that Mr. Ricardo Lopa
died during the pendency of this case. In John T. Watkins vs. United States, 20 it was held held:
... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it
encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed
statutes. It includes surveys of defects in our social,economic, or political system for the purpose of enabling
Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption,
inefficiency or waste. But broad asis this power ofinquiry, it is not unlimited. There is no general authority to expose
the private affairs ofindividuals without justification in terms of the functions of congress. This was freely conceded by
Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are
functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to
and in furtherance of a legitimate task of Congress. Investigations conducted soly for the personal aggrandizement of
the investigators or to "punish" those investigated are indefensible. (emphasis supplied)
It can not be overlooked that when respondent Committee decide to conduct its investigation of the petitioners, the complaint in Civil
No. 0035 had already been filed with the Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action
against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy"

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Romualdez. Since the issues in said complaint had long been joined by the filing of petitioner's respective answers thereto, the issue
sought to be investigated by the respondent Commitee is one over which jurisdiction had been acquired by the Sandiganbayan. In
short, the issue had been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue
already before the Sandiganbayan would not only pose the possibility of conflicting judgments betweena legislative commitee and a
judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence
being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted.
In fine, for the rspondent Committee to probe and inquire into the same justiciable controversy already before the Sandiganbayan,
would be an encroachment into the exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United
States, 21 it was held that:
Broad as it is, the power is not, howevern, without limitations. Since congress may only investigate into those 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
mattes that are exclusively the concern of the Judiciary. Neither can it suplant the Executive in what exclusively
belongs to the Executive. ...
Now to another matter. It has been held that "a congressional committee's right to inquire is 'subject to all relevant limitations placed by
the Constitution on governmental action,' including "'the relevant limitations of the Bill of Rights'." 22
In another case
... the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical
element is the exeistence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures
from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a
public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by
the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroah upon an individual's
right to privacy nor abridge his liberty of speech, press, religion or assembly. 23
One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. 24 Thir right constured as
the right to remain completely silent may be availed of by the accused in a criminal case; but kit may be invoked by other witnesses
only as questions are asked of them.
This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of Appeals, et al. 25 thus
Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness
may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating
answer is hot at him, an accused may altother refuse to take the witness stand and refuse to answer any all
questions.
Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a
criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran, 26the Court reiterated the doctrine in Cabal vs.
Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal
proceedings but also in all other types of suit
It was held that:
We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to
take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question
which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the characeter of
the suit involved but the nature of the proceedings that controls. The privilege has consistenly been held to extend to
all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness,
whether a party or not.
We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to
appear, testify and produce evidenc before it, it is only becuase we hold that the questioned inquiry is not in aid of legislation and, if
pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government,
ordained by the Constitution.
WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the circumtance that petitioners are presently
impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated
inquiry before the respondet Committee, the respondent Senate Blue Ribbon Committee is hereby enjoined from compelling the
petitioners and intervenor to testify before it and produce evidence at the said inquiry.
SO ORDERED.
Fernan, C.J., Melencio-Herrera, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.

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Separate Opinions

PARAS, J., concurring:

I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan
GUTIERREZ, JR., J., dissenting:
I regret that I must express a strong dissent the Court's opinion in this case.
The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the
Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a
legislative prerogative investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real
purpose.
The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment
for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses
practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and
secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to
the Lopa Group at the outset of the new dispensation will not result in useful legislation?
The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v.
Nazareno, 87 Phil. 29 (1950)
Our form of government being patterned after the American system the framers of our Constitution having drawn
largely from American institutions and practices we can, in this case, properly draw also from American precedents
in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.
Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively,
such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with
process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change: and where the legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess it. ... (At p. 45)
The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now
expressed as follows:
Sec. 21 The Senate or the House of Representatives or may of its respective committees may conduct inquiries in
aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the
affirmative, may give us cause to intervene.
First, is the matter being investigated one on which no valid legislation could possibly be enacted?
Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of
government?
And third, is Congress violating the basic liberties of an individual?
The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed inKilbourn v. Thompson,
103 U.S. 168 (1880).
The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and
Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused
to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for
forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor.
Speaking through Justice Miller, the Court ruled:
The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress
on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives

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or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co.,
or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the
House of Representatives had no power or authority in the matter more than any other equal number of gentlemen
interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the
subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388)
The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated
separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and
social justice legislation has reversed itslef on these and many other questions.
In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution
directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the
action of the Senate was with a legitimate object.
... Plainly the subject was one on which legislation could be had and would be materially aided by the information
which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the
Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to
regulation by congressional legislation, and that the department is maintained and its activitites are carried on under
such appropriations as in the judgment of Congress are needed from year to year.
The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think
the subject was the real object. An express avowal of the object would have been better; but in view of the particular
subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615,
where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that
state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public
office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions
under the control of the State are ordered to be investigated, it is generally with the view of some legislative action
respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that
the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no
right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)
The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative
purpose was conclusive on the Courts:
Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of
legislation and that fact is establshed for courts.
And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal
courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968]
The Court cannot probe into the motives of the members of the Congress.
Barsky v. United States, 167 F. 2d 241 [1948]
The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information
derived from such inquiry.
The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry,
since invalid legislation might ensue from any inquiry.
United States v. Shelton, 148 F. Supp. 926 [1957]
The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in
furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in
contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose.
This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings
must result in legislation or recommendations for legislation.
United States v. Deutch (147 F. Supp. 89 (1956)
Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being
the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however,
to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure
information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that
Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure
information in order to determine whether or not to legislate on a particular subject matter on which it is within its
constitutional powers to act. (Emphasis Supplied)

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The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional
Commission.
The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction
of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United
States, where legislative power is shared by the United State Congress and the states legislatures, the totality of
legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to
define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not
necessary that every question propounded to a witness must be material to a proposed legislation. "In other words,
the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its
indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for
legislative action and form and character of the action itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not
by a fraction of such information elicited from a single question. (Id., at 48)
On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase
contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad
legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103
U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957]
labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed.,
page 132).
Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may
potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is
a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the
need for remedial legislation becomes more imperative.
Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary.
The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined
conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this
"umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions
peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything
legitimately neede to exercise it.
It may be argued that the investigation into the Romualdez Lopa transactions is more appropriate for the Department of Justice and
the judiciary. This argument misses the point of legislative inquiry.
The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to
punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may
not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon
Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But
certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be
remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to
investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose.
In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the
United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on
one hand and legislation on the other, are not mutually exclusive. They may complement each other.
... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the
prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent
disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may
also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced
under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in
respect of legislative action... (Sinclair v. United States, Id.at page 698).
In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts
indicating that a witness was linked to unlawful intestate gambling.
The power of a congressional committee to investigate matters cannot be challenged on the ground that the
Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre
the genral subject of investigation is one concerning which Congress can legislate, and the information sought might
aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed...
I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the
progress of legislative investigations.
The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses.

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The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected.
It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation
of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected.
What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing
charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question
is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely.
Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where
an invocation of individual liberties is made.
In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the TambobongBuenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he
was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite
visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged
and the situation in Congress had changed was he released.
As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The
allegation that their basic rights are vilolated is not only without basis but is also premature.
I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the
Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to
recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are
not only private but also secret and hidden.
I therefore, vote to DISMISS the petition.
Narvasa, J., dissents.
CRUZ, J., dissenting:
I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not
in aid of legislation.
In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex
rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs.
Daugherty, 273 U.S. 135). As far as I know, that is still the rule today.
More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the
legislature and even as expressly limited by the Constitution.
The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the
Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled
that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the
expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law
may be useful in the drafting of amendatory legislation to correct or strengthen that law.
The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated
legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according
to McGrain v. Daugherty, supra:
Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation.
Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary
that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain
data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire
proceedings or one in which legislation could be had and would be materially aided by the information which the
investigation was calculated to elicit. An express avowal of the object would be better, but such is not
indispensable. (Emphasis supplied).
The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending
against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating
questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the
stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them.
They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against
self-incrimination only when and as the incriminating question is propounded.

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While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive
departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange
the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion,
which I do not see in the case at bar.
Guided by the presumption and the facts, I vote to DISMISS the petition.
Narvasa, J., dissents.

# Separate Opinions
PARAS, J., concurring:
I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan
GUTIERREZ, JR., J., dissenting:
I regret that I must express a strong dissent the Court's opinion in this case.
The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the
Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a
legislative prerogative investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real
purpose.
The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment
for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses
practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and
secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to
the Lopa Group at the outset of the new dispensation will not result in useful legislation?
The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v.
Nazareno, 87 Phil. 29 (1950)
Our form of government being patterned after the American system the framers of our Constitution having drawn
largely from American institutions and practices we can, in this case, properly draw also from American precedents
in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.
Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively,
such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with
process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change: and where the legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess it. ... (At p. 45)
The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now
expressed as follows:
Sec. 21 The Senate or the House of Representatives or may of its respective committees may conduct inquiries in
aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the
affirmative, may give us cause to intervene.
First, is the matter being investigated one on which no valid legislation could possibly be enacted?
Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of
government?
And third, is Congress violating the basic liberties of an individual?
The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed inKilbourn v. Thompson,
103 U.S. 168 (1880).

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The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and
Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused
to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for
forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor.
Speaking through Justice Miller, the Court ruled:
The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress
on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives
or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co.,
or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the
House of Representatives had no power or authority in the matter more than any other equal number of gentlemen
interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the
subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388)
The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated
separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and
social justice legislation has reversed itslef on these and many other questions.
In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution
directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the
action of the Senate was with a legitimate object.
... Plainly the subject was one on which legislation could be had and would be materially aided by the information
which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the
Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to
regulation by congressional legislation, and that the department is maintained and its activitites are carried on under
such appropriations as in the judgment of Congress are needed from year to year.
The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think
the subject was the real object. An express avowal of the object would have been better; but in view of the particular
subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615,
where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that
state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public
office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions
under the control of the State are ordered to be investigated, it is generally with the view of some legislative action
respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that
the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no
right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)
The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative
purpose was conclusive on the Courts:
Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of
legislation and that fact is establshed for courts.
And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal
courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968]
The Court cannot probe into the motives of the members of the Congress.
Barsky v. United States, 167 F. 2d 241 [1948]
The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information
derived from such inquiry.
The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry,
since invalid legislation might ensue from any inquiry.
United States v. Shelton, 148 F. Supp. 926 [1957]
The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in
furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in
contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose.
This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings
must result in legislation or recommendations for legislation.
United States v. Deutch (147 F. Supp. 89 (1956)

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Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being
the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however,
to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure
information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that
Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure
information in order to determine whether or not to legislate on a particular subject matter on which it is within its
constitutional powers to act. (Emphasis Supplied)
The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional
Commission.
The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction
of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United
States, where legislative power is shared by the United State Congress and the states legislatures, the totality of
legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to
define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not
necessary that every question propounded to a witness must be material to a proposed legislation. "In other words,
the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its
indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for
legislative action and form and character of the action itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not
by a fraction of such information elicited from a single question. (Id., at 48)
On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase
contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad
legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103
U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957]
labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed.,
page 132).
Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may
potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is
a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the
need for remedial legislation becomes more imperative.
Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary.
The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined
conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this
"umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions
peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything
legitimately neede to exercise it.
It may be argued that the investigation into the Romualdez Lopa transactions is more appropriate for the Department of Justice and
the judiciary. This argument misses the point of legislative inquiry.
The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to
punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may
not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon
Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But
certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be
remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to
investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose.
In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the
United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on
one hand and legislation on the other, are not mutually exclusive. They may complement each other.
... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the
prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent
disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may
also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced
under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in
respect of legislative action... (Sinclair v. United States, Id.at page 698).
In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts
indicating that a witness was linked to unlawful intestate gambling.
The power of a congressional committee to investigate matters cannot be challenged on the ground that the
Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre

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the genral subject of investigation is one concerning which Congress can legislate, and the information sought might
aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed...
I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the
progress of legislative investigations.
The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses.
The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected.
It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation
of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected.
What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing
charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question
is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely.
Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where
an invocation of individual liberties is made.
In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the TambobongBuenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he
was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite
visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged
and the situation in Congress had changed was he released.
As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The
allegation that their basic rights are vilolated is not only without basis but is also premature.
I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the
Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to
recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are
not only private but also secret and hidden.
I therefore, vote to DISMISS the petition.
Narvasa, J., dissents.
CRUZ, J., dissenting:
I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not
in aid of legislation.
In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex
rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs.
Daugherty, 273 U.S. 135). As far as I know, that is still the rule today.
More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the
legislature and even as expressly limited by the Constitution.
The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the
Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled
that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the
expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law
may be useful in the drafting of amendatory legislation to correct or strengthen that law.
The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated
legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according
to McGrain v. Daugherty, supra:
Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation.
Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary
that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain
data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire
proceedings or one in which legislation could be had and would be materially aided by the information which the
investigation was calculated to elicit. An express avowal of the object would be better, but such is not
indispensable. (Emphasis supplied).

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The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending
against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating
questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the
stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them.
They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against
self-incrimination only when and as the incriminating question is propounded.
While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive
departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange
the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion,
which I do not see in the case at bar.
Guided by the presumption and the facts, I vote to DISMISS the petition.
Narvasa, J., dissents.

EN BANC

G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115525 October 30, 1995
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY
VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR
REPRESENTATIVES, respondents.
G.R. No. 115543 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE
AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 October 30, 1995
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE
JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his
capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 October 30, 1995
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO,
EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO,
RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., and PHILIPPINE BIBLE SOCIETY,
INC. and WIGBERTO TAADA,petitioners,
vs.

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THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE
COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 October 30, 1995
PHILIPPINE AIRLINES, INC., petitioner,
vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115873 October 30, 1995
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in
his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of
Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal
Revenue; and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, respondents.
RESOLUTION

MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the petitions filed in these cases for the declaration of
unconstitutionality of R.A. No. 7716, otherwise known as the Expanded Value-Added Tax Law. The motions, of which there are 10 in all,
have been filed by the several petitioners in these cases, with the exception of the Philippine Educational Publishers Association, Inc.
and the Association of Philippine Booksellers, petitioners in G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the Philippine Airlines, Inc., petitioner in
G.R. No. 115852, and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No.
115525, each filed a reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines
(PAL), Roco, and Chamber of Real Estate and Builders Association (CREBA)) reiterate previous claims made by them that R.A. No.
7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, 24 of the Constitution. Although they admit
that H. No. 11197 was filed in the House of Representatives where it passed three readings and that afterward it was sent to the Senate
where after first reading it was referred to the Senate Ways and Means Committee, they complain that the Senate did not pass it on
second and third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it approved on May 24, 1994.
Petitioner Tolentino adds that what the Senate committee should have done was to amend H. No. 11197 by striking out the text of the
bill and substituting it with the text of S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just
becomes the text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment to a House revenue bill by
enacting its own version of a revenue bill. On at least two occasions during the Eighth Congress, the Senate passed its own version of
revenue bills, which, in consolidation with House bills earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY EXTENDING FROM FIVE (5) YEARS TO
TEN YEARS THE PERIOD FOR TAX AND DUTY EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by
the President on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the House on January 29,
1992, and S. No. 1920, which was approved by the Senate on February 3, 1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD TO ANY FILIPINO ATHLETE
WINNING A MEDAL IN OLYMPIC GAMES) which was approved by the President on May 22, 1992. This Act is a consolidation of H.
No. 22232, which was approved by the House of Representatives on August 2, 1989, and S. No. 807, which was approved by the
Senate on October 21, 1991.

