Republic of the Philippines

SUPREME COURT
Manila

EN BANC

November 29, 1920

In re Application of MAX SHOOP for admission to practice law

MALCOLM, J.:

Application has been made to this court by Max Shoop for admission to practice law in the Philippines Islands under
paragraph four of the Rules for the Examination of Candidates for Admission to the Practice of Law, effective July 1, 1920.
The supporting papers show that the applicant has been admitted to practice, and has practiced for more than five years in
the highest court of the State of New York.

THE RULES

That portion of the rules of this court, in point, is as follows:

Applicants for admission who have been admitted to practice in the Supreme Court of the United States or in any circuit
court of appeal or district court, therein, or in the highest court of any State or territory of the United States, which State or
territory by comity confers the same privilege on attorneys admitted to practice in the Philippine Islands, and who can show
by satisfactory affidavits that they have practiced at least five years in any of said courts, may, in the discretion of the court,
be admitted without examination.

The above rule requires that New York State by comity confer the privilege of admission without examination under similar
circumstances to attorneys admitted to practice in the Philippine Islands. The rule of the New York court permits admission
without examination, in the discretion of the Appellate Division in several cases, among which are the following:

1. Any person admitted to practice and who has practiced five years as a member of the bar in the highest law court in any
other state or territory of the American Union or in the District of Columbia.

2. Any person admitted to practice and who has practiced five years in another country whose jurisprudence is based on
the principles of the English Common Law.

This court is advised informally that under this rule one member of the bar of the Philippine Islands has been admitted to
practice, without examination, in the State of New York, and one member of the same bar has been refused such
admission, the latter being the more recent case. The rulings of the New York court have not been bought to the attention
of this court authoritatively, but assuming that reports of such rulings by the New York court are true, in view of the
apparent conflict, it seems proper to enter upon the consideration of whether or not under the New York rule as it exits the
principle of comity is established. It must be observed that under the rules of both jurisdictions, admission in any particular
case is in the discretion of the court. Refusal to admit in any particular case is not necessarily conclusive as to the general
principles established by the rules.

THE PHILIPPINE ISLANDS — A TERRITORY.

Under paragraph 1 of the New York rule, practice for five years in the highest court in any "State or territory of the
American Union" is the basic qualification. If the Philippine Islands is a territory of the United States within the meaning of
the word as used in that rule, comity would seem to exist.

The word "territory" has a general and a technical meaning. It is clear that the Philippine Islands is not an "organized
territory" incorporated into the United States under the constitution. (Dorr vs. U.S., 195 U.S., 138.) It is likewise clear that
the Philippine Islands is not a "foreign country." (The Diamond Rings, 183 U.S., 176.) In the language of that case it is a
"territory of the United States over which civil government could be established." So also is Porto Rico (De
Lima vs. Bidwell, 182 U.S., 1.) It has been held that Porto Rico is not a foreign territory and that the United States laws

1
covering "territories." such as the Federal Employer's Liability Act, includes Porto Rico. (American Railroad Co. of Porto
Rico vs. Didricksen, 227 U.S., 145.) Porto Rico, Hawaii, and Alaska are now incorporated, organized territories of the
United States. (Muratti vs. Foote, 25 Porto Rico, 527; Hawaii vs. Mankichi, 190 U.S., 197; Rasmussen vs. U.S., 197 U.S.,
516.)

An opinion of the Attorney-General of the United States holds that —

While, like Porto Rico, the Philippine Islands are not incorporated in the United States, they clearly are territory of the
United States and to the extent that Congress has assumed to legislate for them, they have been granted a form of
territorial government, and to this extent are a territory. (30 Op. Atty.-Gen., U.S., 462, reversing 24 Op. Atty.-Gen. U.S.,
549.)

Further, the Philippine Islands have been held not to be "another country" within the meaning of the Cuban Commercial
Treaty. (Faber vs. U.S., 221 U.S., 649.) Chief Justice Marshall, in construing the phrase "United States" once observed:

Does this term designate the whole or any particular portion of the American Empire? Certainly this question can admit of
but one answer. It is the name given to our great Republic, which is composed of states and territories. The District of
Columbia or the territory west of Missouri is not less within the United States than Maryland or Pennsylvania.
(Loughborough vs. Blake, 5 Wheat [U.S.], 317, at p. 319.)

This is the broad general view which would seem to have been the point of view of the New York courts in using the phrase
"Any state or territory of the American Union." The New York rule contemplates "state," "territory," and "another country." It
seems clear that the Philippine Islands is not "another country." It is not believed that the New York court intended the word
territory to be limited to the technical meaning of organized territory, or it would have used the more accurate expression.
the full phraseology, "any state or territory of the American Union," indicates a sweeping intention to include all of the
territory of the United States, whatever the political subdivision might be, as distinguished from foreign country. Otherwise,
the Philippine Islands would be in an anomalous position like unto Edward Everett Hale's "A Man Without a Country" — a
land neither "another country," nor a "state," nor a "territory" — a land without status.

Of course the construction of what is intended by the use of that phrase is for the New York courts finally to determine, but
in the absence of any authoritative decision from the New York courts on the point, we feel justified in concluding that
under paragraph 1 of the New York rule there exists between that jurisdiction and this, with reference to admission of
attorneys without examination, a basis of comity sufficient to satisfy the requirement in the rule of this court in that regard.

A COMMON LAW JURISDICTION.

But assuming that comity is not permitted under paragraph 1 of the New York rule, we turn to a consideration of whether or
not it exits by virtue of paragraph 2. This rule applies to "another country whose jurisprudence is based on the principles of
the English Common Law." We have then further to assume that if the Philippine Islands is not a "state or territory," that it
must be "another country." The question then presented is upon what principles is the present jurisprudence of these
Islands based? this is a question which can property be answered by this court. It is a problem, however, upon which
books could be and have been written. We will endeavor to make a brief analysis of the situation.

What is "jurisprudence based on the principles of the English Common Law?" Jurisprudence is the groundwork of the
written law, or, as Bouvier defines it, "The science of law. The particular science of giving a wise interpretation to the laws
and making a just application of them to call cases as they arise." In an untechnical sense, it sometimes means Case Law.

COMMON LAW IN THE UNITED STATES.

We must assume that the New York court, in using this phrase, considered that the jurisprudence of New York State was
based upon the principles of the English common Law. We should, therefore, consider to what extent the English Common
Law principles apply to New York. In a case in 1881 we find the following:

And the Common Law of England was the law of the colony at that date (April 19, 1775), so far as it was applicable to the
circumstances of the Colonists. And it has since continued so to be, when conformable to our institutions, unless it was

2
established by an English statute which has since been abrogated or was rejected in colonial jurisprudence, or has been
abolished by our legislation. (cutting vs. Cutting, 86 N.Y., 522, p. 529.)

And again:

This court has interpreted this provision of the constitution to man not that all of the Common Law of England was the law
of the Colonists at the time of the making of the Constitution, but only so much of it as was applicable to the circumstances
of the Colonists and conformable to our institutions. Cutting vs. Cutting, 86 N.Y., 522, p. 529; Williams vs. Williams, 8 N.Y.,
525, p. 541. (Shayne vs. Evening Post Publishing Co., 168 N.Y., 70, at p. 76.)

In Morgan vs. King (30 Barber [N.Y.], 9), the New York court said that in adopting the English Common Law, New York
adopted:

The written law of England as a constantly improving science rather than as an art; as a system of legal logic, rather than
as a code of rules, — that is, that the fundamental principles and modes of reasoning and the substance of the rules of the
Common Law are adopted as illustrated by the reasons on which they are based, rather than the mere words in which they
are expressed.

Once more, in 1903, the New York court said in connection with a question of the right of the public to use the
foreshore:lawph!l.net

In adopting the Common Law of the Mother country we did not incorporate into our system of jurisprudence any principles
which are essentially inconsonant with our circumstances or repugnant to the spirit of our institutions. (Barnes vs. Midland
Railroad Terminal Co., 193 N.Y., 378, at p. 384.)

The above statements of the New York court clearly indicate the scope of the English Common Law in that state. In most
of the States, including New York, codification and statute law have come to be a very large proportion of the law of the
jurisdiction, the remaining proportion being a system of case law which has its roots, to a large but not an exclusive degree,
in the old English cases. In fact, present day commentators refer to American jurisprudence or Anglo-American
jurisprudence as distinguished from the English Common Law.

Accordingly, in speaking of a jurisprudence which is "based on the English Common Law," for present purpose at least, it
would seem property to say that the jurisprudence of a particular jurisdiction is based upon the principles of that Common
Law, if, as a matter of fact, its statute law and its case law to a very large extent includes the science and application of law
as laid Down by the old English cases, as perpetuated and modified by the American cases.

COMMON LAW ADOPTED BY DECISION.

The concept of a common law is the concept of a growing and ever-changing system of legal principles and theories. and it
must be recognized that due to the modern tendency toward codification (which was the principle of the Roman and Civil
Law), there are no jurisdictions to-day with a pure English Common Law, with the exception of England itself. In the United
States the English Common Law is blended with American codification and remnants of the Spanish and French Civil
Codes. There a legal metamorphosis has occurred similar to that which is transpiring in this jurisdiction to-day. Some of the
western states, which were carved out of the original Louisiana territory, have adopted the Common Law by decision.
(State vs. Twogood, 7 Iowa, 252; Barlow vs. Lambert, 28 Alabama, 704; Parsons vs. Lindsay, 41 Kansas, 336;
McKennen vs. Winn, 1 Okla., 327.)

Louisiana has long been recognized as the one State of the Union which retained a portion of the Civil Law. In a case in
1842 in Louisiana, the court considered the question of whether a protest on a promissory note had been made within the
required time. The court rejected the straight Civil code rule, and adopted the custom of New Orleans, which was the law of
the sister States, saying:

The superior court of the late territory of Orleans very early held that although the laws of Spain were not abrogated by the
taking possession of the country by the United States, yet from that event the commercial law of the Union became the
commercial law of New Orleans; and this court has frequently recognized the correctness of these early decisions,
principally in bills of exchange, promissory notes and insurance. (Wagner vs. Kenner, 2 Rob. [La.], 120.)

3
In Xiques vs. Bujac (7 La. Ann., 498, p. 504), the court after deciding a question involving the dedication of real property
according to the Civil code rules, said:

I must add that the general doctrine laid down in Common Law courts has been admitted by our courts with some
modification resulting from our different systems of law.lawph!l.net

Louisiana, by statute, adopted certain common law rules, and with reference to these the court said, in State vs.McCoy (8
Rob. [La.], 545):

We concur with the counsel in believing that the legislature in adopting the Common Law rules of proceeding, method of
trial, etc., adopted the system as it existed in 1805, modified, explained and perfected by statutory enactment, so far as
those enactments are not found to be inconsistent with the peculiar character and genius of our government and institution.

From this brief survey of the extent of the English Common Law basis in the States, we may conclude — (1) that the New
York court in referring to a jurisdiction whose jurisprudence is based on the English Common Law, uses the phrase in a
general sense; and (2) that such Common Law may become the basis of the jurisprudence by decision of the courts where
practical considerations and the effect of sovereignty gives ground for such a decision. If, in the Philippines Islands, a
comparatively young jurisdiction, English Common Law principles as embodied in Anglo-American Jurisprudence are used
and applied by the courts to the extent that such Common Law principles are not in conflict with the local written laws,
customs, and institutions as modified by the change of sovereignty and subsequent legislation, and there is no other
foreign case law system used to any substantial extent, then it is proper to say in the sense of the New York rule that the
"jurisprudence" of the Philippine Islands is based on the English Common Law.