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On the other hand, the Ninth Congress passed revenue laws which were also the result of the consolidation of House and Senate bills.
These are the following, with indications of the dates on which the laws were approved by the President and dates the separate bills of
the two chambers of Congress were respectively passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS PURPOSE THE PERTINENT
SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE PAYMENT OF THE
VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT
REVENUE, AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE
CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992
Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE THE PLACE FOR
PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24, 1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS, INSTRUMENTALITIES
OR AGENCIES INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO
DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS
PAYMENT FOR THE PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO DECLARE DIVIDENDS
UNDER CERTAIN CONDITIONS TO THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November
9, 1993)
House Bill No. 11024, November 3, 1993
Senate Bill No. 1168, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE DOCUMENTARY STAMP
TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE,
AS AMENDED, ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23,
1993)
House Bill No. 7789, May 31, 1993
Senate Bill No. 1330, November 18, 1993
7. R.A. NO. 7717

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AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF STOCK LISTED AND
TRADED THROUGH THE LOCAL STOCK EXCHANGE OR THROUGH INITIAL PUBLIC OFFERING, AMENDING
FOR THE PURPOSE THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A NEW
SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5, 1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of its power to propose amendments to
bills required to originate in the House, passed its own version of a House revenue measure. It is noteworthy that, in the particular case
of S. No. 1630, petitioners Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings.
On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino, concerns a mere matter of form. Petitioner
has not shown what substantial difference it would make if, as the Senate actually did in this case, a separate bill like S. No. 1630 is
instead enacted as a substitute measure, "taking into Consideration . . . H.B. 11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
68. Not more than one amendment to the original amendment shall be considered.
No amendment by substitution shall be entertained unless the text thereof is submitted in writing.
Any of said amendments may be withdrawn before a vote is taken thereon.
69. No amendment which seeks the inclusion of a legislative provision foreign to the subject matter of a bill (rider)
shall be entertained.
xxx xxx xxx
70-A. A bill or resolution shall not be amended by substituting it with another which covers a subject distinct from
that proposed in the original bill or resolution. (emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate possesses less power than the U.S.
Senate because of textual differences between constitutional provisions giving them the power to propose or concur with amendments.
Art. I, 7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur
with amendments as on other Bills.
Art. VI, 24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and
private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with
amendments.
The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the phrase "as on other Bills" in the
American version, according to petitioners, shows the intention of the framers of our Constitution to restrict the Senate's power to
propose amendments to revenue bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and
"the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be like other bills but must be treated as
a special kind."
The history of this provision does not support this contention. The supposed indicia of constitutional intent are nothing but the relics of
an unsuccessful attempt to limit the power of the Senate. It will be recalled that the 1935 Constitution originally provided for a
unicameral National Assembly. When it was decided in 1939 to change to a bicameral legislature, it became necessary to provide for
the procedure for lawmaking by the Senate and the House of Representatives. The work of proposing amendments to the Constitution
was done by the National Assembly, acting as a constituent assembly, some of whose members, jealous of preserving the Assembly's
lawmaking powers, sought to curtail the powers of the proposed Senate. Accordingly they proposed the following provision:
All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills shall originate
exclusively in the Assembly, but the Senate may propose or concur with amendments. In case of disapproval by the

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Senate of any such bills, the Assembly may repass the same by a two-thirds vote of all its members, and thereupon,
the bill so repassed shall be deemed enacted and may be submitted to the President for corresponding action. In the
event that the Senate should fail to finally act on any such bills, the Assembly may, after thirty days from the opening
of the next regular session of the same legislative term, reapprove the same with a vote of two-thirds of all the
members of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted to the
President for corresponding action.
The special committee on the revision of laws of the Second National Assembly vetoed the proposal. It deleted everything after the first
sentence. As rewritten, the proposal was approved by the National Assembly and embodied in Resolution No. 38, as amended by
Resolution No. 73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the
people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, 18 (2) of the 1935 Constitution, from which Art. VI, 24 of the present Constitution was derived. It explains
why the word "exclusively" was added to the American text from which the framers of the Philippine Constitution borrowed and why the
phrase "as on other Bills" was not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments
must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills are required to originate
exclusively in the House of Representatives, the Senate cannot enact revenue measures of its own without such bills. After a revenue
bill is passed and sent over to it by the House, however, the Senate certainly can pass its own version on the same subject matter. This
follows from the coequality of the two chambers of Congress.
That this is also the understanding of book authors of the scope of the Senate's power to concur is clear from the following
commentaries:
The power of the Senate to propose or concur with amendments is apparently without restriction. It would seem that
by virtue of this power, the Senate can practically re-write a bill required to come from the House and leave only a
trace of the original bill. For example, a general revenue bill passed by the lower house of the United States
Congress contained provisions for the imposition of an inheritance tax . This was changed by the Senate into a
corporation tax. The amending authority of the Senate was declared by the United States Supreme Court to be
sufficiently broad to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961))
The above-mentioned bills are supposed to be initiated by the House of Representatives because it is more
numerous in membership and therefore also more representative of the people. Moreover, its members are
presumed to be more familiar with the needs of the country in regard to the enactment of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of its power to propose or concur with amendments to
the bills initiated by the House of Representatives. Thus, in one case, a bill introduced in the U.S. House of
Representatives was changed by the Senate to make a proposed inheritance tax a corporation tax. It is also
accepted practice for the Senate to introduce what is known as an amendment by substitution, which may entirely
replace the bill initiated in the House of Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, 24 provides that all appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills must "originate exclusively in the House of Representatives," it also adds, "but the Senate may propose or
concur with amendments." In the exercise of this power, the Senate may propose an entirely new bill as a substitute measure. As
petitioner Tolentino states in a high school text, a committee to which a bill is referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding sections or altering its
language; (3) to make and endorse an entirely new bill as a substitute, in which case it will be known as a committee
bill; or (4) to make no report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to originate in the House by prescribing that the number of the
House bill and its other parts up to the enacting clause must be preserved although the text of the Senate amendment may be
incorporated in place of the original body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S.
No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that S. No. 1630 is an independent and
distinct bill. Hence their repeated references to its certification that it was passed by the Senate "in substitution of S.B. No. 1129, taking
into consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there is something substantially different between the reference
to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude that R.A. No. 7716 originated both in the House
and in the Senate and that it is the product of two "half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both
houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere amendments of the corresponding
provisions of H. No. 11197. The very tabular comparison of the provisions of H. No. 11197 and S. No. 1630 attached as Supplement A

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to the basic petition of petitioner Tolentino, while showing differences between the two bills, at the same time indicates that the
provisions of the Senate bill were precisely intended to be amendments to the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was a mere amendment of the House
bill, H. No. 11197 in its original form did not have to pass the Senate on second and three readings. It was enough that after it was
passed on first reading it was referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be
passed by the House of Representatives before the two bills could be referred to the Conference Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When the House bill and Senate bill,
which became R.A. No. 1405 (Act prohibiting the disclosure of bank deposits), were referred to a conference committee, the question
was raised whether the two bills could be the subject of such conference, considering that the bill from one house had not been passed
by the other and vice versa. As Congressman Duran put the question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is passed by the House but not
passed by the Senate, and a Senate bill of a similar nature is passed in the Senate but never passed in the House,
can the two bills be the subject of a conference, and can a law be enacted from these two bills? I understand that the
Senate bill in this particular instance does not refer to investments in government securities, whereas the bill in the
House, which was introduced by the Speaker, covers two subject matters: not only investigation of deposits in banks
but also investigation of investments in government securities. Now, since the two bills differ in their subject matter, I
believe that no law can be enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is precisely in cases like this where a
conference should be had. If the House bill had been approved by the Senate, there would have been no need of a
conference; but precisely because the Senate passed another bill on the same subject matter, the conference
committee had to be created, and we are now considering the report of that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct and unrelated measures also
accounts for the petitioners' (Kilosbayan's and PAL's) contention that because the President separately certified to the need for the
immediate enactment of these measures, his certification was ineffectual and void. The certification had to be made of the version of
the same revenue bill which at the momentwas being considered. Otherwise, to follow petitioners' theory, it would be necessary for the
President to certify as many bills as are presented in a house of Congress even though the bills are merely versions of the bill he has
already certified. It is enough that he certifies the bill which, at the time he makes the certification, is under consideration. Since on
March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified. For that matter on June 1, 1993 the
President had earlier certified H. No. 9210 for immediate enactment because it was the one which at that time was being considered by
the House. This bill was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained in the main decision that the phrase "except when the
President certifies to the necessity of its immediate enactment, etc." in Art. VI, 26 (2) qualifies not only the requirement that "printed
copies [of a bill] in its final form [must be] distributed to the members three days before its passage" but also the requirement that
before a bill can become a law it must have passed "three readings on separate days." There is not only textual support for such
construction but historical basis as well.
Art. VI, 21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been printed and copies thereof in its final form
furnished its Members at least three calendar days prior to its passage, except when the President shall have
certified to the necessity of its immediate enactment. Upon the last reading of a bill, no amendment thereof shall be
allowed and the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered on
the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, 19 (2):
(2) No bill shall become a law unless it has passed three readings on separate days, and printed copies thereof in its
final form have been distributed to the Members three days before its passage, except when the Prime Minister
certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of
a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
This provision of the 1973 document, with slight modification, was adopted in Art. VI, 26 (2) of the present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and
printed copies thereof in its final form have been distributed to its Members three days before its passage, except
when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency.
Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeasand nays entered in the Journal.

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The exception is based on the prudential consideration that if in all cases three readings on separate days are required and a bill has to
be printed in final form before it can be passed, the need for a law may be rendered academic by the occurrence of the very emergency
or public calamity which it is meant to address.
Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a country like the Philippines where budget
deficit is a chronic condition. Even if this were the case, an enormous budget deficit does not make the need for R.A. No. 7716 any less
urgent or the situation calling for its enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in these cases) believed that there was an urgent need for
consideration of S. No. 1630, because they responded to the call of the President by voting on the bill on second and third readings on
the same day. While the judicial department is not bound by the Senate's acceptance of the President's certification, the respect due
coequal departments of the government in matters committed to them by the Constitution and the absence of a clear showing of grave
abuse of discretion caution a stay of the judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it was discussed for six days. Only
its distribution in advance in its final printed form was actually dispensed with by holding the voting on second and third readings on the
same day (March 24, 1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second reading and
its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on third reading.
The purpose for which three readings on separate days is required is said to be two-fold: (1) to inform the members of Congress of
what they must vote on and (2) to give them notice that a measure is progressing through the enacting process, thus enabling them
and others interested in the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION 10.04, p. 282 (1972)). These purposes were substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the Movement of Attorneys for Brotherhood,
Integrity and Nationalism, Inc. (MABINI)) that in violation of the constitutional policy of full public disclosure and the people's right to
know (Art. II, 28 and Art. III, 7) the Conference Committee met for two days in executive session with only the conferees present.
As pointed out in our main decision, even in the United States it was customary to hold such sessions with only the conferees and their
staffs in attendance and it was only in 1975 when a new rule was adopted requiring open sessions. Unlike its American counterpart, the
Philippine Congress has not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least staff members were present. These
were staff members of the Senators and Congressmen, however, who may be presumed to be their confidential men, not
stenographers as in this case who on the last two days of the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for claiming that even in secret diplomatic
negotiations involving state interests, conferees keep notes of their meetings. Above all, the public's right to know was fully served
because the Conference Committee in this case submitted a report showing the changes made on the differing versions of the House
and the Senate.
Petitioners cite the rules of both houses which provide that conference committee reports must contain "a detailed, sufficiently explicit
statement of the changes in or other amendments." These changes are shown in the bill attached to the Conference Committee Report.
The members of both houses could thus ascertain what changes had been made in the original bills without the need of a statement
detailing the changes.
The same question now presented was raised when the bill which became R.A. No. 1400 (Land Reform Act of 1955) was reported by
the Conference Committee. Congressman Bengzon raised a point of order. He said:
MR. BENGZON. My point of order is that it is out of order to consider the report of the conference committee
regarding House Bill No. 2557 by reason of the provision of Section 11, Article XII, of the Rules of this House which
provides specifically that the conference report must be accompanied by a detailed statement of the effects of the
amendment on the bill of the House. This conference committee report is not accompanied by that detailed
statement, Mr. Speaker. Therefore it is out of order to consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with the point of order raised by the
gentleman from Pangasinan.
There is no question about the provision of the Rule cited by the gentleman from Pangasinan, butthis provision
applies to those cases where only portions of the bill have been amended. In this case before us an entire bill is
presented; therefore, it can be easily seen from the reading of the bill what the provisions are. Besides, this
procedure has been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the provisions of the Rules, and
the reason for the requirement in the provision cited by the gentleman from Pangasinan is when there are only certain
words or phrases inserted in or deleted from the provisions of the bill included in the conference report, and we
cannot understand what those words and phrases mean and their relation to the bill. In that case, it is necessary to

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make a detailed statement on how those words and phrases will affect the bill as a whole; but when the entire bill
itself is copied verbatim in the conference report, that is not necessary. So when the reason for the Rule does not
exist, the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that when the ruling was appealed, it was upheld by viva
voce and when a division of the House was called, it was sustained by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new provisions as long as these are germane to the subject
of the conference. As this Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then
Justice Cruz, the jurisdiction of the conference committee is not limited to resolving differences between the Senate and the House. It
may propose an entirely new provision. What is important is that its report is subsequently approved by the respective houses of
Congress. This Court ruled that it would not entertain allegations that, because new provisions had been added by the conference
committee, there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no amendment thereto shall
be allowed."
Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon
the last reading of the bill that eventually became R.A. No. 7354 and that copiesthereof in its final form were not
distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the
measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound by such
official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming
courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the Philippines in a 1979 study:
Conference committees may be of two types: free or instructed. These committees may be given instructions by their
parent bodies or they may be left without instructions. Normally the conference committees are without instructions,
and this is why they are often critically referred to as "the little legislatures." Once bills have been sent to them, the
conferees have almost unlimited authority to change the clauses of the bills and in fact sometimes introduce new
measures that were not in the original legislation. No minutes are kept, and members' activities on conference
committees are difficult to determine. One congressman known for his idealism put it this way: "I killed a bill on export
incentives for my interest group [copra] in the conference committee but I could not have done so anywhere else."
The conference committee submits a report to both houses, and usually it is accepted. If the report is not accepted,
then the committee is discharged and new members are appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES: A COMPARATIVE
ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).
In citing this study, we pass no judgment on the methods of conference committees. We cite it only to say that conference committees
here are no different from their counterparts in the United States whose vast powers we noted in Philippine Judges Association
v. Prado, supra. At all events, under Art. VI, 16(3) each house has the power "to determine the rules of its proceedings," including
those of its committees. Any meaningful change in the method and procedures of Congress or its committees must therefore be sought
in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, 26 (1) of the Constitution which
provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." PAL
contends that the amendment of its franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law.
Pursuant to 13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all other taxes, duties, royalties,
registration, license and other fees and charges of any kind, nature, or description, imposed, levied, established, assessed or collected
by any municipal, city, provincial or national authority or government agency, now or in the future."
PAL was exempted from the payment of the VAT along with other entities by 103 of the National Internal Revenue Code, which
provides as follows:
103. Exempt transactions. The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international agreements to which the Philippines is a
signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending 103, as follows:
103. Exempt transactions. The following shall be exempt from the value-added tax:

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xxx xxx xxx

(q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529,
972, 1491, 1590. . . .
The amendment of 103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND
ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE
RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE
AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES," Congress thereby
clearly expresses its intention to amend any provision of the NIRC which stands in the way of accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific reference to P.D. No. 1590. It is
unnecessary to do this in order to comply with the constitutional requirement, since it is already stated in the title that the law seeks to
amend the pertinent provisions of the NIRC, among which is 103(q), in order to widen the base of the VAT. Actually, it is the bill which
becomes a law that is required to express in its title the subject of legislation. The titles of H. No. 11197 and S. No. 1630 in fact
specifically referred to 103 of the NIRC as among the provisions sought to be amended. We are satisfied that sufficient notice had
been given of the pendency of these bills in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was rejected. R.A. No. 7354 is entitled
AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES,
PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It contained a
provision repealing all franking privileges. It was contended that the withdrawal of franking privileges was not expressed in the title of
the law. In holding that there was sufficient description of the subject of the law in its title, including the repeal of franking privileges, this
Court held:
To require every end and means necessary for the accomplishment of the general objectives of the statute to be
expressed in its title would not only be unreasonable but would actually render legislation impossible. [Cooley,
Constitutional Limitations, 8th Ed., p. 297] As has been correctly explained:
The details of a legislative act need not be specifically stated in its title, but matter germane to the
subject as expressed in the title, and adopted to the accomplishment of the object in view, may
properly be included in the act. Thus, it is proper to create in the same act the machinery by which
the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the
way of its execution. If such matters are properly connected with the subject as expressed in the
title, it is unnecessary that they should also have special mention in the title. (Southern Pac. Co. v.
Bartine, 170 Fed. 725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the press is not exempt from the taxing
power of the State and that what the constitutional guarantee of free press prohibits are laws which single out the press or target a
group belonging to the press for special treatment or which in any way discriminate against the press on the basis of the content of the
publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while maintaining those granted to others, the
law discriminates against the press. At any rate, it is averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is
unconstitutional."
With respect to the first contention, it would suffice to say that since the law granted the press a privilege, the law could take back the
privilege anytime without offense to the Constitution. The reason is simple: by granting exemptions, the State does not forever waive
the exercise of its sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to which other businesses have long
ago been subject. It is thus different from the tax involved in the cases invoked by the PPI. The license tax in Grosjean v. American
Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts only
of newspapers whose weekly circulation was over 20,000, with the result that the tax applied only to 13 out of 124 publishers in
Louisiana. These large papers were critical of Senator Huey Long who controlled the state legislature which enacted the license tax.
The censorial motivation for the law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax
was found to be discriminatory because although it could have been made liable for the sales tax or, in lieu thereof, for the use tax on
the privilege of using, storing or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes. It
was, however, later made to pay a specialuse tax on the cost of paper and ink which made these items "the only items subject to the

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use tax that were component of goods to be sold at retail." The U.S. Supreme Court held that the differential treatment of the press
"suggests that the goal of regulation is not related to suppression of expression, and such goal is presumptively unconstitutional." It
would therefore appear that even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely and unqualifiedly" by R.A. No.
7716. Other exemptions from the VAT, such as those previously granted to PAL, petroleum concessionaires, enterprises registered with
the Export Processing Zone Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially
withdrawn, in an effort to broaden the base of the tax.
The PPI says that the discriminatory treatment of the press is highlighted by the fact that transactions, which are profit oriented,
continue to enjoy exemption under R.A. No. 7716. An enumeration of some of these transactions will suffice to show that by and large
this is not so and that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are granted, in some
cases, to encourage agricultural production and, in other cases, for the personal benefit of the end-user rather than for profit. The
exempt transactions are:
(a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton
seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and
goods or services to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock, poultry feeds,
fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of citizens returning to the
Philippines) or for professional use, like professional instruments and implements, by persons coming to the
Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products
subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employeremployee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
The PPI asserts that it does not really matter that the law does not discriminate against the press because "even nondiscriminatory
taxation on constitutionally guaranteed freedom is unconstitutional." PPI cites in support of this assertion the following statement
in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not
so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges
protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them
all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of
religion are in preferred position.
The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for regulation. Its imposition on the press
is unconstitutional because it lays a prior restraint on the exercise of its right. Hence, although its application to others, such those
selling goods, is valid, its application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with the latter's
sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put it, "it is one thing to impose a tax on income
or property of a preacher. It is quite another thing to exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386 (1957) which invalidated a city
ordinance requiring a business license fee on those engaged in the sale of general merchandise. It was held that the tax could not be
imposed on the sale of bibles by the American Bible Society without restraining the free exercise of its right to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a constitutional right. It is
imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange of services and the lease of properties
purely for revenue purposes. To subject the press to its payment is not to burden the exercise of its right any more than to make the
press pay income tax or subject it to general regulation is not to violate its freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds derived from the sales are used to
subsidize the cost of printing copies which are given free to those who cannot afford to pay so that to tax the sales would be to increase
the price, while reducing the volume of sale. Granting that to be the case, the resulting burden on the exercise of religious freedom is so
incidental as to make it difficult to differentiate it from any other economic imposition that might make the right to disseminate religious

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doctrines costly. Otherwise, to follow the petitioner's argument, to increase the tax on the sale of vestments would be to lay an
impermissible burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by 107 of the NIRC, as amended by 7 of R.A. No. 7716, although fixed
in amount, is really just to pay for the expenses of registration and enforcement of provisions such as those relating to accounting in
108 of the NIRC. That the PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the payment of
this fee because it also sells some copies. At any rate whether the PBS is liable for the VAT must be decided in concrete cases, in the
event it is assessed this tax by the Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses and the rule on taxation. CREBA asserts that R.A. No.
7716 (1) impairs the obligations of contracts, (2) classifies transactions as covered or exempt without reasonable basis and (3) violates
the rule that taxes should be uniform and equitable and that Congress shall "evolve a progressive system of taxation."
With respect to the first contention, it is claimed that the application of the tax to existing contracts of the sale of real property by
installment or on deferred payment basis would result in substantial increases in the monthly amortizations to be paid because of the
10% VAT. The additional amount, it is pointed out, is something that the buyer did not anticipate at the time he entered into the contract.
The short answer to this is the one given by this Court in an early case: "Authorities from numerous sources are cited by the plaintiffs,
but none of them show that a lawful tax on a new subject, or an increased tax on an old one, interferes with a contract or impairs its
obligation, within the meaning of the Constitution. Even though such taxation may affect particular contracts, as it may increase the debt
of one person and lessen the security of another, or may impose additional burdens upon one class and release the burdens of
another, still the tax must be paid unless prohibited by the Constitution, nor can it be said that it impairs the obligation of any existing
contract in its true legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not only
existing laws but also "the reservation of the essential attributes of sovereignty, is . . . read into contracts as a postulate of the legal
order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts must be understood as having been
made in reference to the possible exercise of the rightful authority of the government and no obligation of contract can extend to the
defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while 4 of R.A. No. 7716 exempts such transactions as the sale of agricultural products, food items,
petroleum, and medical and veterinary services, it grants no exemption on the sale of real property which is equally essential. The sale
of real property for socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate transactions of "the
less poor," i.e., the middle class, who are equally homeless, should likewise be exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods and services was already exempt
under 103, pars. (b) (d) (1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716
granted exemption to these transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a difference
between the "homeless poor" and the "homeless less poor" in the example given by petitioner, because the second group or middle
class can afford to rent houses in the meantime that they cannot yet buy their own homes. The two social classes are thus differently
situated in life. "It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held
that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.'"
(Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA
654, 663 (1984); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, 28(1) which provides that "The rule of
taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of property of the same class be taxed at the same rate. The
taxing power has the authority to make reasonable and natural classifications for purposes of taxation. To satisfy this requirement it is
enough that the statute or ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of Baguio v.
De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A. No. 7716 merely expands the base
of the tax. The validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
163 SCRA 383 (1988) on grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory, unjust
and regressive in violation of Art. VI, 28(1) of the Constitution." (At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public, which are not
exempt, at the constant rate of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons engaged in
business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-sari stores are
consequently exempt from its application. Likewise exempt from the tax are sales of farm and marine products, so
that the costs of basic food and other necessities, spared as they are from the incidence of the VAT, are expected to
be relatively lower and within the reach of the general public.
(At 382-383)

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The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of the Philippines, Inc. (CUP), while
petitioner Juan T. David argues that the law contravenes the mandate of Congress to provide for a progressive system of taxation
because the law imposes a flat rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are regressive. What it simply provides is
that Congress shall "evolve a progressive system of taxation." The constitutional provision has been interpreted to mean simply that
"direct taxes are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress is not to prescribe, but to evolve, a
progressive tax system. Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited with
the proclamation of Art. VIII, 17(1) of the 1973 Constitution from which the present Art. VI, 28(1) was taken. Sales taxes are also
regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not impossible, to avoid them by imposing
such taxes according to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the regressive effects of this imposition
by providing for zero rating of certain transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while granting exemptions to
other transactions. (R.A. No. 7716, 4, amending 103 of the NIRC).
Thus, the following transactions involving basic and essential goods and services are exempted from the VAT:
(a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton
seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and
goods or services to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock, poultry feeds,
fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of citizens returning to the
Philippines) and or professional use, like professional instruments and implements, by persons coming to the
Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products
subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employeremployee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
On the other hand, the transactions which are subject to the VAT are those which involve goods and services which are used or availed
of mainly by higher income groups. These include real properties held primarily for sale to customers or for lease in the ordinary course
of trade or business, the right or privilege to use patent, copyright, and other similar property or right, the right or privilege to use
industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television, satellite transmission and cable
television time, hotels, restaurants and similar places, securities, lending investments, taxicabs, utility cars for rent, tourist buses, and
other common carriers, services of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by tendering issues not at retail but at
wholesale and in the abstract. There is no fully developed record which can impart to adjudication the impact of actuality. There is no
factual foundation to show in the concrete the application of the law to actual contracts and exemplify its effect on property rights. For
the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is not made concrete by a series of
hypothetical questions asked which are no different from those dealt with in advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as here, does not
suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner here would
condemn such a provision as void on its face, he has not made out a case. This is merely to adhere to the
authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are
not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to
such a conclusion. Absent such a showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete case. It may be that postponement of adjudication would
result in a multiplicity of suits. This need not be the case, however. Enforcement of the law may give rise to such a case. A test case,
provided it is an actual case and not an abstract or hypothetical one, may thus be presented.

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Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues. Otherwise, adjudication would be no
different from the giving of advisory opinion that does not really settle legal issues.
We are told that it is our duty under Art. VIII, 1, 2 to decide whenever a claim is made that "there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This duty can only
arise if an actual case or controversy is before us. Under Art . VIII, 5 our jurisdiction is defined in terms of "cases" and all that Art. VIII,
1, 2 can plausibly mean is that in the exercise of that jurisdiction we have the judicial power to determine questions of grave abuse of
discretion by any branch or instrumentality of the government.
Put in another way, what is granted in Art. VIII, 1, 2 is "judicial power," which is "the power of a court to hear and decide cases
pending between parties who have the right to sue and be sued in the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559
(1912)), as distinguished from legislative and executive power. This power cannot be directly appropriated until it is apportioned among
several courts either by the Constitution, as in the case of Art. VIII, 5, or by statute, as in the case of the Judiciary Act of 1948 (R.A.
No. 296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's "jurisdiction,"
defined as "the power conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others." (United
States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this Court cannot inquire into any allegation of
grave abuse of discretion by the other departments of the government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of the Philippines (CUP), after briefly
surveying the course of legislation, argues that it was to adopt a definite policy of granting tax exemption to cooperatives that the
present Constitution embodies provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a
constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting cooperatives from the payment of income
taxes and sales taxes but in 1984, because of the crisis which menaced the national economy, this exemption was withdrawn by P.D.
No. 1955; that in 1986, P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December 31, 1991,
but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the framers of the Constitution "repudiated the
previous actions of the government adverse to the interests of the cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of tax exemptions," by providing the
following in Art. XII:
1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a
sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian
reform, through industries that make full and efficient use of human and natural resources, and which are competitive
in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations,
shall be encouraged to broaden the base of their ownership.
15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for
social justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out cooperatives by withdrawing their
exemption from income and sales taxes under P.D. No. 175, 5. What P.D. No. 1955, 1 did was to withdraw the exemptions and
preferential treatments theretofore granted to private business enterprises in general, in view of the economic crisis which then beset
the nation. It is true that after P.D. No. 2008, 2 had restored the tax exemptions of cooperatives in 1986, the exemption was again
repealed by E.O. No. 93, 1, but then again cooperatives were not the only ones whose exemptions were withdrawn. The withdrawal of
tax incentives applied to all, including government and private entities. In the second place, the Constitution does not really require that
cooperatives be granted tax exemptions in order to promote their growth and viability. Hence, there is no basis for petitioner's assertion
that the government's policy toward cooperatives had been one of vacillation, as far as the grant of tax privileges was concerned, and
that it was to put an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter of policy
cooperatives should be granted tax exemptions, but that is left to the discretion of Congress. If Congress does not grant exemption and
there is no discrimination to cooperatives, no violation of any constitutional policy can be charged.
Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt from taxation. Such theory is contrary
to the Constitution under which only the following are exempt from taxation: charitable institutions, churches and parsonages, by reason
of Art. VI, 28 (3), and non-stock, non-profit educational institutions by reason of Art. XIV, 4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the equal protection of the law because
electric cooperatives are exempted from the VAT. The classification between electric and other cooperatives (farmers cooperatives,
producers cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that there is greater need to
provide cheaper electric power to as many people as possible, especially those living in the rural areas, than there is to provide them
with other necessities in life. We cannot say that such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional validity of R.A. No. 7716. We have in fact taken the
extraordinary step of enjoining its enforcement pending resolution of these cases. We have now come to the conclusion that the law
suffers from none of the infirmities attributed to it by petitioners and that its enactment by the other branches of the government does

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not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency must be addressed to Congress
as the body which is electorally responsible, remembering that, as Justice Holmes has said, "legislators are the ultimate guardians of
the liberties and welfare of the people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S.
267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public
accountability of legislators, that those who took part in passing the law in question by voting for it in Congress should later thrust to the
courts the burden of reviewing measures in the flush of enactment. This Court does not sit as a third branch of the legislature, much
less exercise a veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining order previously issued is hereby
lifted.
SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.
RESOLUTION

EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family
at the present time and under present circumstances pose a threat to national interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways,
and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be it under this administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of citizens
to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the
Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court reconsider its
decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene
M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin respondents from
implementing President Aquino's decision to bar the return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is moot and academic
as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to
return', including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide the
Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.

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1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show that there
are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no compelling
reasons have been established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which the
Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to provide a
catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be
caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the
matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual
powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department
and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was
a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
That the President has powers other than those expressly stated in the Constitution is nothing new. This is recognized under the U.S.
Constitution from which we have patterned the distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United States of
America." In Alexander Hamilton's widely accepted view, this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he [article
III enumeration [in sections 2 and 31 ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court accepted Hamilton's proposition, concluding that the federal
executive, unlike the Congress, could exercise power from sources not enumerated, so long as not forbidden by the
constitutional text: the executive power was given in general terms, strengthened by specific terms where emphasis
was regarded as appropriate, and was limited by direct expressions where limitation was needed. . ." The language of
Chief Justice Taft in Myers makes clear that the constitutional concept of inherent power is not a synonym for power
without limit; rather, the concept suggests only that not all powers granted in the Constitution are themselves
exhausted by internal enumeration, so that, within a sphere properly regarded as one of "executive' power, authority
is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159
(1978).]
And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the Constitution should
not be confused with the power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied.
Then, Amendment No. 6 refers to a grant to the President of thespecific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the
interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the
present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Separate Opinions

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CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos has not plunged the nation into
paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met with only passing interest if not outright
indifference from the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a
bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that feeble threat has died with him.
As the government stresses, he has been reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to be interred
in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no kinder fate than
dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a dead man, since he is
no longer a human being, has ceased to have rights. For instance, our Revised Penal Code prohibits the commission of libel against a
deceased individual. And even if we were to assume the non- existence anymore of his human rights what about the human rights of
his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently, unpersuasive. Our Armed
Forces can easily control any possible uprising or political and military destabilization. In fact, the converse appears to be nearer the
truth, that is, if we do not allow the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the request can mean a
hardening of resistance against the well-intentioned aim of the administration. Upon the other hand, to grant the petition may well soften
the hearts of the oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the quality of mercy is not
strained." Surely, compassion is the better part of government. Remove mercy, and you remove the best reason against civil strife,
which if not abated can turn our country into a mainstream of fiery dissent and in the end, as one great man has put it, the question will
no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been rendered, was pre-empted
and foreseen in my original dissenting opinion. There I said that the first cogent and decisive proposition in this case is that "Mr. Marcos
is a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this country, The remaining right
of this Filipino that cries out for vindication at this late hour is the right to be buried in this country. Will the respondents be allowed to
complete the circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the negative if the Constitution is to still
prevail; the answer should be in the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to
blend his mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say that the constitutional
and human right to be buried in this country would apply to any Filipino, except Mr. Marcos, because he was a dictator and he
plundered the country. This is the most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national security and public
safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot be any worse with a dead
Marcos returning. For, a dead Marcos will return to be buried into mother earth, where there are no protests, "demos", or even dissents,
where the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters would pose that threat to
national security. This argument is untenable as it is without merit. As I see it, Marcos' supporters pose a greater threat to peace and

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order, with Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the
country and allowed the burial to which he is constitutionally and humanly entitled, Marcos' supporters would be deprived of an
otherwise potent argumentso conducive to mass protests and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This contention entirely begs the
issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the
first time after his death. It was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be buried
in his country, is part of a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for the burial of Mr. Marcos
in this country, but I submit that these conditions must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be
buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my respect and regard for my
brethren and sisters in the majority, I am deeply concerned and greatly disturbed that, with their decision banning a dead Marcos from
burial in this country, they have passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to
ignite an already divided nation, Regrettably, they have ignored the constitutional dimension of the problem rooted in the ageless and
finest tradition of our people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of the Philippines of former
President Ferdinand E. Marcos, subject to such conditions as the Philippine government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not allow personal emotions
to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex-President's bereaved to bury his remains in his
homeland, and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the President's supposed
"residual" power to forbid citizens from entering the motherland reiterated in the resolution of the majority. I have found none. I am not
agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of the President, it
has, a fortiori, prescribed a diminution of executive power. The Charter says that the right may only be restricted by: (1) a court order; or
(2) by fiat of law. Had the fundamental law intended a presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of presumed residual executive power can amend
the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on individual liberties, but
more so, against presidential intrusions. And especially so, because the President is the caretaker of the military establishment that
has, several times over, been unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been
shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and imagination. The military has shown no hard evidence that
"the return of the Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is not convinced
("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit, reinforce alleged fears
of a massive destabilization awaiting the nation. The military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances given to foreign investors by no less
than the President, of the political and economic stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point. I reiterate that the
President has no power to deny requests of Marcos relatives to bury Marcos in his homeland. As for the former, let them get their just
deserts here too. And let the matter rest.
Separate Opinions

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CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos has not plunged the nation into
paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met with only passing interest if not outright
indifference from the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a
bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that feeble threat has died with him.
As the government stresses, he has been reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to be interred
in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no kinder fate than
dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a dead man, since he is
no longer a human being, has ceased to have rights. For instance, our Revised Penal Code prohibits the commission of libel against a
deceased individual. And even if we were to assume the non- existence anymore of his human rights what about the human rights of
his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently, unpersuasive. Our Armed
Forces can easily control any possible uprising or political and military destabilization. In fact, the converse appears to be nearer the
truth, that is, if we do not allow the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the request can mean a
hardening of resistance against the well-intentioned aim of the administration. Upon the other hand, to grant the petition may well soften
the hearts of the oppositionists; paving the way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the quality of mercy is not
strained." Surely, compassion is the better part of government. Remove mercy, and you remove the best reason against civil strife,
which if not abated can turn our country into a mainstream of fiery dissent and in the end, as one great man has put it, the question will
no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been rendered, was pre-empted
and foreseen in my original dissenting opinion. There I said that the first cogent and decisive proposition in this case is that "Mr. Marcos
is a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this country, The remaining right
of this Filipino that cries out for vindication at this late hour is the right to be buried in this country. Will the respondents be allowed to
complete the circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the negative if the Constitution is to still
prevail; the answer should be in the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to
blend his mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say that the constitutional
and human right to be buried in this country would apply to any Filipino, except Mr. Marcos, because he was a dictator and he
plundered the country. This is the most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national security and public
safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive proposition in this case is that
respondents have not presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot be any worse with a dead
Marcos returning. For, a dead Marcos will return to be buried into mother earth, where there are no protests, "demos", or even dissents,
where the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters would pose that threat to
national security. This argument is untenable as it is without merit. As I see it, Marcos' supporters pose a greater threat to peace and

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order, with Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the
country and allowed the burial to which he is constitutionally and humanly entitled, Marcos' supporters would be deprived of an
otherwise potent argumentso conducive to mass protests and even violencethat their Idol has been cruelly denied the right to be
buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This contention entirely begs the
issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the
first time after his death. It was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be buried
in his country, is part of a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for the burial of Mr. Marcos
in this country, but I submit that these conditions must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be
buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my respect and regard for my
brethren and sisters in the majority, I am deeply concerned and greatly disturbed that, with their decision banning a dead Marcos from
burial in this country, they have passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to
ignite an already divided nation, Regrettably, they have ignored the constitutional dimension of the problem rooted in the ageless and
finest tradition of our people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of the Philippines of former
President Ferdinand E. Marcos, subject to such conditions as the Philippine government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not allow personal emotions
to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex-President's bereaved to bury his remains in his
homeland, and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the President's supposed
"residual" power to forbid citizens from entering the motherland reiterated in the resolution of the majority. I have found none. I am not
agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of the President, it has,
a fortiori, prescribed a diminution of executive power. The Charter says that the right may only be restricted by: (1) a court order; or (2)
by fiat of law. Had the fundamental law intended a presidential imprimatur, it would have said so. It would have also completed the
symmetry: judicial, congressional, and executive restraints on the right. No amount of presumed residual executive power can amend
the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on individual liberties, but
more so, against presidential intrusions. And especially so, because the President is the caretaker of the military establishment that
has, several times over, been unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been
shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and imagination. The military has shown no hard evidence that
"the return of the Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is not convinced
("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit, reinforce alleged fears
of a massive destabilization awaiting the nation. The military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances given to foreign investors by no less
than the President, of the political and economic stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point. I reiterate that the
President has no power to deny requests of Marcos relatives to bury Marcos in his homeland. As for the former, let them get their just
deserts here too. And let the matter rest.

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EN BANC
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 Presidents 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 Courts 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 petitioners 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 petitioners 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 petitioners 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 Peoples 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 petitioners 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 petitioners 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

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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 Courts 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:
I
CONTRARY TO THIS HONORABLE COURTS 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 COURTS DECISION, THERE CAN BE NO PRESUMPTION THAT THE
INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS 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 COURTS 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 INSENATE 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 OSGS 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
petitioners testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the

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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 Presidents 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 Generals
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.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts 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 thepresidential 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 Courts 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 Presidents 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.

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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 inSenate 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 Presidents 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 privilegeare 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.

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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 Presidents 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 advisors 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 Presidents 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 Executives 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 Presidents claim of executive privilege is not merely based on a generalized interest; and in balancing respondent
Committees and the Presidents 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 Presidents invocation, through the Executive Secretary, of
executive privilege because (a) between respondent Committees specific and demonstrated need and the Presidents 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 Presidents 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 Peoples 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 Presidents 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

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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 Peoples 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 Peoples 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 Presidents 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 Presidents 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
Presidents 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

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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
publics 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 peoples 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

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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 theright '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 theconstitutional 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 betotally
frustrated. The President's broad interest in confidentiality of communication willnot 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 courts need for facts in order to adjudge liability in a criminal case but rather with the
Senates 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.