IN THE PHILIPPINE ISLANDS.

The extent of the English or the Anglo-American Common Law here has not been definitely decided by this court. But
when the subject has been referred to by this court there has been a striking similarity to the quotations from the American
decisions above cited with reference to the English Common Law.

In Alzua and Arnalot vs. Johnson (21 Phil., 308), this court, in passing upon an objection of counsel, that while a certain
rule was universally recognized and applied in the courts of England and the United States, it was not the law in the
Philippine Islands, said:

To this we answer that while it is true that the body of the Common Law as known to Anglo-American jurisprudence is not
in force in these Islands, "nor are the doctrines derived therefrom binding upon our courts, save only in so far as they are
founded on sound principles applicable to local conditions, and are not in conflict with existing law" (U.S. vs. Cuna, 12 Phil.,
241); nevertheless many of the rules, principles, and doctrines of the Common Law have, to all intents and purposes, been
imported into this jurisdiction, as a result of the enactment of new laws and the organization and establishment of new
institutions by the Congress of the United States or under its authority; for it will be found that many of these laws can only
be construed and applied with the aid of the Common Law from which they are derived, and that to breathe the breath of
life into many of the institutions introduced in these Islands under American sovereignty recourse must be had to the rules,
principles, and doctrines of the Common Law under whose protecting aegis and prototypes of these institutions had their
birth.

xxx xxx xxx

And it is safe to say that in every volume of the Philippine Reports numbers of cases might be cited wherein recourse has
been had to the rules, principles and doctrines of the Common Law in ascertaining the true meaning and scope of the
legislation enacted in and for the Philippine Islands since they passed under American sovereignty. (Pp. 331, 333.)

And later in speaking of the judicial system of the Philippines Islands (page 333):

The spirit with which it is informed, and indeed its very language and terminology would be unintelligible without some
knowledge of the judicial system of England and the United States. Its manifest purpose and object was to replace the old
judicial system, with its incidents and traditions drawn from Spanish sources, with a new system modelled in all its
essential characteristics upon the judicial system of the United States. It cannot be doubted, therefore, that any incident of

4
the former system which conflicts with the essential principles and settled doctrines on which the new system rests must be
held to be abrogated by the law organizing the new system.

In U.S. vs. De Guzman (30 Phil., 416), the court spoke as follows:

We have frequently held that, for the proper construction and application of the terms and provisions of legislative
enactments which have been borrowed from or modelled upon Anglo-American precedents, it is proper and of times
essential to review the legislative history of such enactments and to find an authoritative guide for their interpretation and
application in the decisions of American and English courts of last resort construing and applying similar legislation in those
countries. (Kepner vs. U.S., 195 U.S., 100; 11 Phil., 669; Serra vs. Mortiga, 204 U.S., 470; 11 Phil., 762; Alzua and
Arnalot vs. Johnson, 21 Phil., 308.) Indeed it is a general rule of statutory construction that courts may take judicial notice
of the origin and history of the statutes which they are called upon to construe and administer, and of the facts which affect
their derivation, validity and operation. (2 Lewis' Sutherland on Statutory Construction, sec. 309.)

In U.S. vs. Abiog and Abiog (37 Phil., 137), this court made this further statement on the subjects:

To elucidate — the principles of the Anglo-American Common Law are for the Philippines, just as they were for the State of
Louisiana and just as the English Common Law was for the United States, of far-reaching influence. The Common Law is
entitled to our deepest respect and reverence. The courts are constantly guided by its doctrines. Yet it is true as heretofore
expressly decided by this Court that — "neither English nor American Common Law is in force in these Islands, nor are the
doctrines derived therefrom binding upon our courts, save only in so far as they are founded on sound principles applicable
to local conditions, and are not in conflict with existing law." (U.S. vs. Cuna [1908], 12 Phil., 241.)

What we really have, if we were not too modes to claim it, is a Philippine Common Law influenced by the English and
American Common Law, the derecho comun of Spain, and the customary law of the Islands and builded on a case law of
precedents. Into this Philippine Common Law, we can properly refuse to take a rule which would estop other courses of
reasoning and which, because of a lack of legal ingenuity would permit men guilty of homicide to escape on a technicality.

At this juncture, three years after the last quoted comment, the influence of English and American jurisprudence can be
emphasized even more strongly. A survey of recent cases in the Philippine Reports, and particularly those of the last few
years, shows an increasing reliance upon English and American authorities in the formation of what may be termed a
Philippine Common Law, as supplemental to the statute law of this jurisdiction. An analysis will show that a great
preponderance of the jurisprudence of this jurisdiction is based upon Anglo-American case law precedents, — exclusively
in applying those statutory laws which have been enacted since the change of sovereignty and which conform more or less
to American statutes, and — to a large extent in applying and expanding the remnants of the Spanish codes and written
laws.

PHILIPPINE STATUTE LAW.

Introductory to analyzing what Spanish written laws remain in force to-day, we will consider in a general way those Spanish
laws which were in force at the time of the change of severeignty.

Spanish law became highly codified during the nineteenth century. All of the laws of Spain were, however, not made
applicable to the Philippine Islands; only those were effective here which were extended by royal decree. The chief codes
of Spain made effective in the Philippine were as follows:

Penal Code 1887

Code of Commerce 1888

Ley Provisional, Code of Criminal Procedure, and Code of Civil Procedure 1888

Civil Code 1889

5
 (Except portion relating to marriage, thus reviving a portion of Marriage Law of 1870.)
1870
Marriage Law

Mortgage Law 1889

1875 and
Railway Laws
1877

Law of Waters 1866

In addition to these there were certain special laws having limited application: Las Siete Partidas; Las Leyes de Toro;
Leyes de las Indias; La Novisima Recopilacion; Mining Law; Notarial Law; Spanish Military Code, and the Corpyright Law.

The foregoing were written laws which, by change of sovereignty, acquired the force of statute law in the Philippine Islands.
There was no properly called Common Law or Case Law of Spain to accompany and amplify these statues, although there
were, of course, the customs of the people of the Islands, which continued, in a sense, unwritten law. Spanish
jurisprudence does not recognize the principle of stare decisis; consequently, there could be no Common Law in any sense
analogous to the English or American Common Law. Article 6 of the Civil Code provides:

When there is no law exactly applicable to the point in controversy, the customs of the place shall be observed and in the
absence thereof, the general principles of law.

In order to determined the general principles of law "judicial decision cannot be resorted to" . . . . (2 Derecho Civil of
Sanchez roman, pp. 79-81; 1 Manresa, p. 80.) A lower court of Spain is at liberty to disregard the decisions of a higher
court. This is the general continental rule. (Holland's Jurisprudence, 11th Ed., pp. 68-70.) "The Partidas is still the basis of
Spanish Common Law, for the more recent compilations are chiefly founded on it and cases which cannot be decided
either by these compilations or by the local fueros must be decided by the provisions of the Partidas." (IV Dunham, History
of Spain, p. 109.)

The Partidas is a code law and cannot in any proper sense be considered as Common Law. It specifically provided,
however, for recourse to customs when the written law was silent. The customs to which resort is to be had are the
customs of the particular place where the case arise; the customs of one locality in Spain having no effect on the
application of law in another place. (1 Manresa, pp. 77-79; Civil Code, art. 6; Code of Commerce, art. 2.) Accordingly, the
Spanish customary law could not have any force here. The law or custom cannot be migratory. Manresa does not defined
what is meant by "general principles of law." but from his discussion under article 6 of the Civil Code it appears how far
from a case law system is Spanish jurisprudence. He formulates the rule that courts are governed: first, by written law;
second, by the customs of the place; third, by judicial decision; and fourth, by general principles of law. In fact, un urging
that resort to judicial decisions should come before resort to general principles of law, Manresa rather implies that the
practice of the courts is the contrary.

English Common Law is quite a different conception. While it grew out of the early Anglo-Saxon customs, it came in time to
be a case law of binding force which controlled custom. In fact, it became so binding that it was found necessary, in order
to effect justice in particular cases, to establish the Court of Chancery, which became the court of equity. The English
Common Law recognizes custom only in so far as it does not conflict with the well settled principles of that law. Under the
Spanish system, on the other hand, when the written law is silent, before considering precedents in the cases the court is
governed by the customs of the locality at the time.

Consequently, by the change of sovereignty there was no body of case law or common law of Spain which could be
considered as existing in connection with the written law retained in force in these Islands. The only amplification of that
written law was the local customs of the people of the Islands. This is particularly true of Spanish decision rendered since
the change of sovereignty, which do not preclude the local courts from exercising an independent judgment.
(Cordova vs. Rijos, 227 U.S., 375.)

6
SPANISH STATUTE LAW.

The Spanish statute law, as amplified by Spanish commentaries but without a background of Spanish precedent or case
law, was by the change of sovereignty, severed from Spanish jurisprudence and made effective in this jurisdiction to the
same extent as if Congress had enacted new laws for the Philippines modelled upon those same Spanish statutes. This
retention of the local private law was merely in accordance with the principles of International Law in that regard. However,
by the mere fact of the change of sovereignty, all portions of that statute law which might be termed political law were
abrogated immediately by the change of sovereignty. Also, all Spanish laws, customs, and rights of property inconsistent
with the Constitution and American principles and institutions were thereupon superseded. (Sanchez vs. U.S., 216 U.S.,
167.)

We will give a brief analysis of the further extent to which the Spanish statute law has been repealed and cut down since
the change of sovereignty. The table is the note 1 below illustrates the situation in a general way.

Even the Spanish Civil Code has been largely modified as will appear from the table in the note 2 below.

CASES UNDER AMERICAN DERIVED STATUTES.

It thus appears that the bulk of present day Statute Law is derivative from Anglo-American sources; derivative within the
sense of having been copied, and in the sense of having been enacted by Congress or by virtue of its authority. This court
has repeatedly held that in dealing with the cases which arise under such statute law the court will be governed by the
Anglo-American cases in construction and application. (U.S. vs. De Guzman, 30 Phil., 416, at p. 419; U.S. vs. Cuna, 12
Phil., 241; Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil., 245, 428, 429.)

To illustrate more clearly the scope of the use of Anglo-American cases in this connection, a bried analysis of some of the
more recent decisions of this court is advisable. For convenience the cases will be taken up in the note 3 by subjects. In all
of them, Anglo-American decisions and authorities are used and relied upon to a greater or less degree. Although in many
cases the use is by way of dictum, nevertheless, the net result is the building up of a very substantial elaboration of Anglo-
American case law.

From the foregoing selection of the more recent and typical cases, it appears how broad is the scope of the use of Anglo-
American authorities and precedents in the field of law subjects affected by American derived legislation. In the application
of those statutes in the many cases which come before the court, there is bound to be developed a substantial common
law. There is no question that this exists. We are merely concerned with its extent and source.

CASES UNDER SPANISH STATUTES.