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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 Presidents 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

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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 anyones 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.49In 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 Legislatures 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 petitioners 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.

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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--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, petitioners 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 Courts 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 respondentCommittee 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.57These 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.

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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 Senates 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 eachsession 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.

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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
Ermitas 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 petitioners 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 theirinternal 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 Legislatures 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 herebyDENIED.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco,
Jr., Nachura, Reyes, Brion, JJ., concur.

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA RIVERA,petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

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This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and orders issued by respondent
Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as chief accountant and record custodian, respectively, of the
Economic Intelligence and Investigation Bureau (EIIB) to produce "all documents relating to Personal Services Funds for the year 1988
and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from enforcing his orders.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal
Management Division. The subpoena duces tecum was issued by the Ombudsman in connection with his investigation of an
anonymous letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter,
purporting to have been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of Finance, with
copies furnished several government offices, including the Office of the Ombudsman.
The letter reads in pertinent parts:
1 These are the things that I have been observing. During the implementation of E.O. 127 on May
1, 1988, one hundred ninety (190) personnel were dismissed. Before that implementation, we had
a monthly savings of P500,000.00 from unfilled plantilla position plus the implementation of RA
6683 wherein seventy (70) regular employees availed a total amount of P1,400,000.00 was saved
from the government monthly. The question is, how do they used or disbursed this savings? The
EIIB has a syndicate headed by the Chief of Budget Division who is manipulating funds and also
the brain of the so called "ghost agents" or the "Emergency Intelligence Agents" (EIA). The
Commissioner of EIIB has a biggest share on this. Among his activities are:
a) Supporting RAM wherein he is involved. He gives big amount especially
during the Dec. Failed coup.
b) Payment for thirty five (30) mini UZI's.
c) Payment for the purchased of Maxima '87 for personal used of the
Commissioner.
d) Another observation was the agents under the Director of NCR EIIB is the sole
operating unit within Metro Manila which was approved by no less than the
Commissioner due to anomalous activities of almost all agents assigned at the
central office directly under the Commissioner. Retired Brig. Gen. Almonte as one
of the Anti-Graft board member of the Department of Finance should not tolerate
this. However, the Commissioner did not investigate his own men instead, he
placed them under the 15-30 payroll.
e) Many more which are personal.
2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly
Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to
submit an actual filled up position because almost half of it are vacant and still they are releasing it.
Are EIIB plantilla position classified? It is included in the Personal Services Itemization (PSI) and I
believe it is not classified and a ruling from Civil Service Commission that EIIB is not exempted
from Civil Service. Another info, when we had salary differential last Oct '88 all money for the whole
plantilla were released and from that alone, Millions were saved and converted to ghost agents of
EIA.
3. Another thing that I have observed was the Chief Budget Division possesses high caliber
firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the Assistant
Commissioner wherein he is not an agent of EIIB and authorized as such according to
memorandum order number 283 signed by the President of the Republic of the Philippines effective
9 Jan. 1990.
Another observation was when EIIB agents apprehended a certain civilian who possesses
numerous assorted high powered firearms. Agents plus one personnel from the legal proclaimed
only five (5) firearms and the remaining was pilfered by them.
Another observation is almost all EIIB agents collects payroll from the big time smuggler syndicate
monthly and brokers every week for them not to be apprehended.
Another observation is the commissioner allocates funds coming from the intelligence funds to the
media to sustain their good image of the bureau.
In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the separation of personnel, the EIIB had made
some savings. He averred that the only funds released to his agency by the Department of Budget and Management (DBM) were those
corresponding to 947 plantilla positions which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that
disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of the agency had been cleared by the
Commission on Audit (COA); that the case of the 30 Uzis had already been investigated by Congress, where it was shown that it was

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not the EIIB but an agent who had spent for the firearms and they were only loaned to the EIIB pending appropriation by Congress;
that, contrary to the charge that a Maxima car had been purchased for his use, he was using a government issued car from the NICA;
that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so that they could be given reorientation and
retraining; that the allegation that the EIIB operatives pilfered smuggled firearms was without factual basis because the firearms were
the subject of seizure proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising toward
employees found involved in anomalous activities; and that intelligence funds had not been used for media propaganda and if media
people went to the EIIB it was because of newsworthy stories. Petitioner asked that the complaint be dismissed and the case
considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990 that savings had been realized from the
implementation of E.O. No. 127, since the DBM provided allocations for only the remaining 947 personnel. He said that the
disbursement of funds for the plantilla positions for "overt" and "covert" personnel had been cleared by the COA and that the highpowered firearms had been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in withdrawing
funds from the banks.
The Graft Investigation Officer of the Ombudsman's office, Jose F. Sao, found the comments unsatisfactory, being "unverified and
plying only on generalizations without meeting specifically the points raised by complainant as constitutive of the alleged
anomalies." 3 He, therefore, asked for authority to conduct a preliminary investigation. Anticipating the grant of his request, he issued a
subpoena 4 to petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the affidavits of their witnesses, as
well as a subpoena duces tecum 5 to the Chief of the EIIB's Accounting Division ordering him to bring "all documents relating to
Personal Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988."
Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his Order dated June 15,
1990, 6 respondent Ombudsman granted the motion to quash the subpoena in view of the fact that there were no affidavits filed against
petitioners. But he denied their motion to quash the subpoena duces tecum. He ruled that petitioners were not being forced to produce
evidence against themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio Rogado. In
addition the Ombudsman ordered the Chief of the Records a Section of the EIIB, petitioner Elisa Rivera, to produce before the
investigator "all documents relating to Personnel Service Funds, for the year 1988, and all documents, salary vouchers for the whole
plantilla of the EIIB for 1988, within ten (10) days from receipt hereof."
Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were EIIB employees under their
supervision and that the Ombudsman was doing indirectly what he could not do directly,i.e., compelling them (petitioners Almonte and
Perez) to produce evidence against themselves.
Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this petition which questions the
orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman.
To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the
freedom of information guarantee of the Constitution. 7 Rather it concerns the power of the Office of the Ombudsman to obtain evidence
in connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus petitioners
raise the following issues: 8
I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND UNVERIFIED
LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE
OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS
VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988."
II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR
THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE
PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND THE REACH
OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.
I.
There are several subsidiary issues raised by petitioners, but the principal ones revolve on the question whether petitioners can be
ordered to produce documents relating to personal services and salary vouchers of EIIB employees on the plea that such documents
are classified. Disclosure of the documents in question is resisted on the ground that "knowledge of EIIB's documents relative to its
Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations, movements, targets, strategies, and
tactics and the whole of its being" and this could "destroy the EIIB." 9
Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the relevancy or materiality of the
documents required to be produced, to the pending investigation in the Ombudsman's office. Accordingly, the focus of discussion
should be on the Government's claim of privilege.
A.

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At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic
and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the
individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. 10
In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court recognized the right of the President to
the confidentiality of his conversations and correspondence, which it likened to "the claim of confidentiality of judicial deliberations."
Said the Court in United States v. Nixon: 11
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of
confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of
all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to
explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be
unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of the government and inextricably rooted in the
separation of powers under the Constitution. . . .
Thus, the Court for the first time gave executive privilege a constitutional status and a new name, although not necessarily a new
birth. 12
"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact that Justices of the U.S. Supreme
Court and judges of lower federal courts have traditionally treated their working papers and judicial notes as private property. A 1977
proposal in the U.S. Congress that Justices and judges of lower federal courts "should be encouraged to make such arrangements as
will assure the preservation and eventual availability of their personal papers, especially the deposit of their papers in the same
depository they select for [their] Public Papers" 13 was rebuffed by the Justices who, in a letter to the Chairman of the Subcommittee on
Regulation and Government Information of the U.S. Senate, referred to "difficult concerns respecting the appropriate separation that
must be maintained between the legislative branch and this Court." 14
There are, in addition to such privileges, statutorily-created ones such as the Government's privilege to withhold the identity of persons
who furnish information of violations of laws. 15
With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as follows:
Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go
so far as to say that the court may automatically require a complete disclosure to the judge before the claim of
privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case,
that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of
national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the
court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers. . . . In each case, the showing of necessity which is made will
determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.
Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most
compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are
at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case,
will have to prevail. 16
On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security
secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an
absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws. 17
B.
In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the
personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation of intelligence reports and information regarding "illegal
activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar
salting." 18 Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, 19 no similar
excuse can be made for a privilege resting on other considerations.
Nor has our attention been called to any law or regulation which considers personnel records of the EIIB as classified information. To
the contrary, COA Circular No. 88-293, which petitioners invoke to support their contention that there is adequate safeguard against
misuse of public funds, provides that the "only item of expenditure which should be treated strictly confidential" is that which refers to
the "purchase of information and payment of rewards." Thus, part V, No. 7 of the Circular reads:
The only item of expenditure which should be treated as strictly confidential because it falls under the category of
classified information is that relating to purchase of information and payment of rewards. However, reasonable
records should be maintained and kept for inspection of the Chairman, Commission on Audit or his duly authorized
representative. All other expenditures are to be considered unclassified supported by invoices, receipts and other
documents, and, therefore, subject to reasonable inquiry by the Chairman or his duly authorized representative. 20

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It should be noted that the regulation requires that "reasonable records" be kept justifying the confidential or privileged
character of the information relating to informers. There are no such reasonable records in this case to substitute for the
records claimed to be confidential.
The other statutes and regulations 21 invoked by petitioners in support of their contention that the documents sought in the
subpoena duces tecum of the Ombudsman are classified merely indicate the confidential nature of the EIIB's functions, but they do not
exempt the EIIB from the duty to account for its funds to the proper authorities. Indeed by denying that there were savings made from
certain items in the agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947 personnel
retained after its reorganization, petitioners in effect invited inquiry into the veracity of their claim. If, as petitioners claim, the
subpoenaed records have been examined by the COA and found by it to be regular in all respects, there is no reason why they cannot
be shown to another agency of the government which by constitutional mandate is required to look into any complaint concerning public
office.
On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled by fictitious persons and that
the allotments for these items in 1988 were used for illegal purposes. The plantilla and other personnel records are relevant to his
investigation. He and his Deputies are designated by the Constitution "protectors of the people" and as such they are required by it "to
act promptly on complaints in any form or manner against public officials or employees of the Government, or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporation." 22
His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more, while there might have been
compelling reasons for the claim of privilege in 1988 when it was asserted by petitioners, now, seven years later, these reasons may
have been attenuated, if they have not in fact ceased. The agents whose identities could not then be revealed may have ceased from
the service of the EIIB, while the covert missions to which they might have been deployed might either have been accomplished or
abandoned. On the other hand, the Ombudsman's duty to investigate the complaint that there were in 1988 unfilled positions in the EIIB
for which continued funding was received by its officials and put to illegal use, remains.
Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would only justify ordering their
inspection in camera but not their nonproduction. However, as concession to the nature of the functions of the EIIB and just to be sure
no information of a confidential character is disclosed, the examination of records in this case should be made in strict confidence by
the Ombudsman himself. Reference may be made to the documents in any decision or order which the Ombudsman may render or
issue but only to the extent that it will not reveal covert activities of the agency. Above all, there must be a scrupulous protection of the
documents delivered.
With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of the parties is achieved. It is not
amiss to state that even matters of national security have been inquired into in appropriate in camera proceedings by the courts.
In Lansang v. Garcia 23 this Court held closed door sessions, with only the immediate parties and their counsel present, to determine
claims that because of subversion there was imminent danger to public safety warranting the suspension of the writ of habeas corpus in
1971. Again in Marcos v. Manglapus 24 the Court met behind closed doors to receive military briefings on the threat posed to national
security by the return to the country of the former President and his family. In the United States, a similar inquiry into the danger to
national security as a result of the publication of classified documents on the Vietnam war was upheld by the U.S. Supreme
Court. 25 We see no reason why similar safeguards cannot be made to enable an agency of the Government, like the Office of the
Ombudsman, to carry out its constitutional duty to protect public interests 26 while insuring the confidentiality of classified documents.
C.
Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any appropriate case, and subject to such limitations as
may be provided by law" and that because the complaint in this case is unsigned and unverified, the case is not an appropriate one.
This contention lacks merit. As already stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any
form or manner" concerning official acts or omissions. Thus, Art. XI, 12 provides:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations and shall in appropriate cases, notify the
complainants of the action taken and the result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in 26(2):
The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or
omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same
and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate
further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him
to submit a written answer within seventy-two hours from receipt thereof. If the answer is found satisfactory, it shall
dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding investigation and charges made in a
pleading in a case in court constituted a sufficient basis for the Ombudsman to commence investigation, because a formal complaint
was really not necessary.
Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art. XI, 12 means any case
concerning official act or omission which is alleged to be "illegal, unjust, improper, or inefficient."28 The phrase "subject to such

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limitations as may be provided by law" refers to such limitations as may be provided by Congress or, in the absence thereof, to such
limitations as may be imposed by the courts. Such limitations may well include a requirement that the investigation be concluded in
camera, with the public excluded, as exception to the general nature of the proceedings in the Office of the Ombudsman. 29 A
reconciliation is thereby made between the demands of national security and the requirement of accountability enshrined in the
Constitution. 30
What has been said above disposes of petitioners' contention that the anonymous letter-complaint against them is nothing but a
vexatious prosecution. It only remains to say that the general investigation in the Ombudsman' s office is precisely for the purpose of
protecting those against whom a complaint is filed against hasty, malicious, and oppressive prosecution as much as securing the State
from useless and expensive trials. There may also be benefit resulting from such limited in camera inspection in terms of increased
public confidence that the privilege is not being abused and increased likelihood that no abuse is in fact occurring.
II.
Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that "in all forum and tribunals . . . the
aggrieved parties . . . can only hale respondents via their verified complaints or sworn statements with their identities fully disclosed,"
while in proceedings before the Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there
can be no objection to this procedure because it is provided in the Constitution itself. In the second place, it is apparent that in
permitting the filing of complaints "in any form and in a manner," the framers of the Constitution took into account the well-known
reticence of the people which keep them from complaining against official wrongdoings. As this Court had occasion to point out, the
Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government because those subject
to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against
them. 31 On the other hand complainants are more often than not poor and simple folk who cannot afford to hire lawyers. 32
III.
Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right against self-incrimination. It is
enough to state that the documents required to be produced in this case are public records and those to whom the subpoena duces
tecum is directed are government officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they should object
to the examination of the documents by respondent Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed documents be made personally in
camera by the Ombudsman, and with all the safeguards outlined in this decision.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.
Francisco, J., is on leave.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic Intelligence and Investigation Bureau (EIIB)
documents relating to the Personal Services Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of the EIIB Commissioner on the ground
that the documents contain highly confidential matters, apart from the fact that the expenditures had been cleared in audit by the
Commission on Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue are not classified under
COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which limits such matters exclusively to expenditures relating to the
purchase of information and payment of rewards; and b) the documents relating to disbursement and expenditures of the EIIB for
personal funds had already been previously examined by the Commission on Audit when such outlay had been passed upon in audit in
the said Office, such that there is no confidentiality privilege to protect.
With due respect, I beg to disagree.
Disclosure of the documents as required by the Ombudsman would necessarily defeat the legal mandate of the EIIB as the intelligence
arm of the executive branch of government relating to matters affecting the economy of the nation. As such, EIIB's functions are related
to matters affecting national security. In the performance of its function in relation with the gathering of intelligence information executive
privilege could as well be invoked by the EIIB, especially in relation to its covert operations.

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The determination, by the executive branch, through its appropriate agencies, of a question as affecting the national security is a policy
decision for which this Court has neither the competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies, I am of the opinion that we cannot
interfere with a determination, properly made, on a question affecting economic security lest we are prepared to ride roughshod over
certain prerogatives of our political branches. In an area obviously affecting the national security, disclosure of confidential information
on the promptings of some dissatisfied employees would potentially disturb a number of carefully laid-out operations dependent on
secrecy and I am not prepared to do this. The characterization of the documents as classified information is not a shield for wrongdoing
but a barrier against the burden some requests for information which necessarily interfere with the proper performance of their duties.
To give in, at every turn, to such requests would be greatly disruptive of governmental functions. More so in this case, since
expenditures of the EIIB for personal funds had already been previously examined and passed upon in audit by the Commission on
Audit. There has been no allegation of any irregularity in the COA's earlier examination, and in the absence of substantiated
allegations, the previous determination ought to be accorded our respect unless we want to encourage unnecessary and tiresome
forays and investigations into government activities which would not only end up nowhere but which would also disrupt or derail such
activities.
The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of the EIIB, as presidential immunity is
bestowed by reason of the political functions of the Chief Executive, as a separate and co-equal branch of government. By the same
parity of reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman even in camera proceedings will
under the pretext of ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the performance by the EIIB of its
functions especially those affecting national security.
The constitutional right allowing disclosure of governmental documents, i.e., the right to information on matters of public concern is not
absolute. While access to official records may not be prohibited, it may be regulated. 1Regulation includes appropriate authority to
determine what documents are of public concern, the manner of access to information contained in such documents and to withhold
information under certain circumstances, particularly, as in this case, those circumstances affecting the national security. 2
Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds allocated to it are properly within the
competence of the Commission on Audit, which as the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission
on Audit had adopted, as in the past, measures to protect "classified information" pertaining to examination of expenditures of
intelligence agencies. In the present case, disclosure of information to any other agency would unnecessarily expose the covert
operations of EIIB, as a government agency charged with national security functions.
I, therefore, vote to give due course to the petition.

Separate Opinions
KAPUNAN, J., dissenting:
The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic Intelligence and Investigation Bureau (EIIB)
documents relating to the Personal Services Funds for the year 1988 and all documentary evidence, including salary vouchers for the
whole plantilla of the EIIB for 1988 be produced before the Ombudsman over the objections of the EIIB Commissioner on the ground
that the documents contain highly confidential matters, apart from the fact that the expenditures had been cleared in audit by the
Commission on Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents at issue are not classified under
COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which limits such matters exclusively to expenditures relating to the
purchase of information and payment of rewards; and b) the documents relating to disbursement and expenditures of the EIIB for
personal funds had already been previously examined by the Commission on Audit when such outlay had been passed upon in audit in
the said Office, such that there is no confidentiality privilege to protect.
With due respect, I beg to disagree.
Disclosure of the documents as required by the Ombudsman would necessarily defeat the legal mandate of the EIIB as the intelligence
arm of the executive branch of government relating to matters affecting the economy of the nation. As such, EIIB's functions are related
to matters affecting national security. In the performance of its function in relation with the gathering of intelligence information executive
privilege could as well be invoked by the EIIB, especially in relation to its covert operations.
The determination, by the executive branch, through its appropriate agencies, of a question as affecting the national security is a policy
decision for which this Court has neither the competence nor the mandate to infringe upon. In the absence of a clear showing a grave
abuse of discretion on the part of the Executive, acting through its (national security) agencies, I am of the opinion that we cannot
interfere with a determination, properly made, on a question affecting economic security lest we are prepared to ride roughshod over
certain prerogatives of our political branches. In an area obviously affecting the national security, disclosure of confidential information
on the promptings of some dissatisfied employees would potentially disturb a number of carefully laid-out operations dependent on
secrecy and I am not prepared to do this. The characterization of the documents as classified information is not a shield for wrongdoing
but a barrier against the burden some requests for information which necessarily interfere with the proper performance of their duties.
To give in, at every turn, to such requests would be greatly disruptive of governmental functions. More so in this case, since
expenditures of the EIIB for personal funds had already been previously examined and passed upon in audit by the Commission on
Audit. There has been no allegation of any irregularity in the COA's earlier examination, and in the absence of substantiated

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allegations, the previous determination ought to be accorded our respect unless we want to encourage unnecessary and tiresome
forays and investigations into government activities which would not only end up nowhere but which would also disrupt or derail such
activities.
The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of the EIIB, as presidential immunity is
bestowed by reason of the political functions of the Chief Executive, as a separate and co-equal branch of government. By the same
parity of reasoning, the disclosure of the EIIB documents required to be examined by the Ombudsman even in camera proceedings will
under the pretext of ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the performance by the EIIB of its
functions especially those affecting national security.
The constitutional right allowing disclosure of governmental documents, i.e., the right to information on matters of public concern is not
absolute. While access to official records may not be prohibited, it may be regulated. 1Regulation includes appropriate authority to
determine what documents are of public concern, the manner of access to information contained in such documents and to withhold
information under certain circumstances, particularly, as in this case, those circumstances affecting the national security. 2
Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds allocated to it are properly within the
competence of the Commission on Audit, which as the ponencia of Justice Mendoza finds, has been cleared in audit. The Commission
on Audit had adopted, as in the past, measures to protect "classified information" pertaining to examination of expenditures of
intelligence agencies. In the present case, disclosure of information to any other agency would unnecessarily expose the covert
operations of EIIB, as a government agency charged with national security functions.
I, therefore, vote to give due course to the petition.

EN BANC
G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER,
in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO
M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone
acting in his stead and in behalf of the President of the Philippines,Respondents.
x-------------------------x
G.R. No. 169659

April 20, 2006

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

April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,
and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667

April 20, 2006

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

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

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Page 139 of 204

G.R. No. 169834

April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE PHILIPPINES,Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it
has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining
the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said:
"Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than
the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard
it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive
Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal
branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be
indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign
will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or
investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North
Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22, 2005 to the following
officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP
Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence
Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen.
Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as
resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q.
Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26,
2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on
August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon
Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping
of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who,
by letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation that demands [his utmost
personal attention" while "some of the invited AFP officers are currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter 4 dated
September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various

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officials of the Executive Department have been invited" in order to "afford said officials ample time and opportunity to study and
prepare for the various issues so that they may better enlighten the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his request]" as it
"was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous]
week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North Luzon Railways Corporation
Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP
Law Center on the contract agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation
Under the Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions
of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution
and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be
conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and
rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act
No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made
available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers covered by this
executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez
G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are
covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the
Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure
prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in
aid of legislation. (Emphasis and underscoring supplied)

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Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding the NorthRail project] will not
be able to attend the same without the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen.
Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him "that per
instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any
Senate or Congressional hearings without seeking a written approval from the President" and "that no approval has been granted by
the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee
on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited
attending.
For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her approval, Brig.
Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of
regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase
II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed
before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the
Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary
and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure
of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are
affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-governmental
organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country,
and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464, 13 prays,
that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease
from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity
of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement
since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of
Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the
conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers
to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter15 dated
February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow
[them] to appear before the public hearing" and that "they will attend once [their] request is approved by the President." As none of
those invited appeared, the hearing on February 10, 2006 was cancelled.16

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In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the
alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture
(DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but
most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide
Authority Executive Director Norlito R. Gicana,17 and those from the Department of Budget and Management18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R.
Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and
observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether
respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III,
Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of
whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to
discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention
to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as
applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the
ISAFP; and (d) the investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R. No. 16966725 and
G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum 27 was granted, subsequently
filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved
soonest, prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on March 13, 2006 for the
dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in
a newspaper of general circulation.

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Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise
of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge
the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the
parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that
they, adverting to the non-appearance of several officials of the executive department in the investigations called by the different
committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry
in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any
specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being
no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of the other petitioner
groups and individuals who profess to have standing as advocates and defenders of the Constitution, respondents contend that such
interest falls short of that required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the implementation of E.O.
464 does not involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by reason of the
issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes
Office,43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such
that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic
system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of
Congress to access information that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed,
legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna),
Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality
of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared
policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and
parties who lack well-defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the
nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their copetitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the
IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke their constitutional right to information on matters of
public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other
constitutional rights51 and to the maintenance of the balance of power among the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees,
orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,53 this Court held that when the
proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

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As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition
which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental
importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the
presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of
the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised.54 The first
and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659
have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it
shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute
which serves in part to cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-Labans alleged interest as a political
party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after
the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her
consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely communicated to the Senate that they
have not yet secured the consent of the President, not that the President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O.
464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464
does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner
Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication.
Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the
possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration
of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries
shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry
in the unicameral legislature established therein the Batasang Pambansa and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under that
Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural
Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate.
On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained
for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and
exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete;
so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)

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That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of
inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a proper subject of legislation
and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the
power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court
held, "also involved government agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative
process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that
subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in
aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review
pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of legislation, and thus
beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for
Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person
for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with
the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for
speculation on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that
the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of
Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the
executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern
of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of
the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under
the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its
preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the
United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the
Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information
from Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67 Tribe, in fact,
comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive
privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations,
and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the
ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is
the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of
law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the
confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our

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government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified
right to withhold information related to pending investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements
applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive
responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to
documents integral to an appropriate exercise of the executive domestic decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and
underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all
instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested
information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the validity of
President Nixons claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of privilege was based on the Presidents general interest in the
confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a Presidents
powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent assertion of the privilege to
deny information to Congress, beginning with President Washingtons refusal to turn over treaty negotiation records to the House of
Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of
Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations
against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of
Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the
Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77Almonte used the term in
reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the
privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of
judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly
stated in the decision, the right of the people to information.78 Nonetheless, the Court recognized that there are certain types of
information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive
privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege
against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters."80 The same
case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters recognized as
"privileged information under the separation of powers,"82 by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national
security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were
exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear
principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or
not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.
Validity of Section 1

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Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to
discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether
they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further,
unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads possession
of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the
Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either
House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance
shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides
for the question hour must be interpreted vis--vis Section 21 which provides for the power of either House of Congress to "conduct
inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were
aware that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of
the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular
problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself
has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they
do not come and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to
come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when
they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman
confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas,
Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he
refuses, he can be held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be
discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears
noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question
hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this
distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to Section 31,
far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on
Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as
Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in
terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I
hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of
the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check
and balance but also, in effect, in aid of legislation.

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MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are
accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same
assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power
to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davides
only concern was that the two provisions on these distinct powers be placed closely together, they being complementary to each other.
Neither Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner Maambongs
committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner
Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may
thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of confrontation
initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in
the 1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system
established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to
the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated
before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National
Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present
Constitution so as to conform more fully to a system of separation of powers.88 To that extent, the question hour, as it is presently
understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be
required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them
in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive
information in the performance of its legislative function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain
information from any source even from officials of departments and agencies in the executive branch. In the United States there is,
unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and
executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if
the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close
rapport between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress
upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress
possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power
devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the
same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress oversight function.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to
such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report
of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress
may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22
find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this
power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of
impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch
of government which is sanctioned by a long-standing custom.

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By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the
constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in
aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated
in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be
interpreted, as much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid
on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is
discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in
such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently
made, either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to
appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers
of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same
section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the
executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 "Nature,
Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the determination by the President
under this provision is intended to be based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a
misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and
not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to
persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such
official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This
requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by
virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464,
or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination
then becomes the basis for the officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested
information is privileged, and that the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld by the executive branch, by
authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature
of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon
Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to
appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And
Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied)

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The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource
persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of
consent from the President under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered
by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated
head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is
not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the
invited officials have not secured the consent of the President, it only means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the President or the
heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and
that, at the time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been
made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even
against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The
information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which,
like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the
instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege.
This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the
particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very
nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3
of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by
the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive.
The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or
classified information between the President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely
declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that
determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That
the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It
threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S.
v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to
be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter,
after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the
claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.92 (Underscoring
supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one
of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.93 These, in substance, were
the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in point,
against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court
from balancing such harm against plaintiffs needs to determine whether to override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimants
interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of

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opinion that non-disclosure is designed to protect. The government has not shown nor even alleged that those who evaluated
claimants product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this
Court would have to assume that the evaluation and classification of claimants products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain reasons for
preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as
well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the
claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua
sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege.
Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim
in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability.
To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole procedure.101(Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds
therefor. Apropos is the following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as
true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect
for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking
of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or
remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was "a patent
evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis
and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel
disclosure of the information which the privilege is meant to protect.103 A useful analogy in determining the requisite degree of
particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so
does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to
answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove
the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very
protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied.
Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the
President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in
Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It
may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the
heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it
claims, only the President can assert executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged,
such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already
discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain informations
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from

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

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Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the
publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus
requires that the people should have been apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive
branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must
be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of
clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of
Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and
nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid.
Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have
given up something of much greater value our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring
Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution,
and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

SUPREME COURT OF THE UNITED STATES

Syllabus
CLINTON v. JONES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 95-1853. Argued January 13, 1997 -- Decided May 27, 1997
Respondent sued under 42 U.S.C. 1983 and 1985 and Arkansas law to recover damages from petitioner,
the current President of the United States, alleging,inter alia, that while he was Governor of Arkansas,
petitioner made "abhorrent" sexual advances to her, and that her rejection of those advances led to
punishment by her supervisors in the state job she held at the time. Petitioner promptly advised the Federal
District Court that he would file a motion to dismiss on Presidential immunity grounds, and requested that all
other pleadings and motions be deferred until the immunity issue was resolved. After the court granted that
request, petitioner filed a motion to dismiss without prejudice and to toll any applicable statutes of limitation
during his Presidency. The District Judge denied dismissal on immunity grounds and ruled that discovery could
go forward, but ordered any trial stayed until petitioner's Presidency ended. The Eighth Circuit affirmed the
dismissal denial, but reversed the trial postponement as the "functional equivalent" of a grant of temporary
immunity to which petitioner was not constitutionally entitled. The court explained that the President, like other
officials, is subject to the same laws that apply to all citizens, that no case had been found in which an official
was granted immunity from suit for his unofficial acts, and that the rationale for official immunity is inapposite
where only personal, private conduct by a President is at issue. The court also rejected the argument that,
unless immunity is available, the threat of judicial interference with the Executive Branch would violate
separation of powers.
Held:
1. This Court need not address two important constitutional issues not encompassed within the questions
presented by the certiorari petition: (1) whether a claim comparable to petitioner's assertion of immunity might
succeed in a state tribunal, and (2) whether a court may compel the President's attendance at any specific time
or place. Pp. 7-9.
2. Deferral of this litigation until petitioner's Presidency ends is not constitutionally required. Pp. 7-28.
(a) Petitioner's principal submission--that in all but the most exceptional cases, the Constitution affords the
President temporary immunity from civil damages litigation arising out of events that occurred before he took
office--cannot be sustained on the basis of precedent. The principal rationale for affording Presidents immunity
from damages actions based on their official acts--i.e., to enable them to perform their designated functions
effectively without fear that a particular decision may give rise to personal liability, see, e.g.,

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Nixon v.Fitzgerald, 457 U.S. 731, 749, 752, and n. 32--provides no support for an immunity
for unofficial conduct. Moreover, immunities for acts clearly within official capacity are grounded in the nature of
the function performed, not the identity of the actor who performed it. Forrester v. White, 484 U.S. 219, 229.
The Court is also unpersuaded by petitioner's historical evidence, which sheds little light on the question at
issue, and is largely canceled by conflicting evidence that is itself consistent with both the doctrine of
presidential immunity as set forth inFitzgerald, and rejection of the immunity claim in this case. Pp. 9-15.
(b) The separation of powers doctrine does not require federal courts to stay all private actions against the
President until he leaves office. Even accepting the unique importance of the Presidency in the constitutional
scheme, it does not follow that that doctrine would be violated by allowing this action to proceed. The doctrine
provides a self executing safeguard against the encroachment or aggrandizement of one of the three co equal
branches of Government at the expense of another. Buckley v. Valeo, 424 U.S. 1, 122. But in this case there is
no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be
described as "executive." Respondent is merely asking the courts to exercise their core Article III jurisdiction to
decide cases and controversies, and, whatever the outcome, there is no possibility that the decision here will
curtail the scope of the Executive Branch's official powers. The Court rejects petitioner's contention that this
case--as well as the potential additional litigation that an affirmance of the Eighth Circuit's judgment might
spawn--may place unacceptable burdens on the President that will hamper the performance of his official
duties. That assertion finds little support either in history, as evidenced by the paucity of suits against sitting
Presidents for their private actions, or in the relatively narrow compass of the issues raised in this particular
case. Of greater significance, it is settled that the Judiciary may severely burden the Executive Branch by
reviewing the legality of the President's official conduct, see e.g., Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, and may direct appropriate process to the President himself, see e.g., United
States v. Nixon, 418 U.S. 683. It must follow that the federal courts have power to determine the legality of the
President's unofficial conduct. The reasons for rejecting a categorical rule requiring federal courts to stay
private actions during the President's term apply as well to a rule that would, in petitioner's words, require a
stay "in all but the most exceptional cases." Pp. 15-24.
(c) Contrary to the Eighth Circuit's ruling, the District Court's stay order was not the "functional equivalent" of an
unconstitutional grant of temporary immunity. Rather, the District Court has broad discretion to stay
proceedings as an incident to its power to control its own docket. See, e.g., Landis v. North American Co.,299
U.S. 248, 254. Moreover, the potential burdens on the President posed by this litigation are appropriate matters
for that court to evaluate in its management of the case, and the high respect owed the Presidency is a matter
that should inform the conduct of the entire proceeding. Nevertheless, the District Court's stay decision was an
abuse of discretion because it took no account of the importance of respondent's interest in bringing the case
to trial, and because it was premature in that there was nothing in the record to enable a judge to assess
whether postponement of trial after the completion of discovery would be warranted. Pp. 25-27.
(d) The Court is not persuaded of the seriousness of the alleged risks that this decision will generate a large
volume of politically motivated harassing and frivolous litigation and that national security concerns might
prevent the President from explaining a legitimate need for a continuance, and has confidence in the ability of
federal judges to deal with both concerns. If Congress deems it appropriate to afford the President stronger
protection, it may respond with legislation. Pp. 27-28.

DAVID VS ARROYO

SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1] Superior strength the use
of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: In cases involving liberty, the
scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Laws and actions that restrict fundamental rights come to the courts with a heavy presumption
against their constitutional validity.[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I, President Arroyo issued PP
1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18,
Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes necessary, . . . may
call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the

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Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists the historical enemies of the democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing governance
including hindering the growth of the economy and sabotaging the peoples confidence in government and
their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino
people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of
the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in
the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces
of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and
lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the
AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

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On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had
been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation
No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the
basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of
lawless violence as well as any act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by

virtue of the powers vested in me by law, herebydeclare that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the
executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some
members of the political opposition in a plot to unseat or assassinate President Arroyo. [4] They considered the aim to oust or
assassinate the President and take-over the reigns of government as a clear and present danger.
and

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017
G.O. No. 5. Significantly, there was no refutation from petitioners counsels.

The Solicitor General argued that the intent of the Constitution is to give fulldiscretionary powers to the President in
determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was
without factual bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and
First Lieutenants Sonny Sarmiento, Lawrence San Juan
and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to
show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but
also by wearing red bands on our left arms. [5]

On February 17, 2006, the authorities got hold of a document entitled Oplan
and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City.
including some cabinet members and President Arroyo herself.[6] Upon the advice of
attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb
ground.

Hackle I which detailed plans for bombings

The plot was to assassinate selected targets
her security, President Arroyo decided not to
was found and detonated at the PMA parade

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National
Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. [7] Prior to his arrest,
Lt. San Juan announced through DZRH that the Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force
were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to disavowany defection.
The latter promptly obeyed and issued a public statement: All SAF units are under the effective control of responsible and trustworthy
officers with proven integrity and unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen
and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported
that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is
ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite
Scout Ranger. Lim said it was all systems go for the planned movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed
Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to
the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen.
Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal declared:
The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of
accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take
much longer to end it.[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly
announced: Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field. He claimed that with the

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forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also
considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the
gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure
that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break
loose on the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities related to the
20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments.
Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrests and take-over of
facilities, including media, can already be implemented.[11]
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members
of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts
of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and
tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at
the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of partylist Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City
were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another proopposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell media
outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP warned that it would take
over any media organization that would not follow standards set by the government during the state of national
emergency. Director General Lomibao stated that if they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will
recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks
to cooperate with the government for the duration of the state of national emergency. He asked for balanced reporting from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is
threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and
Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of
PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo
Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the
Batasan 5 decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not
being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent.