In addition to the subjects covered above, there is a wide field of use of Anglo-American cases in the interpretation and
application of the remnants of the Spanish statutes. Such is of even greater importance in showing the real permanency of
the hold which Anglo-American Common Law has fastened upon the jurisprudence of this jurisdiction. An analysis of the
cases, particularly those of the later years, justifies completely the well-expressed opinion of former Attorney-General
Araneta quoted below:

We cannot say with certainty that the courts of the Philippine Islands will, in the absence of a statute, be guided by the
common law. It has been said that the common law is expanded slowly and carefully by judicial decisions based on a
standard of justice derived from the habits, customs, and thoughts of a people, and by this standard doubtful cases are
determined; that the office of the judge is not to make the common law but to find it, and when it is found to affix to it his
official mark by which it becomes more certainly known and authenticated. The announcement of the law comes from the
courts after they have had the benefit of the learning of counsel, which to be comprehensive and useful must embrace a
knowledge of the people and their customs, as well as a knowledge of the principles established by prior decisions. It is,
therefore, reasonable to assume that the courts of the Philippine Islands in cases not controlled by statute will lay down
principles in keeping with the common law, unless the habits, customs, and thoughts of the people of these Islands are
deemed to be so different from the habits, customs, and thoughts of the people of England and the United States that said
principles may not be applied here. (4 Op. Atty.-Gen. P.I., 510, 511.)

7
To illustrate the scope of the use of Anglo-American cases in connection with the remaining Spanish statutes, a brief
analysis 4 of the more recent cases under a few of the principal subjects, will be appropriate. Frequently in these cases
reference to Anglo-American precedents is for the purpose of showing that Spanish law and the Anglo-American law s the
same, and frequently it is for the purpose of amplifying or extending the Spanish statutes. In most cases it is for the
purpose of applying those statutes to the particular case before the court; but whatever the use, the fact remains that
through the influence of these cases a broad exposition of American case law is made.

The last group of recent cases, which are but typical of many others in the Reports, illustrates clearly the fact that Anglo-
American case law plays a very great part in amplifying and applying the law on those subjects which are still governed by
the remaining portions of the Spanish statutes.

The foregoing two groups of cases in combination, those under the subjects covered by Spanish statutes and those under
the subjects covered by American-Philippine legislation and effected by the change of sovereignty, show conclusively that
Anglo-American case law has entered practically every one of the leading subjects in the field of law, and in the large
majority of such subjects has formed the sole basis for the guidance of this court in developing the local jurisprudence. The
practical result is that the part twenty, years have developed a Philippine Common Law or case law based almost
exclusively, except where conflicting with local customs and institutions, upon Anglo-American Common Law. The
Philippine Common Law supplements and amplifies our statute law.

COLLATERAL INFLUENCES.

This conclusion is further justified by the practical situation which has surrounded the Bench and Bar of the Philippine
Islands for many years and which there is very reason to believe will continue unabated in the future.

This court his, in any increasing degree during the past twenty years, cited and quoted from Anglo-American cases and
authorities in its decisions. The following analysis of the citations of the last twenty volumes of the Philippine Reports show
this graphically.

Cases cited.

Volume. U.S. Philippines Spain England

20
207 63 21 1
........................................

21
217 127 10 3
........................................

22
273 73 21 5
........................................

23
211 181 18 4
........................................

24
194 108 19 1
........................................

25
143 98 24 2
........................................

26 257 104 23

8
 ........................................

27
145 132 25 1
........................................

28
145 130 24 3
........................................

29
152 136 9 1
........................................

30
98 85 11
........................................

31
159 103 8 1
........................................

32
103 8 1
........................................

33
121 137 6 5
........................................

34
214 163 34
........................................

35
109 159 17 4
........................................

36
125 217 21 2
........................................

37
340 242 23 5
........................................

38
161 175 19 8
........................................

39
228 143 13 6
........................................

3,810 2,752 361 52

The American citations are over ten times as numerous as the Spanish citations. (In Vol. 1 there were 63 Spanish to 53
United States.) Add to this the cumulative effect of perpetuating this ratio through the citations of Philippine cases in which
American cases have been cited, and it is obvious that Spanish decisions have had comparatively slight effect in the
development of our case law.
9
It is a fact of considerable practical importance that there are no digests of Spanish decisions to aid the study of Bench and
Bar. On the other hand, the local libraries contain both digests and reports of the Federal Courts and Supreme Court of the
United States, and of most of the State courts, and also many reports of the English courts. Added to his is a liberal supply
of English and American text books. The foregoing not only has a natural influence on the results of the work of the Bench,
but it has a very decided influence on the development of the present Bar of the Philippine Islands; each year adds to the
preponderance of lawyers trained chiefly from a study of Anglo-American case law.

The fact that prolific use of Anglo-American authorities is made in the decisions of this court, combined with the fact that
the available sources for study and reference on legal theories are mostly Anglo-American, present a practical situation at
this moment from which this court can draw but one conclusion, namely, that there has been developed, and will continue,
a common law in the jurisprudence of this jurisdiction (which for purposes of distinction may properly be termed a
Philippine Common Law), based upon the English Common Law in its present day form of an Anglo-American Common
Law, which common law is effective in all of the subjects of law in this jurisdiction in so far as it does not conflict with the
express language of the written law or with the local customs and institutions.

CONCLUSIONS.

We may summarize our conclusions as follows:

(1) The Philippine Islands is an unorganized territory of the United States, under a civil government established by the
Congress.

(2) In interpreting and applying the bulk of the written laws of this jurisdiction, and in rendering its decision in cases not
covered by the letter of the written law, this court relies upon the theories and precedents of Anglo- American cases,
subject to the limited exception of those instances where the remnants of the Spanish written law present well-defined civil
law theories and of the few cases where such precedents are inconsistent with local customs and institutions.

(3) The jurisprudence of this jurisdiction is based upon the English Common Law in its present day form of Anglo-American
Common Law to an almost exclusive extent.

(4) By virtue of the foregoing, the New York rule, given a reasonable interpretation, permits conferring privileges on
attorneys admitted to practice in the Philippine Islands similar to those privileges accorded by the rule of this court.

Accordingly, the supporting papers filed by the applicant in this case showing to the satisfaction of the court his
qualifications as an attorney-at-law, his petition is hereby granted and he is admitted to the practice of law in the Philippine
Islands. Our decision is based upon our interpretation of the New York rule, and it does not establish a precedent which
may be controlling on this court with respect to future applications if our interpretation is not borned out by the future
enforcement of that rule by the New York court. So ordered.

Mapa, C.J., Johnson, Araullo, Streets, Avanceña and Villamor, JJ., concur

_________________________________________________________________________________________________

THIRD DIVISION
[G.R. No. 156067. August 11, 2004]
MADRIGAL TRANSPORT, INC., petitioner, vs. LAPANDAY HOLDINGS CORPORATION; MACONDRAY AND
COMPANY, INC.; and LUIS P. LORENZO JR.,respondents.

DECISION
PANGANIBAN, J.:

The special civil action for certiorari and appeal are two different remedies that are mutually exclusive; they are not
alternative or successive. Where appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse
of discretion. Basic is the rule that certiorari is not a substitute for the lapsed remedy of appeal.
The Case
10
 Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the February 28, 2002
Decision[2] and the November 5, 2002 Resolution[3] of the Court of Appeals (CA) in CA-GR SP No. 54861. The challenged
Decision disposed as follows:

WHEREFORE, in consideration of the foregoing premises, private respondents Lapanday and Lorenzo, Jr.s Motion for
Reconsideration dated 10 February 2000 is GRANTED. Accordingly, the Resolution dated 10 January 2000 is
RECONSIDERED and SET ASIDE, thereby dismissing the Petition for Certiorari dated 10 September 1999.[4]

The assailed Resolution denied reconsideration.

The Facts
The pertinent facts are undisputed. On February 9, 1998, Petitioner Madrigal Transport, Inc. (Madrigal) filed a Petition
for Voluntary Insolvency before the Regional Trial Court (RTC) of Manila, Branch 49. [5] Subsequently, on February 21,
1998, petitioner filed a Complaint for damages against Respondents Lapanday Holdings Corporation (Lapanday),
Macondray and Company, Inc. (Macondray), and Luis P. Lorenzo Jr. before the RTC of Manila, Branch 36. [6]
In the latter action, Madrigal alleged (1) that it had entered into a joint venture agreement with Lapanday for the
primary purpose of operating vessels to service the shipping requirements of Del Monte Philippines, Inc.; [7] (2) that it had
done so on the strength of the representations of Lorenzo, in his capacity either as chairman of the board or as president of
Del Monte, Lapanday and Macondray; (3) that Macondray had thereafter been appointed -- allegedly upon the insistence
of Lapanday -- as broker, for the purpose of securing charter hire contracts from Del Monte; (4) that pursuant to the joint
venture agreement, Madrigal had purchased a vessel by obtaining a P10,000,000 bank loan; and (5) that contrary to their
representations and guarantees and despite demands, Lapanday and Lorenzo had allegedly been unable to deliver those
Del Monte charter hire contracts.[8]
On February 23, 1998, the insolvency court (RTC Branch 49) declared petitioner insolvent. [9] On March 30, 1998 and
April 6, 1998, Respondents Lapanday, Lorenzo and Macondray filed their respective Motions to Dismiss the case pending
before the RTC Branch 36.[10]
On December 16, 1998, Branch 36 granted the Motion, for failure of the Complaint to state a cause of action. Applying
Sections 32 and 33 of the Insolvency Law,[11] the trial court opined that upon the filing by Madrigal of a Petition for
Voluntary Insolvency, the latter lost the right to institute the Complaint for Damages. The RTC ruled that the exclusive right
to prosecute the actions belonged to the court-appointed assignee.[12]
On January 26, 1999, petitioner filed a Motion for Reconsideration, [13] which was later denied on July 26,
1999.[14] Subsequently, petitioner filed a Petition for Certiorari with the Court of Appeals, seeking to set aside the December
16, 1998 and the July 26, 1999 Orders of the trial court.[15] On September 29, 1999, the CA issued a Resolution requiring
petitioner to explain why its Petition should not be dismissed outright, on the ground that the questioned Orders should
have been elevated by ordinary appeal.[16]
On January 10, 2000, the appellate court ruled that since the main issue in the instant case was purely legal, the
Petition could be treated as one for review as an exception to the general rule that certiorari was not proper when appeal
was available.[17] Respondents Lapanday and Lorenzo challenged this ruling through a Motion for Reconsideration dated
February 10, 2000.[18] The CA heard the Motion for Reconsideration in oral arguments on April 7, 2000. [19]

Ruling of the Court of Appeals

On February 28, 2002, the appellate court issued the assailed Decision granting Respondents Lapanday and
Lorenzos Motion for Reconsideration and dismissing Madrigals Petition for Certiorari. The CA opined that an order granting
a motion to dismiss was final and thus the proper subject of an appeal, not certiorari.[20]
Furthermore, even if the Petition could be treated as an appeal, it would still have to be dismissed for lack of
jurisdiction, according to the CA.[21] The appellate court held that the issues raised by petitioner involved pure questions of
law that should be brought to the Supreme Court, pursuant to Section 2 of Rule 50 and Section 2(c) of Rule 41 of the Rules
of Court.[22]
Hence, this Petition.[23]
The Issues
In its Statement of Issues, petitioner contends:

11
 I

The Honorable Court of Appeals committed egregious error by ruling that the order of the lower court which granted private
respondents Motions to Dismiss are not proper subjects of a Petition for Certiorariunder Rule 65.

A. Section 5, Rule 16 does not apply in the present case since the grounds for dismissal [were] petitioners purported lack
of capacity to sue and its failure to state a cause of action against private respondents, and not any of the three (3)
grounds provided under said provision, namely, res judicata, extinction of the claim, and Statute of Frauds.

B. Section 1 of Rule 41, which is the applicable provision in petitioners case, expressly proscribes the taking of an appeal
from an order denying a motion for reconsideration or one which dismisses an action without prejudice, instead, the proper
remedy is a special civil action under Rule 65.

C. A petition for certiorari under Rule 65 was correctly resorted to by petitioner from the dismissal order of the lower court,
which had clearly acted with grave abuse of discretion amounting to lack of jurisdiction.

II

The Honorable Court of Appeals committed serious error in ruling that it had no jurisdiction to entertain the Petition
for Certiorari filed by petitioner before it.

A. Section 2, Rule 50 nor Section 2(c) and Section 2(c), Rule 41 find no application in the present case, since said rule
contemplates of a case where an appeal is the proper remedy, and not where the appropriate remedy is a petition
for certiorari where questions of facts and laws may be reviewed by the court a quo.

B. The court a quo erroneously concluded that it has no jurisdiction over the subject matter of the petition based on the
wrong premise that an appeal from the lower courts dismissal order is the proper remedy by applying Section 2, Rule 50
and Section 2(c), Rule 41 of the Rules of Court.
The Courts Ruling
The Petition is unmeritorious.
First Issue:
Remedy Against Dismissal of Complaint
The resolution of this case hinges on the proper remedy: an appeal or a petition for certiorari. Petitioner claims that it
correctly questioned the trial courts Order through its Petition for Certiorari. Respondents insist that an ordinary appeal was
the proper remedy. We agree with respondents.
Appeal
Under Rule 41, Rules of Court, an appeal may be taken from a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by the Rules of Court to be appealable. [25] The manner of appealing
an RTC judgment or final order is also provided in Rule 41 as follows:

Section 2. Modes of appeal.

(a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.

(b) Petition for review. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of
its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule 45.[26]

An order or a judgment is deemed final when it finally disposes of a pending action, so that nothing more can be done
with it in the trial court. In other words, the order or judgment ends the litigation in the lower court. Au contraire, an

12
interlocutory order does not dispose of the case completely, but leaves something to be done as regards the merits of the
latter.[27]
Petition for Certiorari
A petition for certiorari is governed by Rule 65, which reads:

Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of Section 3, Rule 46.[28]

A writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting
to lack or excess of jurisdiction. The writ cannot be used for any other purpose, as its function is limited to keeping the
inferior court within the bounds of its jurisdiction.[29]
For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board or any
officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law. [30]
Without jurisdiction means that the court acted with absolute lack of authority. [31] There is excess of jurisdiction when
the court transcends its power or acts without any statutory authority. [32] Grave abuse of discretion implies such capricious
and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised
in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or
so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at
all in contemplation of law.[33]
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of
judgment.[34] In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light:

When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being
exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and
every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not
survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari.[35]

The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of
reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case,
or of the wisdom or legal soundness of the decision. [36] Even if the findings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond the province of certiorari.[37] Where the error is not one of
jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy. [38]
As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over
a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the
proceedings of lower courts. [39] An appeal is thus a continuation of the original suit, while a petition for certiorari is an
original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order
complained of.[40] The parties to an appeal are the original parties to the action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency,
and the prevailing parties (the public and the private respondents, respectively). [41]
As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declare are
appealable.[42] Since the issue is jurisdiction, an original action for certiorarimay be directed against an interlocutory order

13
of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate
remedy.[43]
As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final
order appealed from.[44] Where a record on appeal is required, the appellant must file a notice of appeal and a record on
appeal within thirty days from the said notice of judgment or final order. [45] A petition for review should be filed and served
within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for
reconsideration.[46] In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment
or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration.[47]
On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order,
or resolution.[48] If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the
denial of the motion.[49]
As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the
filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this
motion is a plain and adequate remedy expressly available under the law. [50] Such motion is not required before appealing
a judgment or final order.[51]
Certiorari Not the Proper Remedy
if Appeal Is Available

Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal
(including petitions for review) and certiorari are mutually exclusive, not alternative or successive.[52] Hence, certiorari is not
and cannot be a substitute for an appeal, especially if ones own negligence or error in ones choice of remedy occasioned
such loss or lapse.[53] One of the requisites of certiorari is that there be no available appeal or any plain, speedy and
adequate remedy.[54] Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of
discretion.
Second Issue:
CA Jurisdiction

Petitioner was ascribing errors of judgment, not jurisdiction, in its Petition for Certiorari filed with the Court of Appeals.
The issue raised there was the trial courts alleged error in dismissing the Complaint for lack of cause of action. Petitioner
argues that it could still institute the Complaint, even if it had filed a Petition for Insolvency earlier. [55] As petitioner was
challenging the trial courts interpretation of the law -- posing a question of law -- the issue involved an error of judgment,
not of jurisdiction. An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not necessarily
equivalent to grave abuse of discretion. [56]
The instant case falls squarely with Barangay Blue Ridge A of QC v. Court of Appeals.[57] In that case, the trial court
granted the Motion to Dismiss on the ground of failure to state a cause of action. After the Motion for Reconsideration was
denied, petitioner filed a Petition for Certiorari with the CA. The appellate court denied the Petition on the ground that the
proper remedy was appeal. Holding that an error of judgment should be reviewed through an ordinary appeal, this Court
upheld the CA.
The Dismissal -- a Final Order
An order of dismissal, whether correct or not, is a final order. [58] It is not interlocutory because the proceedings are
terminated; it leaves nothing more to be done by the lower court. Therefore the remedy of the plaintiff is to appeal the
order.[59]
Petitioner avers that Section 5 of Rule 16[60] bars the filing of an appeal when the dismissal is based on lack of cause
of action. It adds that Section 5 limits the remedy of appeal only to dismissals grounded on prior judgments or on the
statute of limitations, or to claims that have been extinguished or are unenforceable. We find this interpretation absurd.
The provision is clear. Dismissals on the aforesaid grounds constitute res judicata. However, such dismissals are still
subject to a timely appeal. For those based on other grounds, the complaint can be refiled. Section 5, therefore, confirms
that an appeal is the remedy for the dismissal of an action.
Citing Sections 1(a) and 1(h), Rule 41,[61] petitioner further claims that it was prohibited from filing an appeal. Section
1(a) of the said Rule prohibits the filing of an appeal from an order denying a motion for reconsideration, because the
remedy is to appeal the main decision as petitioner could have done. In fact, under Section 9, Rule 37, the remedy against
an order denying a motion for reconsideration is to appeal the judgment or final order. Section 1(h) does not apply,
because the trial courts Order did not dismiss the action without prejudice. [62]
14
Exception to the Rule
Not Established by Petitioner
We are not unaware of instances when this Court has granted certiorari despite the availability of appeal.[63] Where the
exigencies of the case are such that the ordinary methods of appeal may not prove adequate -- either in point of
promptness or completeness, so that a partial if not a total failure of justice could result -- a writ of certiorari may still be
issued.[64]Petitioner cites some of these exceptions to justify the remedy it has undertaken with the appellate court, [65] but
these are not applicable to the present factual milieu.
Even assuming that the Order of the RTC was erroneous, its error did not constitute grave abuse of discretion.
Petitioner asserts that the trial court should not have dismissed the Complaint or should have at least allowed the
substitution of the assignee in petitioners stead.[66] These alleged errors of judgment, however, do not constitute a despotic,
capricious, or whimsical exercise of power. On the contrary, petitioner availed of certiorari because the 15-day period
within which to file an appeal had already lapsed. Basic is the rule that certiorari is not a substitute for the lapsed remedy of
appeal.
As previously stressed, appeal -- not certiorari -- was the correct remedy to elevate the RTCs Order granting the
Motion to Dismiss. The appeal, which would have involved a pure question of law, should have been filed with the
Supreme Court pursuant to Section 2 (c) of Rule 41 and Section 2 of Rule 50, [67] Rules of Court.
WHEREFORE, this Petition is DENIED, and the challenged Decision and Resolution AFFIRMED.
Costs against petitioner.
SO ORDERED.
Corona and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on leave.
_________________________________________________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

RESOLUTION

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009
(Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En
Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera
from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed
Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of
RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of
Section 80 of the Omnibus Election Code.

15
3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of
premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election
campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions
determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy]
proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of
his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting
premature campaigning, for which he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before
the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of
candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature
campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a
candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an
election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a
certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a
"candidate." The third element requires that the campaign period has not started when the election campaign or partisan
political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of
the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation
of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such
last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of
candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy
on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

16
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain
the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite.
Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the
same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in
the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except
for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the
position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections,
the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates
under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system
shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March
27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price
comparable with that of private printers under proper security measures which the Commission shall adopt. The
Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral
ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the
Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot
stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to
reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and
national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many
prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

17
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a
candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result
in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a
candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to
prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal
and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon
being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough
time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election
periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are
talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120
days also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate
of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots.
This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing
law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions
of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the
original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign
period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and
that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the
automated election system would be disqualified or penalized for any partisan political act done before the start of the

18
campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third
paragraph of the amended Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active
members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third
paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot
would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15
of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law.
Thus, the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence,
which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of
the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The
original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed
by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign
period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not
consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is
absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the
amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties."
However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because
"any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start
of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy
on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate,
for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or
candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period.

19
Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the
questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of
candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On
29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts
committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election
campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts
are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period
are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended
Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign
period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts
constituting premature campaigning can only be committed, for which the offender may be disqualified, during the
campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning
before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the
start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the
Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the
campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her
prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are
only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her candidacy.6(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to
expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent
danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and
logical result is that the same acts, if done before the start of the campaign period, are lawful.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign
period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any
election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and
express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only
after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision
is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period
starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the
campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law
state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes

20
unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as
envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for
vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period.
This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he
filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This
Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately
succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of
this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30
January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda
A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

_________________________________________________________________________________

EN BANC
ROSALINDA A. PENERA, G. R. No. 181613
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ.

COMMISSION ON ELECTIONS and EDGAR Promulgated:

T. ANDANAR,
Respondents. September 11, 2009
x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining
Order [1] under Rule 65, in relation to Rule 64 of the Rules of Court, seeks the nullification of the Resolution [2] dated 30
January 2008 of the Commission on Elections (COMELEC) en banc. Said Resolution denied the Motion for
Reconsideration of the earlier Resolution[3] dated 24 July 2007 of the COMELEC Second Division in SPA No. 07-224,

21
ordering the disqualification of herein petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of
the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and Local Elections.

The antecedents of the case, both factual and procedural, are set forth hereunder:

Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica during the 14 May
2007 elections.

On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a
Petition for Disqualification[4] against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who
belonged to her political party,[5] for unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period. The petition was docketed as SPA No. 07-224.

Andanar claimed that on 29 March 2007 a day before the start of the authorized campaign period on 30 March
2007 Penera and her partymates went around the different barangays in Sta. Monica, announcing their candidacies and
requesting the people to vote for them on the day of the elections. Attached to the Petition were the Affidavits of
individuals[6] who witnessed the said incident.