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In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding
the Daily Tribune offices as a clear case of censorship or prior restraint. They also claimed that the term emergency refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no emergency that warrants the issuance of
PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of
the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative powers; violation of freedom of
expression and a declaration of martial law. They alleged that President Arroyo gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do
so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without
factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional
because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article
VI, and (d) Section 17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and unlawful exercise by
the President of her Martial Law powers. And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
it amounts to an exercise by the President of emergency powers without congressional approval. In addition, petitioners asserted
that PP 1017 goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are unconstitutional for
being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution. In this regard, she stated
that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that:first, the petitions should be dismissed for
being
moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escuderoet al.)
and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free
expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be
summarized as follows:
A.

PROCEDURAL:
1)

Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R.

al.), 171489 (Cadiz et al.), and 171424(Legarda) have legal standing.
B.

Nos.

171400 (ALGI), 171483 (KMU et

SUBSTANTIVE:
1)

Whether the Supreme Court can review the factual bases of PP 1017.

2)

Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A.

PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v.
Madison.[21] This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority.
It confers limited powers on the national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in
the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial
review.[22]

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But the power of judicial review does not repose upon the courts a self-starting capacity. [23] Courts may exercise such power
only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is
definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy
admitting of specific relief.[25] The Solicitor General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered moot and academic by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, [26] so that a
declaration thereon would be of no practical use or value. [27] Generally, courts decline jurisdiction over such case [28] or dismiss it on
ground of mootness.[29]
The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the
vital issues that must be resolved in the present petitions. It must be stressed that an unconstitutional act is not a law, it confers
no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.[30]
The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; [31]second, the
exceptional character of the situation and the paramount public interest is involved; [32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; [33] and fourth, the case is capable of repetition yet
evading review.[34]
All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the
issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly
and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.[35] And lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans
Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into account the Chief Justices very statement
that an otherwise moot case may still be decided provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance. The present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.
Locus standi is defined as a right of appearance in a court of justice on a given question. [37] In private suits, standing is
governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the realparty-in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a public right in assailing
an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication
of the public order and the securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first
laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of mere
public right, howeverthe people are the real partiesIt 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
taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the
more stringent direct injury test in Ex Parte Levitt,[42] later reaffirmed inTileston v. Ullman.[43] The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all
members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera,[44] it held that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,[45] Manila Race
Horse Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v.
Felix.[48]

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However, being a mere procedural technicality, the requirement of locus standimay be waived by the Court in the exercise of
its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the transcendental
importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,[50] this Court resolved to pass upon the issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases
where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to
sue under the principle of transcendental importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled thatthe enforcement of the constitutional
right to information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial review of the Visiting Forces
Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in their capacity
as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress taxing or spending
powers, it
reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,[55] that in cases of
transcendental importance, the cases must be settled promptly and definitely and standing requirements
may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned
citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:
(1)
(2)
(3)

the cases involve constitutional issues;

for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4)

for concerned citizens, there must be a showing that the issues raised are of transcendental importance which
must be settled early; and

(5)

for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as
legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peoples organization does not give it the
requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a
concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court reiterated the direct injury
test with respect to concerned citizens cases involving constitutional issues. It held that there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal official act.
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-ininterest as it had not demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of Congress have standing to
sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress,
thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury resulting from illegal
arrest and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue
of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are
used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to
the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,
[62]
Basco v. Philippine Amusement and Gaming Corporation,[63] and Taada v. Tuvera,[64] that when the issue concerns a public right, it
is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.

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In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed
sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.[65] We take
judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no
legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, [66] the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of
the transcendental importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of
illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a
legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is
a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of
no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more
the transcendental importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of
judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of
PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in
the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency,[67] may not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains accountable to the people[68] but he may be removed from
office only in the mode provided by law and that is by impeachment.[69]

B. SUBSTANTIVE
I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessary for President Arroyo to issue such
Proclamation.
The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power
has reached its distilled point - from the indulgent days of Barcelon v. Baker[70]
and Montenegro v. Castaneda[71] to the
volatile era of Lansang v.
Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across
the line defining political questions, particularly those questions in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government. [75] Barcelon and Montenegro were in unison in declaring that theauthority to
decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the
authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of checks and balances, under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and
the authority to determine whether or
not he has so acted is vested
in the Judicial Department, which in this respect, is, in
turn,
constitutionally supreme.[76] In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court
was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political
or justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that in times of war or national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his
conscience, the People, and God.[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these cases at bar -- echoed a principle
similar to Lansang. While the Court considered the Presidents calling-out power as a discretionary power solely vested in his
wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a
result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are
authorized not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. The latter part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82]

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As to how the Court may inquire into the Presidents exercise of power, Lansangadopted the test that judicial inquiry can go
no further than to satisfy the Court not that the Presidents decision is correct, but that the President did not act arbitrarily. Thus,
the standard laid down is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis and that if he fails, by
way of proof, to support his assertion, then this Court cannot undertake an independent investigation beyond the pleadings.

Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of
factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of theMagdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to
prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must
not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various
political theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the
problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative power to
act according to discretion for the public good, without the proscription of the law and sometimes even against it .[84] But
Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for
resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that the
people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain
cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their
operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign
authority. In such a case, there is no doubt about the general will, and it clear that the peoples first intention is that
the State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme magistracy as he termed it. For him, it would
more likely be cheapened by indiscreet use. He was unwilling to rely upon an appeal to heaven. Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: I am far from condemning, in cases of
extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.[88]

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Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an
ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for
although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for
good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will
ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules
for applying it.[89]
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional dictatorship. [91] Frederick M. Watkins saw no reason why absolutism
should not be used as a means for the defense of liberal institutions, provided it serves to protect established institutions
from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous
forms of political life.[92] He recognized the two (2) key elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the executive, while at the same time imposing limitation upon
that power.[93] Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in
characterFinal authority to determine the need for dictatorship in any given case must never rest with the dictator
himself[94] and the objective of such an emergency dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] It is a problem of concentrating power in a
government where power has consciously been divided to cope with situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to
what end.[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: The emergency
executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar,
Germany and the United States, reverted to a description of a scheme of constitutional dictatorship as solution to the vexing
problems presented by emergency.[98] Like Watkins and Friedrich, he stated a priorithe conditions of success of the constitutional
dictatorship, thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless
it is necessary or even indispensable to the preservation of the State and its constitutional order

2) the decision to institute a constitutional dictatorship should never be in the hands of the man
or men who will constitute the dictator

3) No government should initiate a constitutional dictatorship without making specific provisions

for its termination
4) all uses of emergency powers and all readjustments in the organization of the government
should be effected in pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered
any more than is absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect
7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute one should
never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted
11) the termination of the crisis must be followed by a complete return as possible to the political
and governmental conditions existing prior to the initiation of the constitutional dictatorship[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of
congressional investigating committees.[100]

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Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, the
suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the
nation is not based upon sound constitutional theory. To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term dictator is used in its normal sense (as
applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used,
constitutional dictatorship cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they
favored instead the concept of constitutionalism articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers,
and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by
any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need
to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that
the historical and proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that
the really effective checks on despotism have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant difference. In associating constitutionalism
with limited as distinguished from weak government, McIlwain meant government limited to the
orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists - from Locks theory of
prerogative, to Watkins doctrine of constitutional dictatorship and, eventually, to McIlwains principle of constitutionalism
--- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power
to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under
effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons balanced
power structure.[102] Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch
is given a role to serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same
time, it obliges him to operate within carefully prescribed procedural limitations.

a. Facial Challenge
Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its enforcement
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a chilling effect to the
citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces statutes in free
speech cases, also known under the American Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call
upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that
we have not recognized an overbreadth doctrine outside the limited context of the First Amendment (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection
and rebellion are considered harmful and constitutionally unprotected conduct. In Broadrick v. Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine when a law may properly be held void on its face and
when such summary action is inappropriate.But the plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction
moves from pure speech toward conduct and that conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct.[106] Here, the incontrovertible fact remains that PP 1017
pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a last
resort, and is generally disfavored;[107] The reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. [108] A writer and scholar in
Constitutional Law explains further:

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The most distinctive feature of the overbreadth technique is that it marks an exception to some of
the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers
to a law are not permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute on its face, not merely as applied for so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the chilling; deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad laws very existence may
cause others not before the court to refrain from constitutionally protected speech or expression. An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its
flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,[109] it was held
that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination
of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt
to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if
men of common intelligence must necessarily guess at its meaning and differ as to its application.[110] It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their faces statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:
by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion
Second provision:
and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction;

Third provision:
as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency.
First Provision: Calling-out Power
The
first
provision
pertains
to
the
Presidents
calling-out
power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting

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jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial
Law. CitingIntegrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out
power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless
violence, invasion or rebellion. Are these conditions present in the instant cases? As stated earlier, considering the circumstances
then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the
best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion
and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power
when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a state of rebellion
(in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a state of
rebellion emanates from her powers as Chief Executive, the statutory authority cited inSanlakas was Section 4, Chapter 2, Book II of
the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is made
to depend, shall be promulgated in proclamations which shall have the force of an executive order.
President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public moment or
interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over
privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of anawesome
power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a warn[ing] to citizens that the military power has been called upon by the executive to assist in
the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of order and the enforcement of law. [113]
In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V. Mendoza, [114] an
authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle
or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the
armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies;
(c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.

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Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of
President Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: Take Care Power
The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on
Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary function of the President is to enforce the laws as
well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines,
he will, among others, execute its laws.[116] In the exercise of such function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause
to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction.
Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted[120] from Former
President Marcos Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers
vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.
Is it within the domain of President Arroyo to promulgate decrees?
PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me personally or
upon my direction.
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of
1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall
be promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate
or temporary interest which only concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which
the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commanderin-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued
by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the
1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to
promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states
that [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos
exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?

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As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the
military not only to enforce obedience to all the laws and to all decrees x x x but also to act pursuant to the provision of Section 17,
Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President,
without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business
affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of the 1971
Constitutional Convention.[122] In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September
22, 1972 instructing the Secretary of National Defense to take over the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national emergency.

Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17,
Article XII in PP 1017 is an encroachment on the legislatures emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare a state of national emergency
and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry
out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon
the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to other national
emergency. If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a state of
national emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a state of national emergency. The logical conclusion then is that President Arroyo could validly
declare the existence of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with
public interest, is a different matter. This requires a delegation from Congress.

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Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in
the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI
authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the
Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain
conditions, thus

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policydeclared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17
states that the the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately owned public utility or business affected with public interest , it refers to Congress, not
the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of
the Constitution. And it is not claimed that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say that The executive Power shall be
vested in a President . . . .; that he shall take Care that the Laws be faithfully executed; and that he shall be
Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the Presidents military power as Commander-inChief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers
in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here. Even though theater of war be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such
to take possession of private property in order to keep labor disputes from stopping production. This is a
job for the nations lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the Presidents power to see that
the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he
thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that All legislative Powers herein granted
shall be vested in a Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 17, Article XII refers to tsunami,
typhoon, hurricane andsimilar occurrences. This is a limited view of emergency.
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life
or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception.
[127]
Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,[129] and c)national security.[130]
Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.[131] This is evident in the
Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of national emergency which appears in Section 13,
page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.

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MR. VILLEGAS. What I mean is threat from external aggression, for example,calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term national emergency.
MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.[132]
x

MR. TINGSON. May I ask the committee if national emergency refers tomilitary national emergency or
could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate
to the President the power to take over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which extraordinary measures are exercised,
remains in Congress even in times of crisis.
x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people
by adopting parliamentary government have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic features of whose Constitution have been copied
in ours, have specific functions of the legislative branch of enacting laws been surrendered to another
department unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-anddeath struggle to preserve the Union. The truth is that under our concept of constitutional government, in
times of extreme perils more than in normal circumstances the various branches, executive, legislative,
and judicial, given the ability to act, are called upon to perform the duties and discharge the
responsibilities committed to them respectively.
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that
such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation,
he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide
whether exceptional
circumstances exist warranting the take over of privately-owned
public utility or business affected with
public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the
freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on
their way to EDSA to celebrate the 20thAnniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives raided and ransacked without warrant their office. Three policemen were assigned to guard their office as a possible
source of destabilization. Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were turned away and
dispersed when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the direct injuries allegedly suffered by the said petitioners shows that they resulted from the implementation,
pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the
illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused[135] and may afford an opportunity for abuse in the manner of application.[136] The validity of a statute or ordinance is to
be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.

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[137]

PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all
forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP
1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the
citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal
acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.[138]This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were
so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are acts and commands of
the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines. They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficientadministration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives them.[139] They are based on and are the product of,
a relationship in which power is their source, and obedience, their object. [140] For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
Unlike the term lawless violence which is unarguably extant in our statutes and the Constitution, and which is invariably
associated with invasion, insurrection or rebellion, the phrase acts of terrorism is still an amorphous and vague
concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed definition of terrorism confronts not only our country,
but the international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the fight against terrorism has become one of the
basic slogans when it comes to the justification of the use of force against certain states and against groups operating
internationally. Lists of states sponsoring terrorism and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or threats of the use of force as the most recent by
the United States against Iraq consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by
armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying One countrys terrorist is another countrys freedom
fighter. The apparent contradiction or lack of consistency in the use of the term terrorism may further be
demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South
Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as
terrorists by those who controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts the differentia specificadistinguishing those acts from
eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable
to bridge the gap between those who associate terrorism with any violent act by non-state groups against
civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or
religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist
group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups who are
terrorists in the perception of India, liberation fighters in that of Pakistan the earlier Contras in Nicaragua freedom
fighters for the United States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West,
nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating

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examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests
that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the
same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in
the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism will fluctuate
accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory
and will therefore speak of a liberation struggle, not of terrorism when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly
because of these conflicting interests of sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A policy of
double standards on this vital issue of international affairs has been the unavoidable consequence.

This definitional predicament of an organization consisting of sovereign states and not of peoples, in
spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in the present
global power constellation: one superpower exercises the decisive role in the Security Council, former great powers
of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become
even more acute since the terrorist attacks of 11 September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse and oppression on the part of the police or military. An
illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as
an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must
be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by
President Marcos during the Martial Law regime. This decree is entitled Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations. The word terrorism is mentioned in the following
provision: That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by
force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President
Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of terrorism. Since there is no law defining
acts of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute
terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the callingout power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the acts
of terrorism portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts
are considered illegal.

We first examine G.R. No. 171396 (David et al.)

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The Constitution provides that the right of the people to be secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to
be seized.[142] The plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is
that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen who
held his head and tried to push him inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa
Bilang
No. 880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually
released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and

x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the
charges
of
inciting
to
sedition andviolation
of
BP 880, all that the arresting officers could invoke
was their
observation that some rallyists were wearing t-shirts with the invective Oust Gloria Now and their erroneous assumption that
petitioner David was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is
insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation
of BP 880 as it was not even known whether petitioner David was the leader of the rally.[147]

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But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but
also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.

Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression,
this right is not to be limited, much less denied, except on a showing of aclear and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to
previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government
authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges of inciting to seditionand violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is
not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers,
but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against
the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R.
No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of
the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent.[149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They
have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. [150] The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by
government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.

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G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the
press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the police operatives seized several materials for publication; third, the
search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of
any official of theDaily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was meant to show a strong presence, to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government. Director General Lomibao further stated that if they do not follow the standards
and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend atakeover. National Telecommunications Commissioner
Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules
set out for media coverage during times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful
occupantthereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time
of the day or night. All these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in
the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan
Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were
padlocked and sealed, with the further result that the printing and publication of said newspapers were
discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to
express themselves in print. This state of being is patently anathematic to a democratic framework where a
free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail and We Forum
newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning
of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen
that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its antigovernment sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of
our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts
to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always
be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure
of its materials for publication and other papers are illegal; and that the same are inadmissible for any purpose, thus:

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JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected
the Tribune for the purpose of gathering evidence and you admitted that the policemen
were able to get the clippings. Is that not in admission of the admissibility of these
clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your
Honor, and these are inadmissible for any purpose.[155]

xxx

xxx

xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to
get those past issues. So why do you have to go there at 1 oclock in the morning and
without any search warrant? Did they become suddenly part of the evidence of rebellion
or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is
not based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which
says that the police could go and inspect and gather clippings from Daily Tribune or any
other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

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SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say
this, we do not condone this. If the people who have been injured by this would
want to sue them, they can sue and there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and
cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the
President for, as you said, a misapplication of the law. These are acts of the police officers, that is
their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and should result in no
constitutional or statutory breaches if applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this
point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts
which violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part
of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this
case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media
reports on April 30, 2006 that allegedly PP 1017 would be reimposed if the May 1 rallies become unruly and
violent. Consequently, the transcendental issues raised by the parties should not be evaded; they must now be resolved to
prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees

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promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of
a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief
addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard that the
military and the police should take only the necessary and appropriate actions and measures to suppress and prevent acts of
lawless violence. But the words acts of terrorism found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While terrorism has been denounced generally in media, no law
has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this
portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of
petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual
rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth
and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that,
it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 isCONSTITUTIONAL insofar as it constitutes a
call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of
the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility
or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e.
whatever is necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declaredUNCONSTITUTIONAL.

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The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLUKMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence,
invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as
the warrantless search of theTribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

EN BANC
G.R. No. 78239 February 9, 1989
SALVACION A. de c, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by
the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of
Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day ofprision correccional as minimum, to ten (10) years and one (1) day
of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government
in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for
reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute
pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant
city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code
transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1,
1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier
than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which
the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed
on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of
her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay
for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15,
1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was
convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty
in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the
Sandiganbayan, 2nd Division, inPeople v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute
pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to
payment of his salaries, benefits and emoluments due to him during the period of his suspensionpendente lite.
In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former
position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case
exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2).