Penera alone filed an Answer[7] to the Petition on 19 April 2007, averring that the charge of premature campaigning was
not true. Although Penera admitted that a motorcade did take place, she explained that it was simply in accordance with
the usual practice in nearby cities and provinces, where the filing of certificates of candidacy (COCs) was preceded by a
motorcade, which dispersed soon after the completion of such filing. In fact, Penera claimed, in the motorcade held by her
political party, no person made any speech, not even any of the candidates. Instead, there was only marching music in the
background and a grand standing for the purpose of raising the hands of the candidates in the motorcade. Finally, Penera
cited Barroso v. Ampig[8] in her defense, wherein the Court supposedly ruled that a motorcade held by candidates during
the filing of their COCs was not a form of political campaigning.

Also on 19 April 2007, Andanar and Penera appeared with their counsels before the ORED-Region XIII, where they agreed
to submit their position papers and other evidence in support of their allegations.[9]

After the parties filed their respective Position Papers, the records of the case were transmitted to the COMELEC main
office in Manila for adjudication. It was subsequently raffled to the COMELEC Second Division.

While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May 2007 elections took place and, as
a result thereof, Penera was proclaimed the duly elected Mayor of Sta. Monica. Penera soon assumed office on 2 July
2002.

On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-224, penned by Commissioner
Nicodemo T. Ferrer (Ferrer), which disqualified Penera from continuing as a mayoralty candidate in Sta. Monica, for
engaging in premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code.

The COMELEC Second Division found that:

On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of candidacy for local elective positions and a
day before the start of the campaign period for the May 14, 2007 elections [some of the members of the political party
Partido Padajon Surigao], headed by their mayoralty candidate Datty Penera, filed their respective Certificates of
Candidacy before the Municipal Election Officer of Sta. Monica, Surigao del Norte.

Accompanied by a bevy of supporters, [Penera and her partymates] came to the municipal COMELEC office on board a
convoy of two (2) trucks and an undetermined number of motorcycles, laden with balloons ad [sic] posters/banners
containing names and pictures and the municipal positions for which they were seeking election. Installed with [sic] one of
the trucks was a public speaker sound subsystem which broadcast [sic] the intent the [sic] run in the coming elections. The
truck had the posters of Penera attached to it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a
candidate for the position of Board Member,] was proudly seen at the vehicles side. The group proceeded to motorcade
until the barangays of Bailan, Libertad and as afar [sic] as Mabini almost nine (9) kilometers from Sta. Monica. [Penera and
her partymates] were seen aboard the vehicles and throwing candies to the residents and onlookers.

22
Various affidavits and pictures were submitted elucidating the above-mentioned facts. The above facts were also admitted
in the Answer, the Position Paper and during the hearings conducted for this case, the only defense propounded by
[Penera] is that such acts allegedly do not constitute campaigning and is therefore not proscribed by the pertinent election
laws.

xxxx

What we however find disturbing is [Peneras] reference to the Ampig Case as the justification for the acts committed by
[her]. There is really no reference to the acts or similar acts committed by [Penera] as having been considered as not
constituting political campaign or partisan political activity. The issue in that case is whether or not the defect of the lack of
a certification against non-forum [sic] shopping should result to the immediate dismissal of the election cases filed in that
case. There is nothing in said case justifying a motorcade during the filing of certificates of candidacy. [Peneras] reliance
thereon is therefore misplaced and of no potency at all.

xxxx

However, the photos submitted by [Andanar] only identified [Penera] and did not have any notation identifying or indicating
any of the other [candidates from Peneras party]. It cannot be conclusively proven that the other [candidates from Peneras
party] were indeed with Penera during the Motorcade. More importantly, the Answer and the Position Paper contain
admissions referring only to [Penera]. There is therefore no justification for a whole sale [sic] disqualification of all the
[candidates from Peneras party], as even the petition failed to mention particularly the participation of the other individual
[party members].[10]

The afore-quoted findings of fact led the COMELEC Second Division to decree:

PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but absolves the other [candidates from
Peneras party] from violation of section 80 and 68 of the Omnibus Elections [sic] Code.[11]

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion [12] on the 24 July 2007 Resolution. Although
Commissioner Tuason concurred with the ponente, he stressed that, indeed, Penera should be made accountable for her
actions after the filing of her COC on 29 March 2007. Prior thereto, there was no candidate yet whose candidacy would
have been enhanced by the premature campaigning.

It was the third member of the COMELEC Second Division, Commissioner Rene V. Sarmiento (Sarmiento) who put forth a
Dissenting Opinion[13] on the 24 July 2007Resolution. Commissioner Sarmiento believed that the pieces of evidence
submitted by Andanar did not sufficiently establish probable cause that Penera engaged in premature campaigning, in
violation of Sections 80 and 68 of the Omnibus Election Code. The two photocopied pictures, purporting to be those of
Penera, did not clearly reveal what was actually happening in the truck or who were the passengers thereof. Likewise, the
Affidavits seemed to have been prepared and executed by one and the same person because they had similar sentence
construction and form, and they were sworn to before the same attesting officer.

Penera filed before the COMELEC en banc a Motion for Reconsideration[14] of the 24 July 2007 Resolution of the
COMELEC Second Division, maintaining that she did not make any admission on the factual matters stated in the
appealed resolution. Penera also contended that the pictures and Affidavits submitted by Andanar should not have been
given any credence. The pictures were mere photocopies of the originals and lacked the proper authentication, while the
Affidavits were taken ex parte, which would almost always make them incomplete and inaccurate. Subsequently, Penera
filed a Supplemental Motion for Reconsideration,[15] explaining that supporters spontaneously accompanied Penera and
her fellow candidates in filing their COCs, and the motorcade that took place after the filing was actually part of the
dispersal of said supporters and their transportation back to their respective barangays.

In the Resolution dated 30 January 2008, the COMELEC en banc denied Peneras Motion for Reconsideration, disposing
thus:

WHEREFORE, this Commission RESOLVES to DENY the instant Motion for Reconsideration filed by [Penera] for UTTER
LACK OF MERIT.[16]

23
The COMELEC en banc ruled that Penera could no longer advance the arguments set forth in her Motion for
Reconsideration and Supplemental Motion for Reconsideration, given that she failed to first express and elucidate on the
same in her Answer and Position Paper. Penera did not specifically deny the material averments that the motorcade went
as far as Barangay Mabini, announcing their candidacy and requesting the people to vote for them on Election Day,
despite the fact that the same were clearly propounded by Andanar in his Petition for Disqualification and Position
Paper. Therefore, these material averments should be considered admitted. Although the COMELEC en banc agreed that
no undue importance should be given to sworn statements or affidavits submitted as evidence, this did not mean that such
affidavits should not be given any evidentiary weight at all. Since Penera neither refuted the material averments in
Andanars Petition and the Affidavits attached thereto nor submitted countervailing evidence, then said Affidavits, even if
taken ex parte, deserve some degree of importance. The COMELEC en banc likewise conceded that the pictures
submitted by Andanar as evidence would have been unreliable, but only if they were presented by their
lonesome. However, said pictures, together with Peneras admissions and the Affidavits of Andanars witnesses, constituted
sufficient evidence to establish Peneras violation of the rule against premature campaigning. Lastly, the COMELEC en
banc accused Penera of deliberately trying to mislead the Commission by citing Barroso, given that the said case was not
even remotely applicable to the case at bar.

Consistent with his previous stand, Commissioner Sarmiento again dissented [17] from the 30 January 2008 Resolution of
the COMELEC en banc. He still believed that Andanar was not able to adduce substantial evidence that would support the
claim of violation of election laws. Particularly, Commissioner Sarmiento accepted Peneras explanation that the motorcade
conducted after the filing by Penera and the other candidates of their COCs was merely part of the dispersal of the
spontaneous gathering of their supporters. The incident was only in accord with normal human social experience.

Still undeterred, Penera filed the instant Petition before us, praying that the Resolutions dated 24 July 2007 and 30 January
2008 of the COMELEC Second Division and en banc, respectively, be declared null and void for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

In a Resolution[18] dated 4 March 2008, we issued a Temporary Restraining Order (TRO), enjoining the COMELEC from
implementing the assailed Resolutions, on the condition that Penera post a bond in the amount of P5,000.00. We also
directed COMELEC and Andanar to comment on the instant Petition.

After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar filed their respective Comments[19] on
the Petition at bar, we required Penera, in a Resolution [20] dated 17 June 2008, to file a Reply. However, as no Reply was
filed in due time, we dismissed Peneras Petition in a Resolution [21] dated 14 October 2008, in accordance with Rule 56,
Section 5(e) of the Rules of Court.[22] Penera subsequently filed an Ex Parte Motion to Admit Reply,[23] which we treated as
a Motion for Reconsideration of the Resolution dated 14 October 2008. On 11 November 2008, we issued another
Resolution reinstating Peneras Petition.[24]

Penera presents the following issues for our consideration:

I.

Whether or not [Penera] has engaged in an election campaign or partisan political activity outside the campaign period.

II.

Whether the contents of the complaint are deemed admitted for failure of [Penera] to specifically deny the same.

III.

Whether or not [Andanar] has presented competent and substantial evidence to justify a conclusion that [Penera] violated
Section 80 and 68 of the Omnibus Election Code.

IV.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction in
finding that the act of [Penera] in conducting a motorcade before the filing of her certificate of candidacy constitutes
premature campaigning.
24
V.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction when
it resolves [sic] to disqualify [Penera] despite the failure of [Andanar] to present competent, admissible and substantial
evidence to prove [the] violation of Section 68 and 80 of the Omnibus Election Code.

Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and whimsically in disqualifying her as a
mayoralty candidate in Sta. Monica on the ground that she engaged in premature campaigning. She asserts that the
evidence adduced by Andanar was grossly insufficient to warrant the ruling of the COMELEC.

Penera insists that the COMELEC Second Division erred in its findings of fact, basically adopting Andanars allegations
which, contrary to the belief of the COMELEC Second Division, Penera never admitted. Penera maintains that the
motorcade was spontaneous and unplanned, and the supporters merely joined Penera and the other candidates from her
party along the way to, as well as within the premises of, the office of the COMELEC Municipal Election Officer. Andanars
averments that after Penera and the other candidates from her party filed their COCs, they held a motorcade in the
different barangays of Sta. Monica, waived their hands to the public and threw candies to the onlookers were not supported
by competent substantial evidence. Echoing Commissioner Sarmientos dissent from the assailed COMELEC Resolutions,
Penera argues that too much weight and credence were given to the pictures and Affidavits submitted by Andanar. The
declaration by the COMELEC that it was Penera in the pictures is tenuous and erroneous, as the COMELEC has no
personal knowledge of Peneras identity, and the said pictures do not clearly reveal the faces of the individuals and the
contents of the posters therein. In the same vein, the Affidavits of Andanars known supporters, executed almost a month
after Andanar filed his Petition for Disqualification before the ORED-Region XIII, were obviously prepared and executed by
one and the same person, because they have a similar sentence construction, and computer font and form, and were even
sworn to before the same attesting officer on the same date.

We find no merit in the instant Petition.

The questions of fact

Crystal clear from the above arguments is that Penera is raising only questions of fact in her Petition presently before
us. We do not find any reason to pass upon the same, as this Court is not a trier of facts. It is not the function of the Court
to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in
such an event.