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IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic
reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position
and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous
conviction. 3
Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course
on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended
executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that
final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained
"suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no
offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and
sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day
of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary absolute
disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. 6 Even if
the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by
the pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal
consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly
in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the
subject has been largely influenced by American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act
of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A
pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a
At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in
the April 7, 1981 plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and
forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it
may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the
result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed
conviction by the Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive
question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon:
"... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations
imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not
only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better
view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive
who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely
the party ... concerned from the accessory and resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application of the doctrinal
case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that
much of its relevance has been downplayed by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon
is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as
innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and
disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and

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disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and
capacity. 14
Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now rejects the
unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of
a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of
guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all
purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the
commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not
forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the
punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him
from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to
ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though
pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than
one never found guilty of crime, though it places no restraints upon him following his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has been suffered by
the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense
has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been
rightfully done and justly suffered, and no satisfaction for it can be required." 20This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she
was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that all or even a major number of
pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which
we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the
most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a
conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal
consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that
once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot
perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has
constantly maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and
forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But
unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing. 24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held
opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the
conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good.
They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the
pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude
the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by
reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the
punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities
referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her
qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into
account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to
petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her
former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot
oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or
for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be
extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of
the rights of creditor and debtor, compensation and novation. 27

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WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is
AFFIRMED. No costs.
SO ORDERED.
Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., concurs in the result.
Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged
before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were
convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten
(10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and
severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration
but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which
she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the
Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive
suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well as her other claims, because
of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of
the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute
pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other
reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art. 36 of the Revised Penal Code
categorically covers the effects of a pardon on the pardoned's right to hold office, suffrage and on his civil liability. It states:
ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the
petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to
suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was granted "an absolute and unconditional pardon
and restored to full civil and political rights", yet, nothing therein expressly provides that the right to hold public office was thereby
restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the
petitioner.
It is a recognized principle in public law hopefully to be honored more in its compliance rather than in its breach that a "public
office is a public trust." The restoration of the right to hold public office to one who has lost such right by reason of conviction in a
criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express,
explicit, positive and specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be
understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to
include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of
the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of
the Revised Penal Code, particularly in the light of our times and experience.

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ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.
FELICIANO, J., concurring:
I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of
Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised
Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of commutation or
pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years
following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties ofreclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualificationwhich the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the
pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry with it that of
suspension from public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public
documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual
special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written
on a standard printed form which states inprinted words that it was "an absolute and unconditional pardon [which] restored [petitioner]
to full civil and political rights." 1 While the right of suffrage and the right to hold public office or employment are commonly regarded as
"political rights," 2 it must be noted that there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in
printer's ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43
appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same
point may, of course, be made in respect of the restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have
been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987
Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions.
The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes
on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her disqualification from holding public
employment but it cannot go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction
on the pardoning power of the President. The limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is
intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting
and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems
entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of
the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and
sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon
has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote to
DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

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Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged
before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were
convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten
(10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and
severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration
but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which
she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the
Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive
suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well as her other claims, because
of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of
the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute
pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other
reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art. 36 of the Revised Penal Code
categorically covers the effects of a pardon on the pardoned's right to hold office, suffrage and on his civil liability. It states:
ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the
petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to
suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was granted "an absolute and unconditional pardon
and restored to full civil and political rights", yet, nothing therein expressly provides that the right to hold public office was thereby
restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a
pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the
petitioner.
It is a recognized principle in public law-hopefully to be honored more in its compliance rather than in its breach that a "public office is a
public trust." The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case,
but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit,
positive and specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be
understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to
include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of
the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of
the Revised Penal Code, particularly in the light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
Melencio-Herrera, Sarmiento, JJ., concur.

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FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of
Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised
Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of commutation or
pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years
following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties ofreclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualificationwhich the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the
pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall carry with it that of
suspension from public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public
documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual
special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written
on a standard printed form which states inprinted words that it was "an absolute and unconditional pardon [which] restored [petitioner]
to full civil and political rights." 1 While the right of suffrage and the right to hold public office or employment are commonly regarded as
"political rights," 2 it must be noted that there are other "political rights" 3 and that the pardon given to petitioner did not expressly and in
printer's ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43
appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same
point may, of course, be made in respect of the restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have
been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987
Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions.
The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes
on, however, to say (in page 13) that: "the pardon granted to petitioner has resulted in removing her disqualification from holding public
employment but it cannot go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction
on the pardoning power of the President. The limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is
intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting
and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems
entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of
the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and
sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon
has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote to
DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.
Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

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De Castro vs JBC
DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections
on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President
appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately before the next presidential elections and up to the end of
his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that
any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to
succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under
Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC?

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002 [1] and G.R. No. 191149[2] as
special civil actions for certiorari andmandamus, praying that the JBC be compelled to submit to the incumbent President the list of at
least three nominees for the position of the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its
search, selection and nomination proceedings for the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution Association (PHILCONSA) wants the
JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive
Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for
the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr.
and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to
enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during
the period provided for in Section 15, Article VII
All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor
of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation,
because the appointment of the Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),
[7]
by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial
positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds
that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential
elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to
appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment
of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees,
whether to the incumbent President or to her successor.[8] He opines that the JBC is thereby arrogating unto itself the judicial function
that is not conferred upon it by the Constitution, which has limited it to the task of recommending appointees to the Judiciary, but has
not empowered it to finally resolve constitutional questions, which is the power vested only in the Supreme Court under the
Constitution. As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees
to the President; and that a final and definitive resolution of the constitutional questions raised above would diffuse ( sic) the tension in
the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess
of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the
position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the
Supreme Court itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC
should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox and exceptional circumstances spawned
by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9,
Art. VIII of the Constitution have bred a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided
the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people, thereby
fashioning transcendental questions or issues affecting the JBCs proper exercise of its principal function of recommending appointees
to the Judiciary by submitting only to the President (not to the next President) a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy from which the members of the Supreme Court and judges of the lower courts may be appointed.

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[11]

PHILCONSA further believes and submits that now is the time to revisit and reviewValenzuela, the strange and exotic Decision of the
Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to immediately transmit to the President,
within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S.
Puno, in compliance with its mandated duty under the Constitution in the event that the Court resolves that the President can appoint a
Chief Justice even during the election ban under Section 15, Article VII of the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the JBC has initiated the process
of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the
position, and is perilously near completing the nomination process and coming up with a list of nominees for submission to the
President, entering into the period of the ban on midnight appointments on March 10, 2010, which only highlights the pressing and
compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within
the period of the ban on midnight appointments.[14]
Antecedents

These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice
Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article
VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC,
requesting that the process for nominations to the office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the
position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice
Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on the list of
candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public
interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing
laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose
its announcement dated January 20, 2010,[16] viz:
The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position
of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the
incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4 February
2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the
Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice
Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However,
the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally
withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without
conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D.
Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were
Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales. [19] Declining their nominations were Atty. Henry
Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr.
(via telephone conversation with the Executive Officer of the JBC on February 8, 2010).[20]

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The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and
Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to
invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate
Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice
Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues
of February 13, 2010.[22]

Issues
Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the
JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us
being yet unresolved. In the meanwhile, time is marching in quick step towardsMay 17, 2010 when the vacancy occurs upon the
retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters,
and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not.Petitioner
Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this
issue now before us as an administrative matter to avoid any possible polemics concerning the matter, but he opines that the polemics
leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in regard to the current controversy,
and that unless put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of
whoever is appointed to the position of Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.
G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent
President can appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority to appoint during the election ban the successor of
Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Courten banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only
to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the
Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded
by the exigencies of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who
manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination
will be submitted to the next President in view of the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?

A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9,
Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that
for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria MacapagalArroyo?

G.R. No. 191342

a.

Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a
grave violation of the Constitution and jurisprudence prohibiting the incumbent President from

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making midnight appointments two months immediately preceding the next presidential elections until the end of
her term?

b.

Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice,
constitutionally invalid in view of the JBCs illegal composition allowing each member from the Senate and the
House of Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the
consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of
the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of
candidates, including the interview of the constitutional experts, as may be needed.[24] It stated:[25]
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing
authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII
of the Constitution concerning the ban on Presidential appointments two (2) months immediately before
the next presidential elections and up to the end of his term and Section 261 (g), Article XXII of the
Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its
decision in these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the
Constitution to recommend appointees in the Judiciary; (b) the JBCs function to recommend is a continuing process, which does not
begin with each vacancy or end with each nomination, because the goal is to submit the list of nominees to Malacaang on the very day
the vacancy arises;[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the
nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno; [27] (c) petitioner
Sorianos theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as
referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to
submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and
the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of
whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice
and, therefore, has no discretion to withhold the list from the President; [29] and (e) a writ of mandamuscannot issue to compel the JBC
to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude
from the list particular individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an exercise of a
discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section
15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme
Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; [31] that in their
deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the
ban against midnight appointments, or its effects on such period, or vice versa;[32] that had the framers intended the prohibition to apply
to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition
found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in
Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its
independence from political vicissitudes and its insulation from political pressures, [33] such as stringent qualifications for the positions,
the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the
appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there
might be the imperative need for an appointment during the period of the ban, like when the membership of the Supreme Court should
be so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be
divided;[34] and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief
Justice, to wit: (a) a deluge of cases involving sensitive political issues is quite expected; [36] (b) the Court acts as the Presidential
Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the
President and Vice President and, as such, has the power to correct manifest errors on the statement of votes (SOV) and certificates of
canvass (COC);[37] (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence
of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice
immediately upon the retirement of Chief Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection
process for the filling up of the vacancy in accordance with the constitutional mandate.[39]

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);

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(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter
and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P.
Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement
of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap
(KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa
Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of
Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae
Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);
(i)

The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza
Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta.
Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castros petition was bereft of
any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments
from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does
not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan
adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then
President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the
vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional
prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence
that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the
appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does
not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor
of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of
three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears are
unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national
interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis
in the judicial system and will worsen an already vulnerable political situation.

ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach
the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the
law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that
a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not
only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice
was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice
Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of
the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule
of succession has been repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense
the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any
government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to
appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election
Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur
only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of nominees by the JBC to the incumbent President is offtangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a
vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will
be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the
President; and that the Court, inValenzuela, ruled that the appointments by the President of the two judges during the prohibition period
were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive
Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and
that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

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Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief Justice is vested, not
in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as
contemplated under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that
the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the
allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to
submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasi-judicial body has no duty under
the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition;
that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that
should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of
the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of
separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to the Supreme Court is
purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list
of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme
Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only
begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law.
The main question presented in all the filings herein because it involves two seemingly conflicting provisions of the
Constitution imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively
and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the
entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the
controversy; second, to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long
period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for
the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a given question.[41] 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.:[42]
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.
[43]
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.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court adopted thedirect 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,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] Anti-Chinese League of
the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]
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,[50] the Court liberalized the approach when the
cases had transcendental importance. Some notable controversies whosepetitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] 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, permittingordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53]
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 taxpayerto 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,[54] the Court aptly explains why:

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Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens 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:[56] In matter of mere public right, howeverthe people are the real
partiesIt 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 taxpayers suits, Terr
v. Jordan[57] 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. [58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as
citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice.
De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in
the JBC, which involve unnecessary, if not, illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending,
protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its
legal standing to file cases on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the
active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and
the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern
Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to
the President, for [a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with
regard to respondent JBCs function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to
ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who
are specifically tasked to perform crucial functions in the whole scheme of our democratic institution. They further allege that, reposed
in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the
selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision
and authority over them and other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest
them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the
petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest in life,
because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring
incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies
in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when
the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle
or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty
by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,[63] we
pointed out: Standing 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. But even if, strictly speaking, the petitioners are not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering
that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no
imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming
President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that
petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to
the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the
Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague allegation of political
tension, which is insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President
should do, and are not invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the
petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law
students on the issues published in the daily newspapers are matters of paramount and transcendental importance to the bench, bar
and general public; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate
what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict
of rights, but, instead, prays that the Court should rule for the guidance of the JBC; that the fact that the Court supervises the JBC does
not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves
oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules,

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then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the
Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to
correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the
JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the
President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet
vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether
to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial
determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the
interview of constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence
from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section
4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be
it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to
open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the
petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the
intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted
instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from
making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that
the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of
the controversy, considering that for some the short list must be submittedbefore the vacancy actually occurs by May 17, 2010. The
outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle with finality the
nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading
the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly
proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to
afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.
[65]
Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments,except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition
against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously
drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions
of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest
their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among
the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional
Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech:

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We have in the political part of this Constitution opted for the separation of powers in government because we
believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of
government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial
departments.[66]
As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the
Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court,
among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court
Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the
submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President making appointments within two months before the next
presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme
Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed that
the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the
prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned,
should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the original proposal was
to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices
to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be filled within two months from the date that the
vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire
to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies,
Lerum proposed the insertion in the provision (anent the Courts membership) of the same mandate that IN CASE OF
ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later
agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was
approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that
the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any vacancyshall be filled within ninety days
(in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is
couched in stronger negative language - that a President or Acting President shall not make appointments
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this
Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to
provide a uniform rule for lower courts. According to him, the 90-day period should be counted from submission of the
list of nominees to the President in view of the possibility that the President might reject the list submitted to him and
the JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power two
months immediately before the next presidential elections up to the end of his term - was approved without
discussion.[68]
However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the
contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative ofCommissioner
Eulogio Lerum, a command [to the President] to fill up any vacancy therein within 90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986further show
that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are
only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: Any vacancy shall be filled within
ninety days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

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MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the
Court had a complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be
enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of
a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear
disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish adefinite mandate for the President as the appointing power, and cannot be defeated by
mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative
language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations
on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:
[72]

xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize
and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that
matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict
may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by
considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the
provisions reconciled.
Consequently, that construction which will leave every word operative will be favored over one which leaves
some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so
gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to
the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which
are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has
been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute,
the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the
rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict
exists between different sections of the same act, and after all other means of ascertaining the meaning of the
legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rules
application, largely because of the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuelais timely and appropriate. Valenzuela arbitrarily
ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently ofany other
provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation
that defeats the intent of the framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to
appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.[74] It will not do to merely distinguishValenzuela from these cases, for the result to be reached herein is
entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the
unworthy and forgettable.

We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to
eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the
leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for
buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the
two months preceding a Presidential election and are similar to those which are declared election offenses in the
Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the socalled midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as
duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than
a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming
President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in
one night and the planned induction of almost all of them in a few hours before the inauguration of
the new President may, with some reason, be regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive the new administration of an
opportunity to make the corresponding appointments.
As indicated, the Court recognized that there may well be appointments to important positions which have to
be made even after the proclamation of the new President. Such appointments, so long as they are few and so
spaced as to afford some assurance of deliberate action and careful consideration of the need for the

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appointment and the appointees qualifications, can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed
to contemplate not only midnight appointments those made obviously for partisan reasons as shown by
their number and the time of their making but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII allowing appointments to be made
during the period of the ban therein provided is much narrower than that recognized in Aytona. The exception allows
only the making oftemporary appointments to executive positions when continued vacancies willprejudice public
service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during
the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on
the President's power of appointment, it is this Courts view that, as a general proposition, in case of conflict, the
former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the disposition of some cases.Temporary vacancies can abide the
period of the ban which, incidentally and as earlierpointed out, comes to exist only once in every six years. Moreover,
those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are longlasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and,
for that reason, their making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional
Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening
of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer
be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or
made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming
President or for partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC would not be suffering from
such defects because of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment
of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for
the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.
[78]

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President
could not always be assured of being recommended for the consideration of the President, because they first had to undergo the
vetting of the JBC and pass muster there. Indeed, the creation of the JBC wasprecisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating process was absent from
the Aytonamidnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then
Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about
the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the
basis of the (Constitutional) Commissions records, the election ban had no application to appointments to the Court of Appeals. [79] This
confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies
in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice
Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the
deliberations of the Constitutional Commission. Much of the unfounded doubt about the Presidents power to appoint during the period
of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of
the President.
Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President, [81] and
evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will.
[82]
The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes
the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level
courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be
removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby,
the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to
the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to
appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that
Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must
be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient

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to the general intent of the whole enactment. [84] It is absurd to assume that the framers deliberately situated Section 15 between Section
14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the
intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments.
Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in
a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the
next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the
prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be
about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement
by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section
4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on
May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115
days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the
full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the
difference between the shortest possible periodof the ban of 109 days and the 90-day mandatory period for appointments) in which the
outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to
assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory
period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned,
nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa.
They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the
lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the
President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme
Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for any vacancy. Such appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court
aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the
Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances
permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce
Enriles statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.

II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that
the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief Justice of the
Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate
Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly
qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that
the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the
Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the
disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of
consequence, we do not find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices,
who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which

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appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed
by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors
the idea that the framers contemplated anActing Chief Justice to head the membership of the Supreme Court. Otherwise, they would
have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the
imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting
or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only
responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to
perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation
process might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first
in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and
whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire
Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the
Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next
Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period fromMay 17, 2010, there is
no justification to insist that the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an
incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As
summarized in the comment of the OSG, the chronology of succession is as follows:

1.

When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the
same day;

2.

When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;

3.

When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;

4.

When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into
office the following early morning of November 30, 1998;

5.

When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the
next day, December 20, 2005; and

6.

When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as
Chief Justice at midnight ofDecember 6, 2006.[85]

III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the
law specifically enjoins as a duty resulting from an office, trust, or station. [86] It is proper when the act against which it is directed is one
addressed to the discretion of the tribunal or officer.Mandamus is not available to direct the exercise of a judgment or discretion in a
particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it
must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the
performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every
vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President
from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission
of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90
days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day
period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy
in the Supreme Court beforethe occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the
Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy.

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The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed
by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that
it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day period to appoint is
ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of
the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for
every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing
that duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending
nominees to the Judiciary, that is, in submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been delineated in the following manner:
The distinction between a ministerial and discretionary act is well delineated. Apurely ministerial act or duty is one
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The
actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit
the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence,
Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating
the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against
the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate
and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number
of votes required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged
in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on
that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition
for mandamus in G.R. No. 191057 for being premature;
2.

Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3.

Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May
17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to
the President the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.

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EN BANC
ERNESTO B. FRANCISCO, JR., G.R. No. 166501 vs HON. BAYANI F. FERNANDO, in his capacity as Chairman of the
Metropolitan Manila Development Authority, and METROPOLITAN MANILA DEVELOPMENT Promulgated: AUTHORITY,
Respondents. November 16, 2006
x--------------------------------------------------x
RESOLUTION

CARPIO, J.:
Petitioner Ernesto B. Francisco, Jr. (petitioner), as member of the Integrated Bar of thePhilippines and taxpayer, filed this original action
for the issuance of the writs of Prohibition and Mandamus. Petitioner prays for the Prohibition writ to enjoin respondents Bayani F.
Fernando, Chairman of the Metropolitan Manila Development Authority (MMDA) and the MMDA (respondents) from further
implementing its wet flag scheme (Flag Scheme). [1] The Mandamus writ is to compel respondents to respect and uphold the x x x rights
of pedestrians to due process x x x and equal protection of the laws x x x.

Petitioner contends that the Flag Scheme: (1) has no legal basis because the MMDAs governing body, the Metro Manila
Council, did not authorize it; (2) violates the Due Process Clause because it is a summary punishment for jaywalking; (3) disregards the
Constitutional protection against cruel, degrading, and inhuman punishment; and (4) violates pedestrian rights as it exposes
pedestrians to various potential hazards.[2]
In their Comment, respondents sought the dismissal of the petition for petitioners lack of standing to litigate and for violation of the
doctrine of hierarchy of courts. Alternatively, respondents contended that the Flag Scheme is a valid preventive measure against
jaywalking.

Petitioner filed a Reply, claiming that the Court should take cognizance of the case as it raises issues of paramount and transcendental
importance. Petitioner also contended that he filed this petition directly with the Court because the issues raised in the petition deserve
the direct x x x intervention of the x x x [C]ourt x x x.

We dismiss the petition.

A citizen can raise a constitutional question only when (1) he can show that he has personally suffered some actual or threatened injury
because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) a favorable
action will likely redress the injury.[3] On the other hand, a party suing as a taxpayer must specifically show that he has a sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute.[4] Petitioner meets none of the requirements under either category.
Nor is there merit to petitioners claim that the Court should relax the standing requirement because of the transcendental importance of
the issues the petition raises.As an exception to the standing requirement, the transcendental importance of the issues raised relates to
the merits of the petition.[5] Thus, the party invoking it must show, among others, the presence of a clear disregard of a constitutional or
statutory prohibition.[6] Petitioner has not shown such clear constitutional or statutory violation.
On the Flag Schemes alleged lack of legal basis, we note that all the cities and municipalities within the MMDAs jurisdiction, [7] except
Valenzuela City, have each enacted anti-jaywalking ordinances or traffic management codes with provisions for pedestrian regulation.
Such fact serves as sufficient basis for respondents implementation of schemes, or ways and means, to enforce the anti-jaywalking
ordinances and similar regulations. After all, the MMDA is an administrative agency tasked with the implementation of rules and
regulations enacted by proper authorities.[8] The absence of an anti-jaywalking ordinance in Valenzuela City does not detract from this
conclusion absent any proof that respondents implemented the Flag Scheme in that city.
Further, the petition ultimately calls for a factual determination of whether the Flag Scheme is a reasonable enforcement of antijaywalking ordinances and similar enactments. This Court is not a trier of facts.[9] The petition proffers mere surmises and speculations
on the potential hazards of the Flag Scheme. This Court cannot determine the reasonableness of the Flag Scheme based on mere
surmises and speculations.
Lastly, petitioner violated the doctrine of hierarchy of courts when he filed this petition directly with us. This Courts jurisdiction
to issue writs of certiorari, prohibition, mandamus, quo warranto, and habeas corpus, while concurrent with the Regional Trial Courts
and the Court of Appeals, does not give litigants unrestrained freedom of choice of forum from which to seek such relief.[10] We relax this
rule only in exceptional and compelling circumstances.[11] This is not the case here.
WHEREFORE, we DISMISS the petition.

G.R. No. 116049 July 13, 1995

PEOPLE OF THE PHILIPPINES, petitioner,
vs.

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Page 201 of 204

HON. EUSTAQUIO Z. GACOTT, JR., Presiding Judge, RTC, Branch 47, Puerto Princesa City, ARNE STROM and GRACE
REYES, respondents.
REGALADO, J.:
Rebuffed by this Court through the annulment of his order dismissing Criminal Case No. 11529 of the court a quo, complemented with a
reprimand and a fine of P10,000.00 for gross ignorance of the law, respondent Judge Eustaquio Z. Gacott, Jr. has filed a motion for
reconsideration dated April 1, 1995, and a supplemental motion for reconsideration dated April 26, 1995.
For reasons of his own but the purposes of which can easily be deduced, separate copies of the basic motion were furnished the Chief
Justice, Judicial and Bar Council, Solicitor General, Bar Confidant, Integrated Bar of the Philippines, Court Administrator and his
deputies, Secretary of Justice, and Ombudsman. Copies of the supplemental motion were also furnished by him to the same officials or
entities and, additionally, to the individual members of this Court.
In the judgment now sought to be reconsidered, the Second Division of the Court, speaking through Mr. Justice Abdulwahid A. Bidin,
specified that the only issue to be resolved in this case was whether or not respondent judge gravely abused his discretion in granting
the motion to quash the aforementioned criminal case. We quote the pertinent portions of his ponencia not only for easy reference but
to serve as a basis for determining whether the sanctions imposed were commensurate to the administrative offense, to wit:
The error committed by respondent judge in dismissing the case is quite obvious in the light of P.D. No. 1, LOI No. 2
and P.D. No. 1275 aforementioned. The intent to abolish the Anti-Dummy Board could not have been expressed more
clearly than in the aforequoted LOI. Even assuming that the City Fiscal of Puerto Princesa failed to cite P.D. No. 1 in
his opposition to the Motion to Quash, a mere perusal of the text of LOI No. 2 would have immediately apprised the
respondent judge of the fact that LOI No. 2 was issued in implementation of P.D. No. 1. . . .
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Obviously, respondent judge did not even bother to read the text of the cited LOI; otherwise, he would have readily
acknowledged the validity of the argument advanced by the prosecution. As correctly observed by the Solicitor
General, Presidential Decrees, such as P.D. No. 1, issued by the former President Marcos under his martial law
powers have the same force and effect as the laws enacted by Congress. As held by the Supreme Court in the case
of Aquino vs. Comelec (62 SCRA 275 [1975]), all proclamations, orders, decrees, instructions and acts promulgated,
issued or done by the former President are part of the law of the land, and shall remain valid, legal, binding, and
effective, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions, or
other acts of the President. LOI No. 2 is one such legal order issued by former President Marcos in the exercise of his
martial law powers to implement P.D. No. 1. Inasmuch as neither P.D. No. 1 nor LOI No. 2 has been expressly or
impliedly revoked or repealed, both continue to have the force and effect of law (Rollo, pp. 7-8).
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But even more glaring than respondent judge's utter inexcusable neglect to check the citations of the prosecution is
the mistaken belief that the duty to inform the court on the applicable law to a particular case devolves solely upon
the prosecution or whoever may be the advocate before the court. Respondent judge should be reminded that courts
are duty bound to take judicial notice of all the laws of the land (Sec. 1, Rule 129, Rules of Court). Being the trier of
facts, judges are presumed to be well-informed of the existing laws, recent enactments and jurisprudence, in keeping
with their sworn duty as members of the bar (and bench) to keep abreast of legal developments. . . .
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The court is fully aware that not every error or mistake of a judge in the performance of his duties is subject to
censure. But where, as in the present case, the error could have been entirely avoided were it not for the public
respondent's irresponsibility in the performance of his duties, it is but proper that respondent judge be reprimanded
and his order of dismissal set aside for grave ignorance of the law. For, respondent judge's error is not a simple error
in judgment but one amounting to gross ignorance of the law which could easily undermine the public's perception of
the court's competence.
We could stop here, since the rehashed arguments raised by respondent judge in his aforesaid original and supplemental motions are
completely refuted by the foregoing discussion demonstrative not only of his adjudicatory error but also of judicial incompetence. In fact,
just to cite a few representative cases, it may be worthwhile for respondent judge to ponder upon the Court's observations
in Aducayan vs. Flores, etc., et al., 1Ajeno vs. Inserto, 2 Libarios vs. Dabalos, 3 and Estoya, et al. vs. Singson, etc., 4 which would put his
asseverations at rest.
Respondent judge, however, would want this Court to pass upon his other supplications, arguments, and even his insinuations for that
matter, which although born more of fecundity in formulation and less of bases in law, we have decided to anatomize even with some
expense of prolixity.
Respondent judge prefaces his remedial approach with the assurance that "(t)he only purpose of (h)is motion is to plead with bended
knees and with all humility for the kind reconsideration" of the decision in this case, specifically the findings that he is "grossly ignorant
of the law and as such, (he) was reprimanded and fined in the amount of P10,000.00; and that the aforesaid decision is to be spread on
(his) personal records." 5

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He adverts to his good conduct as a person and as a judge, reiterates that the error primarily stemmed from the shortcomings of the
public prosecutor and, on a personal note, he expresses this concern: ". . . I am again begging with humility that the spreading of the
aforesaid Decision on my personal records be reconsidered because doing so will foreclose any chance for me to aspire for promotion
in the judiciary in the future. This is very painful. I will agonize up to my last day and my last breath in life." 6
The Court assures respondent judge that it has taken all the aforesaid matters into consideration and is not insensitive thereto,
including his argumentum ad misericordiam. It feels, however, that there is more than ample substantiation for the findings of
the ponente in the main case, and compelling legal warrant for the administrative penalties imposed which are even milder than those
meted by it under similar and comparable situations.
The spreading of the decision on the personal record of a respondent is an official procedure and requirement which, incredibly,
respondent judge would want this very Court to violate and forego, in suppression of facts which must appear in official documents. His
further argument that
The spreading of such decision on my personal records will not only open criticisms on my private qualifications as a
minister in the temple of justice but will open more comments on my official acts, competence and credibility as a
judge that might undermine the people's faith in the judicial system in the Province of Palawan, in Puerto Princesa
City and in the entire country because it is always difficult to disassociate my private credential from that of my public
qualifications. 7
is, to put it mildly, a mite too exaggerated and a tad too melodramatic. The Court regrets that respondent judge appears unaware that
he is actually the recipient of uncommon sympathetic consideration in this case.
Administrative penalties do not play the final strains of the valkyrian chant to a public career, judicial or otherwise. It is for respondent
judge, by subsequently demonstrating his true worth through observance of judicial standards, to vindicate himself from a misjudgment
which is the heritage of the heedless and to rise to higher levels which is the destiny of the deserving. Besides, it is a curious fact that
assuming as valid his meticulosity on the confidential nature of disciplinary cases, he nevertheless sent copies of his motions to all the
persons enumerated at the start of this resolution. It is elementary that copies of such motions are merely filed with the court and
furnished only to the adverse party. Here, he wants us to keep sub rosa what he himself publicizes.
From his initial exhibition of humility and penitential pose, respondent judge then goes into a critical second gear by rhetorically
wondering aloud in this fashion:
On July 27, 1994, the Third Division of the Honorable Supreme Court required me to comment on the above-entitled
petition. On August 23, 1994 I filed my comment thereto and on October 24, 1994, in a Resolution the Third Division
of the Supreme Court resolved to note my Comment. When the Third Division of the Honorable Court required me to
comment in G.R. No. 116049, the supposition is that a valid raffle of said case to that Division had already been
made. That was my thinking and impression for, why would the case go to that Division except thru a valid raffle. I am
now in quandary, however, as to why all of a sudden, G.R. No. 116049 was transferred to the Second Division of the
Supreme Court without us or any party being informed by the Honorable Supreme Court about it. In our level at the
Regional Trial Court in Palawan, we observe the raffle of cases with solemnity and abide by the result of the raffle
faithfully. And the said Second Division meted me out excessive penalties when it was the Third Division that required
me to comment. Why did this happen? (Emphasis supplied.) 8
Since this was obviously spoken with the ascriptive courage of the uninformed, we assure His Honor that the Supreme Court also
conducts "a valid raffle," observes such raffle of its cases "with solemnity," and abides by the result thereof "faithfully." This case
was validly and solemnly raffled to Mr. Justice Bidin who was then with the Third Division of the Court. On January 23, 1995, he was
transferred to the Second Division where he served as working chairman until his retirement on April 7, 1995. In accordance with the
internal rules of the Court, this case remained with him as the original ponente and he accordingly penned the decision therein for and
as a member of the Second Division. There is no rule in the Court that the parties be informed that a case has been transferred to
another division, as respondent judge would want or expect. To do so would easily be revelatory of the identity of the ponente which is
precisely what some litigants used to, and still, watch for and speculate upon.
In anticipation of a similar insinuendo, respondent judge is further informed that because of the retirement of Mr. Justice Bidin and the
uncertainty of the date when his replacement could act upon his unfinished cases and the subsequent proceedings therein, after its
summer session and working recess the Court en banc, after due deliberation on respondent judge's successive motions, decided to
assign the preparation of this resolution to the present writer thereof, he having been and still is with the Second Division. Respondent
judge, with his claim of extensive magisterial experience, should have verified all the foregoing facts from the records of this Court,
instead of proceeding upon speculations.
Finally, shifting to what he obviously fancies to be high gear on a constitutional basis, respondent judge questions the competence of
the Second Division of this Court to administratively discipline him. Exordially, a mere allegatio nudus does not create a constitutional
issue as to require the referral of this case, or at least the disciplinary aspect thereof, to the Court en banc. The disposition of that
matter merely involves a clarification of the misconception of respondent judge thereon, presumably because of his unfamiliarity with
circulars adopted and followed by this Court, some of them being on internal procedure. Be that as it may, since all the members of this
Court are aware of the submissions of respondent judge on this point through the copies of the motions which he furnished them, and
he insistently harps on constitutional grounds therein, the Court en banc resolved to accept this aspect of the case from the Second
Division.

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His Honor relies on the second sentence of Section 11, Article VIII of the present Constitution which reads: "The Supreme Court en
banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon." This provision is an expansion of and was taken
from the second sentence of Section 7, Article X of the 1973 Constitution which provided: "The Supreme Court shall have the power to
discipline judges of inferior courts and, by a vote of at least eight Members, order their dismissal."
Stress is apparently laid by respondent judge on the inclusion of the adverbial phrase "en banc" in referring to this Court in the quoted
provision of the 1987 Constitution and, from this, he argues that it is only the full Court, not a division thereof, that can administratively
punish him.
Fortuitously, the writer of this resolution, as a member of the Committee on the Judiciary of the 1986 Constitutional Commission, had
the opportunity to take up that precise matter with the committee chairman, retired Chief Justice Roberto Concepcion, by pointing out
the equivalent provision in the 1973 Constitution, hereinbefore quoted, which merely referred to the "Court," without qualification. It was
accordingly explained and agreed that insofar as the power to discipline is concerned, the qualification was not intended to make a
difference, as a reference to the Court by itself necessarily means the Court en banc. It was only decided to state "en banc" there
because all internal procedural and administrative matters, as well as ceremonial functions, are always decided by or conducted in the
Court en banc. On the other hand, where the reference is to the Court acting through its divisions, it would necessarily be so specified.
For lack of transcription of the proceedings of the committees of said Commission, the writer has perforce to rely on his recollection and
notes, but he assures this Court of the foregoing facts as they transpired.
At any rate, the very text of the present Section 11 of Article VIII clearly shows that there are actually two situations envisaged therein.
The first clause which states that "the Supreme Court en banc shall have the power to discipline judges of lower courts," is a
declaration of the grant of that disciplinary power to, and the determination of the procedure in the exercise thereof by, the Court en
banc. It was not therein intended that all administrative disciplinary cases should be heard and decided by the whole Court since it
would result in an absurdity, as will hereafter be explained.
The second clause, which refers to the second situation contemplated therein and is intentionally separated from the first by a comma,
declares on the other hand that the Court en banc can "order their dismissal by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted therein." Evidently, in this instance, the administrative case must be
deliberated upon and decided by the full Court itself.
Pursuant to the first clause which confers administrative disciplinary power to the Court en banc, on February 9, 1993 a Court En
Banc resolution was adopted, entitled "Bar Matter No. 209. In the Matter of the Amendment and/or Clarification of Various Supreme
Court Rules and Resolutions," and providing inter alia:
For said purpose, the following are considered en banc cases:
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6. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the Judiciary, disbarment
of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding
P10,000.00, or both.
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This resolution was amended on March 16, 1993 and November 23, 1993, but the aforequoted provision was maintained.
Indeed, to require the entire Court to deliberate upon and participate in all administrative matters or cases regardless of the sanctions,
imposable or imposed, would result in a congested docket and undue delay in the adjudication of cases in the Court, especially in
administrative matters, since even cases involving the penalty of reprimand would require action by the Court en banc. This would
subvert the constitutional injunction for the Court to adopt a systematic plan to expedite the decision or resolution of cases or matters
pending in the Supreme Court or the lower courts, 9 and the very purpose of authorizing the Court to sit en banc or in divisions of three,
five, or seven members. 10
Yet, although as thus demonstrated, only cases involving dismissal of judges of lower courts are specifically required to be decided by
the Court en banc, in cognizance of the need for a thorough and judicious evaluation of serious charges against members of the
judiciary, it is only when the penalty imposed does not exceed suspension of more than one year or a fine of P10,000.00, or both, that
the administrative matter may be decidedin division.
It must not also be overlooked that as early as February 7, 1989, the Court promulgated Circular No. 2-89 which clarifies that:
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2. A decision or resolution of a Division of the Court, when concurred in by a majority of its members who actually
took part in the deliberations on the issues in a case and voted thereon, and in no case without the concurrence of at
least three of such Members, is a decision or resolution of the Supreme Court (Section 4[3], Article VIII, 1987
Constitution).

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That guideline or rule in the referral to the Court en banc of cases assigned to a division thereof rests on the same rationale and applies
with equal force to confute the antithetical theory of respondent Judge Eustaquio Z. Gacott, Jr. Apropos thereto, it would indeed be
desirable for said respondent to hereafter deal with situations like the one subject of this resolution with more perspicacity and
circumspection.
WHEREFORE, the basic and supplemental motions for reconsideration of the judgment in the case at bar are hereby DENIED. This
resolution is immediately final and executory.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ.,
concur.

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