The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion, and it does
not include a review of the tribunals evaluation of the evidence. [25] Because of its fact-finding facilities and its knowledge
derived from actual experience, the COMELEC is in a peculiarly advantageous position to evaluate, appreciate and decide
on factual questions before it. Factual findings of the COMELEC, based on its own assessments and duly supported by
evidence, are conclusive on this Court, more so in the absence of a grave abuse of discretion, arbitrariness, fraud, or error
of law in the questioned resolutions. Unless any of these causes are clearly substantiated, the Court will not interfere with
the findings of fact of the COMELEC.[26]

Grave abuse of discretion is such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere
abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion
or personal hostility. The abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. [27]

We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the COMELEC Second
Division in disqualifying Penera as a mayoralty candidate in Sta. Monica in the Resolution dated 24 July 2007; and also on
the part of the COMELEC en banc in denying Peneras Motion for Reconsideration on the Resolution dated 30 January
2008. Said Resolutions are sufficiently supported by substantial evidence, meaning, such evidence as a reasonable mind
might accept as adequate to support a conclusion.[28]

The prohibited act of premature campaigning is defined under Section 80 of the Omnibus Election Code, to wit:

25
SECTION 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any
person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election
campaign or partisan political activity except during the campaign period: Provided, That political parties may hold
political conventions or meetings to nominate their official candidates within thirty days before the commencement of the
campaign period and forty-five days for Presidential and Vice-Presidential election. (Emphasis ours.)

If the commission of the prohibited act of premature campaigning is duly proven, the consequence of the violation is clearly
spelled out in Section 68 of the said Code, which reads:

SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of having xxx (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
election laws. (Emphases ours.)

In the case at bar, it had been sufficiently established, not just by Andanars evidence, but also those of Penera herself, that
Penera and her partymates, after filing their COCs on 29 March 2007, participated in a motorcade which passed through
the different barangays of Sta. Monica, waived their hands to the public, and threw candies to the onlookers.

Indeed, Penera expressly admitted in her Position Paper that:

Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10) motorcycles after filing their
Certificate of Candidacy at 3:00 P.M., March 29, 2007 without any speeches made and only one streamer of a board
member Candidate and multi-colored balloons attached to the jeppneys [sic] and motorcycles. [29] (Emphasis ours.)

Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil, attached to Peneras Position Paper,
gave an even more straightforward account of the events, thus:

1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte, Mayoralty Candidates Rosalinda CA. Penera
[sic] and her parties of four (4) kagawads filed their certificate of candidacy at the COMELEC Office;

2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10 motorcycles after actual registration with
the COMELEC with jeeps decorated with balloons and a streamer of Margarito Longos, Board Member Candidate;

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays while supporters were
throwing sweet candies to the crowd;

4. That there was merriment and marching music without mention of any name of the candidates more particularly
lead-candidate Rosalinda CA. Penera [sic];

5. That we were in the motorcade on that afternoon only riding in one of the jeepneys.[30] (Emphases ours.)

In view of the foregoing admissions by Penera and her witnesses, Penera cannot now be allowed to adopt a conflicting
position.

More importantly, the conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely
within the ambit of Section 79(b)(2) of the Omnibus Election Code, on [h]olding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate[.] A motorcade is a procession or parade of automobiles or other motor
vehicles.[31] The conduct thereof during election periods by the candidates and their supporters is a fact that need not be
belabored due to its widespread and pervasive practice. The obvious purpose of the conduct of motorcades is to introduce
the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as
to facilitate the recognition and recollection of their names in the minds of the voters come election time. Unmistakably,
motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates.

26
In the instant Petition, Penera never denied that she took part in the conduct of the motorcade after she filed her COC on
the day before the start of the campaign period.She merely claimed that the same was not undertaken for campaign
purposes. Penera proffered the excuse that the motorcade was already part of the dispersal of the supporters who
spontaneously accompanied Penera and her partymates in filing their COCs. The said supporters were already being
transported back to their respective barangays after the COC filing. Penera stressed that no speech was made by any
person, and there was only background marching music and a grand standing for the purpose of raising the hands of the
candidates in the motorcade.

We are not convinced.

As we previously noted, Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten
motorcycles, were festooned with multi-colored balloons; the motorcade went around three barangays in Sta. Monica; and
Penera and her partymates waved their hands and threw sweet candies to the crowd. With vehicles, balloons, and even
candies on hand, Penera can hardly persuade us that the motorcade was spontaneous and unplanned.

For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside
the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica.

The questions of law

The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No. 8436, as amended by Republic
Act No. 9369, provides a new definition of the term candidate, as a result of which, premature campaigning may no longer
be committed.

Under Section 79(a) of the Omnibus Election Code, a candidate is any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition
of parties.

Republic Act No. 8436,[32] enacted on 22 December 1997, authorized the COMELEC to use an automated election system
for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local
elections. The statute also mandated the COMELEC to acquire automated counting machines, computer equipment,
devices and materials; and to adopt new electoral forms and printing materials. In particular, Section 11 of Republic Act
No. 8436 provided for the specifications of the official ballots to be used in the automated election system and the
guidelines for the printing thereof, the relevant portions of which state:

SECTION 11. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the
titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to
participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That,
for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of
President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or
manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on March 27, 1998. (Emphases ours.)

27
On 10 February 2007, Republic Act No. 9369[33] took effect. Section 13 of Republic Act No. 9369 amended Section 11 of
Republic Act No. 8436 and renumbered the same as the new Section 15 of Republic Act No. 8436. The pertinent portions
of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, now read:

SECTION.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form
of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an
initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all
candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to
present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot
options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to
completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged
alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in
the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be
uniformly indicated using the same font and size.

A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official
ballot shall be provided.

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate
of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon the start
of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers, and employees in government-owned or-controlled
corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day
of the filing of his/her certification of candidacy. (Emphases ours.)

In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the Dissenting Opinion argues that
Section 80 of the Omnibus Election Code can not be applied to the present case since, as the Court held in Lanot v.
Commission on Elections,[34] the election campaign or partisan activity, which constitute the prohibited premature
campaigning, should be designed to promote the election or defeat of a particular candidate or candidates. Under
present election laws, while a person may have filed his/her COC within the prescribed period for doing so, said person
shall not be considered a candidate until the start of the campaign period. Thus, prior to the start of the campaign period,
there can be no election campaign or partisan political activity designed to promote the election or defeat of a particular
candidate to public office because there is no candidate to speak of.

According to the Dissenting Opinion, even if Peneras acts before the start of the campaign period constitute election
campaigning or partisan political activities, these are not punishable under Section 80 of the Omnibus Election Code given
that she was not yet a candidate at that time. On the other hand, Peneras acts, if committed within the campaign period,
when she was already a candidate, are likewise not covered by Section 80 as this provision punishes only acts outside the
campaign period.

The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No. 8436, as amended, the
prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at
any time.

We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act
No. 8436, as amended.

A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436, would readily reveal that that
it did not contain an express repeal of Section 80 of the Omnibus Election Code. An express repeal is one wherein a
statute declares, usually in its repealing clause, that a particular and specific law, identified by its number or title, is
repealed.[35] Absent this specific requirement, an express repeal may not be presumed.

Although the title of Republic Act No. 9369 particularly mentioned the amendment of Batas Pambansa Blg. 881, or the
Omnibus Election Code, to wit:
28
An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated
Election System x x x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),

said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg. 881. Such fact is indeed very
material. Repeal of a law means its complete abrogation by the enactment of a subsequent statute, whereas
the amendment of a statute means an alteration in the law already existing, leaving some part of the original still
standing.[36]Section 80 of the Omnibus Election Code is not even one of the specific provisions of the said code that were
expressly amended by Republic Act No. 9369.

Additionally, Section 46,[37] the repealing clause of Republic Act No. 9369, states that:

Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules and regulations or parts thereof
inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which predicates the intended repeal
under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific
repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and
repugnancy exist in the terms of the new and old laws. This latter situation falls under the category of an implied repeal.[38]

Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to effect a repeal by
implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be
made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal
may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in
character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly
enacted. An inconsistency that falls short of that standard does not suffice.[39]

Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead of
declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for the
judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same legislature,
and so give effect to both while at the same time also according due respect to a coordinate department of the
government.[40]

To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as
amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is
possible to harmonize and reconcile these two provisions and, thus, give effect to both.

The following points are explanatory:

First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that [i]t shall be unlawful
for any person, whether or not a voter or candidate,or for any party, or association of persons, to engage in an election
campaign or partisan political activity, except during the campaign period. Very simply, premature campaigning may be
committed even by a person who is not a candidate.

For this reason, the plain declaration in Lanot that [w]hat Section 80 of the Omnibus Election Code prohibits is an election
campaign or partisan political activity by a candidateoutside of the campaign period,[41] is clearly erroneous.

Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following
manner:

SECTION 79. Definitions. - As used in this Code:

xxxx

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include:

29
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate
for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate;
or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the
start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing
of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The
commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e.,
holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of
promoting his/her intended candidacy.

When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality,
we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of
his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. Also,
conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to
view his/her acts prior to said period as acts for the promotion of his/her election as a candidate. In the latter case, there
can be no premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.[42]

Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as amended, which
provides that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign
period, does not mean that the acts constituting premature campaigning can only be committed, for which the offender may
be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in the
said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may
freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the
start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code
as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the
Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the
campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of
his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other
candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.

As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus
Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very possible, but in fact desirable,
necessary and consistent with the legislative intent and policy of the law.

The laudable and exemplary intention behind the prohibition against premature campaigning, as declared in Chavez v.
Commission on Elections,[43] is to level the playing field for candidates of public office, to equalize the situation between the
popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former
from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The intention for
prohibiting premature campaigning, as explained in Chavez, could not have been significantly altered or affected by
Republic Act No. 8436, as amended by Republic Act No. 9369, the avowed purpose of which is to carry-on the automation
30
of the election system. Whether the election would be held under the manual or the automated system, the need for
prohibiting premature campaigning to level the playing field between the popular or rich candidates, on one hand,
and the lesser-known or poorer candidates, on the other, by allowing them to campaign only within the same
limited period remains.

We cannot stress strongly enough that premature campaigning is a pernicious act that is continuously threatening to
undermine the conduct of fair and credible elections in our country, no matter how great or small the acts constituting the
same are. The choice as to who among the candidates will the voting public bestow the privilege of holding public office
should not be swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend resources to
promote their candidacies in advance of the period slated for campaign activities.

Verily, the consequences provided for in Section 68 [44] of the Omnibus Election Code for the commission of the prohibited
act of premature campaigning are severe: the candidate who is declared guilty of committing the offense shall be
disqualified from continuing as a candidate, or, if he/she has been elected, from holding office. Not to mention that said
candidate also faces criminal prosecution for an election offense under Section 262 of the same Code.

The Dissenting Opinion, therefore, should not be too quick to pronounce the ineffectiveness or repeal of Section
80 of the Omnibus Election Code just because of a change in the meaning of candidate by Section 15 of Republic
Act No. 8436, as amended, primarily, for administrative purposes. An interpretation should be avoided under which a
statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed,
explained away, or rendered insignificant, meaningless, inoperative, or nugatory. [45] Indeed, not only will the prohibited act
of premature campaigning be officially decriminalized, the value and significance of having a campaign period before the
conduct of elections would also be utterly negated. Any unscrupulous individual with the deepest of campaign war chests
could then afford to spend his/her resources to promote his/her candidacy well ahead of everyone else. Such is the very
evil that the law seeks to prevent. Our lawmakers could not have intended to cause such an absurd situation.

The Dissenting Opinion attempts to brush aside our preceding arguments by contending that there is no room for statutory
construction in the present case since Section 15 of Republic Act No. 8436,[46] as amended by Section 13 of Republic Act
No. 9369,[47] is crystal clear in its meaning. We disagree. There would only be no need for statutory construction if there is
a provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall be no more premature
campaigning. But absent the same, our position herein, as well as that of the Dissenting Opinion, necessarily rest on our
respective construction of the legal provisions involved in this case.

Notably, while faulting us for resorting to statutory construction to resolve the instant case, the Dissenting Opinion itself
cites a rule of statutory construction, particularly, that penal laws should be liberally construed in favor of the offender. The
Dissenting Opinion asserts that because of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the
election offense described in Section 80 of the Omnibus Election Code is practically impossible to commit at any time and
that this flaw in the law, which defines a criminal act, must be construed in favor of Penera, the offender in the instant case.

The application of the above rule is uncalled for. It was acknowledged in Lanot that a disqualification case has two aspects:
one, electoral;[48] the other, criminal.[49] The instant case concerns only the electoral aspect of the disqualification case. Any
discussion herein on the matter of Peneras criminal liability for premature campaigning would be nothing more than obiter
dictum. More importantly, as heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as amended, did
not expressly or even impliedly repeal Section 80 of the Omnibus Election Code, and these two provisions, based on
legislative intent and policy, can be harmoniously interpreted and given effect. Thus, there is no flaw created in the law,
arising from Section 15 of Republic Act No. 8436, as amended, which needed to be construed in Peneras favor.

The Dissenting Opinion further expresses the fear that pursuant to our theory, all the politicians with infomercials prior to
the filing of their COCs would be subject to disqualification, and this would involve practically all the prospective
presidential candidates who are now leading in the surveys.

This fear is utterly unfounded. It is the filing by the person of his/her COC through which he/she explicitly declares
his/her intention to run as a candidate in the coming elections. It is such declaration which would color the subsequent
acts of said person to be election campaigning or partisan political activities as described under Section 79(b) of the
Omnibus Election Code. It bears to point out that, at this point, no politician has yet submitted his/her COC. Also,

31
the plain solution to this rather misplaced apprehension is for the politicians themselves to adhere to the letter and intent of
the law and keep within the bounds of fair play in the pursuit of their candidacies. This would mean that after filing their
COCs, the prudent and proper course for them to take is to wait for the designated start of the campaign period before they
commence their election campaign or partisan political activities. Indeed, such is the only way for them to avoid
disqualification on the ground of premature campaigning. It is not for us to carve out exceptions to the law, much more to
decree away the repeal thereof, in order to accommodate any class of individuals, where no such exception or repeal is
warranted.

Lastly, as we have observed at the beginning, Peneras Petition is essentially grounded on questions of fact. Peneras
defense against her disqualification, before the COMELEC and this Court, rests on the arguments that she and her
partymates did not actually hold a motorcade; that their supporters spontaneously accompanied Penera and the other
candidates from her political party when they filed their certificates of candidacy; that the alleged motorcade was actually
the dispersal of the supporters of Penera and the other candidates from her party as said supporters were dropped off at
their respective barangays; and that Andanar was not able to present competent, admissible, and substantial evidence to
prove that Penera committed premature campaigning. Penera herself never raised the argument that she can no
longer be disqualified for premature campaigning under Section 80, in relation to Section 68, of the Omnibus
Election Code, since the said provisions have already been, in the words of the Dissenting Opinion, rendered
inapplicable, repealed, and done away with by Section 15 of Republic Act No. 8436, as amended. This legal
argument was wholly raised by the Dissenting Opinion.

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court will
not be permitted to change theory on appeal. Points of law, theories, issues, and arguments not brought to the attention of
the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the
first time at such late stage. Basic considerations of due process underlie this rule.[50] If we do not allow and consider the
change in theory of a case by a party on appeal, should we not also refrain from motu proprio adopting a theory which
none of the parties even raised before us?

Nonetheless, the questions of fact raised by Penera and questions of law raised by the Dissenting Opinion must all be
resolved against Penera. Penera should be disqualified from holding office as Mayor of Sta. Monica for having committed
premature campaigning when, right after she filed her COC, but still a day before the start of the campaign period, she took
part in a motorcade, which consisted of two jeepneys and ten motorcycles laden with multi-colored balloons that went
around several barangays of Sta. Monica, and gave away candies to the crowd.

Succession

Despite the disqualification of Penera, we cannot grant Andanars prayer to be allowed to assume the position of Mayor of
Sta. Monica. The well-established principle is that the ineligibility of a candidate receiving majority votes does not entitle the
candidate receiving the next highest number of votes to be declared elected.[51]

In this case, the rules on succession under the Local Government Code shall apply, to wit:

SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. If a
permanent vacancy occurs in the office of the xxx mayor, the x x x vice-mayor concerned shall become the x x
x mayor.

xxxx

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses
to assume office, fails to qualify or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated
to discharge the functions of his office. (Emphases ours.)

Considering Peneras disqualification from holding office as Mayor of Sta. Monica, the proclaimed Vice-Mayor shall then
succeed as Mayor.

WHEREFORE, premises considered, the instant Petition for Certiorari is hereby DISMISSED. The Resolutions dated 24
July 2007 and 30 January 2008 of the COMELEC Second Division and en banc, respectively, in SPA No. 07-224 are

32
hereby AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera from running for the office of Mayor of
Sta. Monica, Surigao del Norte, and the resulting permanent vacancy therein, it is hereby DECLARED that the proclaimed
Vice-Mayor is the rightful successor to said office. The Temporary Restraining Order issued on 4 March 2008 is
hereby ORDERED lifted. Costs against the petitioner.

SO ORDERED.

_________________________________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13954 August 12, 1959

GENARO GERONA, ET AL., petitioners-appellants,

vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.

K.V. Felon and Hayed C. Cavington for appellant.

Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.

MONTEMAYOR, J.:

Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their complaint. Acting upon the
"Urgent Motion for Writ of Preliminary Injunction" filed on behalf of petitioners of December 12, 1958, and without objection
on the part of the Solicitor General, by resolution of this Court of December 16, we issued the corresponding writ of
preliminary injunction restraining respondents from excluding or banning petitioners-appellants, their children and all other
of Jehovah's Witnesses for whom this action has been brought, from admission to public schools, particularly the
Buenavista Community School, solely on account of their refusal to salute the flag or preventing their return to school
should they have already been banned, until further orders from this Court.

The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and went into effect. Acting
upon section 2 of said Act authorizing and directing the Secretary of Education to issue or cause to be issued rules and
regulations for the proper conduct of the flag ceremony, said Secretary issued Department Order No. 8, series of 1955 on
July 21, 1955 which Department Order quoting Republic Act No. 1265 in its entirety, we reproduce below for purpose of
reference:

"Republic of the Philippines

Department of Education
Office of the Secretary
Manila

Department Order
No. 8, s. 1955

July 21, 1955

COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS

To the Director of Public Schools and the Director of Private Schools:

1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony Compulsory in all Educational
Institutions," which is self-explanatory.

33
SECTION 1. All educational institutions henceforth observe daily flag ceremony, which shall be simple and dignified and
shall include the playing or singing of the Philippine National Anthem.

SECTION 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and
regulations for the proper conduct of the flag ceremony herein provided.

SECTION 3. Failure of refusal to observe the flag ceremony provided by this Act and in accordance with rules and
regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment which shall be published at least once in a
newspaper of general circulation.

In case of failure to observe for the second time the flag ceremony provided by this Act, the Secretary of Education, after
proper notice and hearing, shall cause the cancellation of the recognition or permit of the private educational institution
responsible for such failure.

SECTION 4. This Act shall take effect upon its approval.

Approved, June 11, 1955.

2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct of the required flag
ceremony, given in the in closure to this Order, are hereby promulgated. These rules and regulations should be made
known to all teachers and school officials, public and private. The patriotic objective or significance of the Act should be
explained to all pupils and students in the schools and to all communities through the purok organizations and community
assemblies.

(Sgd.) G. HERNANDEZ, JR.

Secretary of Education

Incl.:
As stated

(Inclosure of Department order No. 8, s. 1955)

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL INSTITUTIONS

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day throughout the
year. It shall be raised at sunrise and lowered at sunset. The flag staff must be straight, slightly and gently tapering at the
end, and of such height as would give the Flag a commanding position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning except when it is
raining, in which event the ceremony may be conducted indoors in the best way possible. A retreat shall be held in the
afternoon of the same day.

The flag-raising ceremony in the morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises shall assemble in formation
facing the flag. At command, books shall be put away or held in the left hand and everybody shall come to attention. Those
with hats shall uncover. No one shall enter or leave the school grounds during the ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the accompaniment
if it has none; or the anthem may be played by the school band alone. At the first note of the Anthem, the flag shall be
raised briskly. While the flag is being raised, all persons present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing that hat over the heart. Those without hats may stand with their arms and hands
downed and straight at the sides. Those in military or Boy Scout uniform shall give the salute prescribed by their
regulations. The salute shall be started as the Flag rises, and completed upon last note of the anthem.

34
c. Immediately following the singing of the Anthem, the assembly shall recite in unison of following patriotic pledge (English
or vernacular version 0, which may bring the ceremony to a close. This is required of all public schools and of private
schools which are intended for Filipino students or whose population is predominantly Filipino.

ENGLISH VERSION

I Love the Philippines.

It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

3. The retreat shall be observed as follows:

a. Teachers and pupils or faculty members and students whose classes and after the last school period in the afternoon
before sun down shall assemble facing the flag. At command, the Philippine National Anthem shall be sung with
accompaniment of the school band. If the school has no band, the assembly will only sing the Anthem. Boys who have
been taking part in preparatory military training or Boy Scout activities shall attend the retreat in formation and execute the
salute prescribed for them. Others shall execute the same salute and observe the same deportment as required of them in
the flag-raising ceremony. The flag should be lowered slowly so that it will be in the hands of the color detail at the sound of
the last note of the Anthem.

b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the singing of the National Anthem, for
the retreat. At the sound of the first note, the assembly shall stand at attention facing the flag and observe the same
deportment as required in the flag-raising ceremony. Or, it may have its bugle corp play "To the Colors" and at the sound of
the first note everybody within hearing distance shall stand at attention, face the flag, and observe the same deportment as
required in the flag-raising ceremony.

4. The flag should be handled reverently in raising or lowering it and not allowed to touch the ground. This can be insured
by having one pupil hold the flag while another pupil fastening it to or unfasten it from the halyard.

5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast, allowing it to fly there for a
moment, and then brought down to half-mast. To lower the flag, it must again be hoisted to full-mast before bringing it
down."

In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955 addressed to Division
Superintendents of Schools, enclosing a copy of Department Order No. 8, series of 1955 and enjoining strict compliance
therewith.

It would appear that pursuant to the Department Order in question, the flag ceremony contemplated therein was held daily
in every school, public and private. Petitioners' children attending the Buenavista Community School, Uson, Masbate,
refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to the requirement of
Department Order No. 8; as a result they were expelled from school sometime in September, 1955. It is said that other
children similarly situated who refused or failed to comply with the requirement about saluting the flag are under threats of
being also expelled from all public schools in the Philippines.

Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of this flag ceremony,
they and their children attending school be allowed to remain silent and stand at attention with their arms and hands down
and straight at the sides and that they be exempted from executing the formal salute, singing of the National Anthem and
the reciting of the patriotic pledge, giving their reason for the same. On December 16, 1955 the Secretary of Education
wrote to counsel for petitioner denying the petition, making it clear that the denial was the final and absolute stand of the
Department of Education on the matter and that counsel may thereafter feel free to seek a judicial determination of the
35
constitutionality or interpretation of Republic Act No. 1265 as construed and applied to Jehovah's Witnesses. The letter
also informed petitioners' counsel that with reference to his letter of December 1, 1955 relative to the request for
reinstatement of petitioners' children who had been expelled from school for non-compliance with Department Order No. 8,
no favorable action could be taken thereon. So, on March 27, 1957 petitioners commenced the present action asking that a
writ of preliminary injunction issue to restrain the Secretary of Education and the Director of Public Schools from enforcing
Department Order No. 8 "as applied to petitioners and all others of Jehovah's Witnesses for whom this action is brought
and to restrain them from excluding from the public schools the children of the petitioners on account of their refusal to
execute a formal salute to the flag, sing the national anthem and recite the patriotic pledge, and that after hearing, the trial
court declare Department Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary injunction prayed for
be made permanent.

Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body teaching that the
obligation imposed by law of God is superior to that of laws enacted by the State. Their religious beliefs include a literal
version of Exodus, Chapter 20, verses 4 and 5, which say: "Thou shalt not make unto thee any graven image, or any
likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou
shalt not bow down thyself to them, nor serve them." They consider that the flag is an "image within this command. For this
reason they refuse to salute it.

To further make clear the stand of petitioners as to the relative position and priority of religious teaching on the one hand
and laws promulgated by the State on the other, we quote from appellant's brief on page 50 thereof:

In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United States Supreme Court held that
the flag `is an emblem of National sovereignty,

To many persons the saluting of a national flag means nothing. To a sincere person who believed in God and the Bible as
his Word, and who is in a covenant with Almighty God to do his will exclusively, it means much. To such person
"sovereignty" means the supreme authority or power. Many believe that "the higher powers," mentioned in the Bible at
Romans 13:1, means the "sovereign state"; but to the Christian this means Jehovah God and his son, Christ Jesus,
Jehovah's anointed King. They, Father and Son are the higher powers, to whom all must be subject and joyfully obey.
(Emphasis supplied)

The question involved in this appeal is a highly important one. We are called upon to determine the right of a citizen as
guaranteed by the Constitution about freedom of religious belief and the right to practice it as against the power and
authority of the State to limit or restrain the same. Our task is lessened by the fact that petitioners do not challenge the
legality or constitutionality of Republic Act 1265. All that they question is the legality or constitutionality of Department
Order No. 8, series of 1955 of the Department of Education implementing said Republic Act.

The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though. So is the freedom of
belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre
and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the former must
yield and give way to the latter. The Government steps in and either restrains said exercise or even prosecutes the one
exercising it.

One may believe in polygamy because it is permitted by his religious, but the moment he translates said religious belief
into an overt act, such as engaging or practising plural marriages, he may be prosecuted for bigamy and he may not plead
or involve his religious belief as a defense or as matter of exemption from the operation of the law.

In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law prohibiting and
punishing polygamy even as against the claim of religious belief of the Mormons. Said the Court:

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plura l
marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit
this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself. Government could exist only in name under such circumstance. (emphasis supplied)
36
Again, one may not believe in the payment of taxes because he may claim that according to his religious belief, the
payment of taxes means service to one other than God. As long as he confines himself to mere belief, well and good. But
when he puts said belief into practice and he actually refuses to pay taxes on his property or on his business, then the
States steps in, compels payment, and enforces it either by court action or levy and distraint.

One of the important questions to determine here is the true meaning and significance of the Filipino flag. Petitioners
believe and maintain that it is an image and therefore to salute the same is to go against their religious belief. "Thou shalt
not make unto thee any graven . . . thou shalt not bow down thyself to them or serve them." They also claim that the flag
salute is a religious ceremony, participation in which is forbidden by their religious belief. We disagree. Appellants
themselves (page 51 of their brief) concede that the flag is a symbol of the State. They give the meaning of the word
"image" on page 51 of their brief as follows:

Under the word "image" this comment is given by Webster: "Image, in modern usage, commonly suggests religious
veneration." (Emphasis supplied)

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national
unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the
complete separation of church and state in our system of governments, the flag is utterly devoid of any religious
significance. Saluting the flag consequently does not involve any religious ceremony. The flag salute, particularly the recital
of the pledge of loyalty is no more a religious ceremony than the taking of an oath of office by a public official or by a
candidate for admission to the bar. In said oath, taken while his right hand is raised, he swears allegiance to the Republic
of the Philippines, promise to defend the Constitution and even invokes the help of God; and it is to be doubted whether a
member of Jehovah's Witness who is a candidate for admission to the Philippine Bar would object to taking the oath on the
ground that is religious ceremony.

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be
left to a a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and
misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as
there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and
good faith, may want to give to such ritual or ceremony.

We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at attention with their arms
and hands down straight at the sides, and they agree that boys, members of Jehovah's Witness who have been taking part
in military training or Boy Scout activities, and are in uniform, may execute the salute to the flag prescribed by the Circular
for them. So, the requirement contained in Department Order No. 8 that during the flag ceremony those without hats may
stand with their arms and hands down and straight at the sides, including the formal salute by boys in military and boy
Scout uniform, meets with the conformity of petitioners. Of course, there is the other requirement that boys and men with
hats shall salute the flag by placing their hats over the heart, but petitioners and other members of the Jehovah's Witness
could well solve this requirements or avoid it by putting away their hats just as pupils books, may put them away, at
command (Rules and Regulations, Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may be
reduced to their objection to singing the National Anthem and reciting the patriotic pledge.

After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning of this decision,
frankly we find nothing, absolutely nothing, objectionable, even from the point of view of religious belief. The school child or
student is simply made to say that he loves the Philippines because it is the land of his birth and the home of his people;
that because it protects him, in return he will heed the counsel of his parents, obey the rules and regulations of his school,
perform the duties of a patriotic and law-abiding citizen; and serve his country unselfishly and faithly, and that he would be
a true Filipino in thought, in word, and in deed. He is not even made to pledge allegiance to the flag or to the Republic for
which it stands. So that even if we assume for a moment that the flag were an image, connoting religious and veneration
instead of a mere symbol of the State and of national unity, the religious scruples of appellants against bowing to and
venerating an image are not interfered with or otherwise jeopardized.

And as to the singing of the National Anthem, which we reproduce below:

37
Land of the morning,
Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.

the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of suffering and dying
for it. It does not even speak of resorting to force and engaging in military service or duty to defend the country, which
service might meet with objection on the part of conscientious objectors. Surely, petitioners do not disclaim or disavow
these noble and sacred feelings of patriotism, respect, even veneration for the flag and love of coutnry for which the flag
stands.

Men may differ and do differ on religous beliefs and creeds, government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and
patriotism, they can hardly afford to differ, for these are matters in which they are mutually and viatlly interested, for to
them, they mean national existence and survival as a nation or national extinction.

In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their failure or refusal
to obey school regulations about the flag salute they were not being persecuted. Neither were they being criminally
prosecuted under threat of penal sacntion. If they chose not to obey the flag salute regulation, they merely lost the benefits
of public education being maintained at the expense of their fellow citizens, nothing more. According to a popular
expression, they could take it or leave it. Having elected not to comply with the regulations about the flag salute, they
forfeited their right to attend public schools.

In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the present case,
appellants therein were taxpayers and citizens of the United States and of California. The University of California received
endowment and support from the State legislature under certain conditions such as that any resident of California of the
age of 14 years or upward of approved moral character shall have the right to enter the University as a student and receive
instructions therein. The University as part of its cirriculum and instruction required military science and tactics in the
Reserve Officers Training Corps. Appellants conformed to all requirements of the University except taking the course in
military science and tactics and for this the regents of the University suspended them. Appellants were members of the
Methodist Espiscopal Church and of the Epworth League. For many years their fathers have been ordained ministers of
that church. They believed that war and preparation for war is a violation of their religious belief. In other words, they were
conscientious objectors to war. They believed that war, training for war, and military training were immoral, wrong and
contrary to the letter and spirit of the teaching of God and precepts of the Christian religion. They petitioned for exemption
from the military science and tactics course but the regents refused to make military training optional or to exempt them
and they were suspended. So they initiated court action with a California Supreme Court to compel the regents of the
University to admit them. In that action they assailed the validity of the State law providing for military training in the

38
University. The petition was denied by the State Supreme Court. In affirming the decision of the State Supreme Court, the
Supreme Court of the United States held that:

. . . California has not drafted or called them to attend the University. They are seeking education offered by the State and
at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs
and consicientious objections to war, preparation for war and military education. Taken on the basis of the facts alleged in
the petition, appellants' contentions amount to no more than an assertion that the due process clause of the Fourtheenth
Amendment as a safeguard of liberty' confers the right to be students in the state university free from obligation to take
military training as one of the conditions of attendance.

Viewed in the light of our decisions that proposition must at once be put aside as untenable . . .

In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later naturalization case, the applicant was
unwilling, because of conscientious objections, to take unqualifiedly the statutory oath of allegiance which contains this
statement: "That he will support and defend the constitution and laws of the United States against all enemies, foreign and
domestic, and bear true faith and allegiance to the same." U.S.C. title 8, Sec. 381. His petition stated that he was willing if
necessary to take up arms in defense of this country, "but I should want to be free to judge of the necessity." In
amplification he said: "I do not undertake to support "my country, right or wrong" in any dispute which may arise, and I am
not willing to poromise beforehand, and without knowing the cause for which my country may go to war, either that I will or
that I will not "take up arms in defense of this country," however "necessary" the war may seem to be to the government of
the day." The opinion of this court quotes from petitioner's brief a statement to the effect that it is a fixed principle of our
Constitution, zealously guarded by our laws, that a citizen cannot be forced and need not bear arms in a war if he has
conscientious religious scruples against doing so." And, referring to that part of the argument in behalf of the applicant this
court said (p. 623): "This, if it means what it seems to say, is an astonishing statement. Of course, there is no such
principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in
obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the
policy of Congress thus to relieve him . . . The previlege of the native-born conscientious objector to avoid bearing arms
comes not from the Constitution but from the acts of Congress. That body may grant or withhold the exemption as in its
wisdom it sees fit; and if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No
other conclusion is compatible with the well-nigh limitless extent of the war power as above illustrated, which include by
necessary implication, the power, inthe last extremity, to compel armed serviced of any citizen in the land, without regard to
his objections or his views in respect of the justice or morality of the particular war or of war in general. In Jacobson v.
Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann. Cas, 765, this Court (upholding a state
compulsory vaccination law) speaking of the liberties guaranteed to the individual by the Fourteenth Amendment, said: "...
and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his
pecuniary intersts, or even his religious or political convictions, to take his place in the ranks of the army of his country and
risk the chance of being shot down in its defense.

And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now before us, decided against
the contention of a student in the University of Maryland who on conscientious grounds objected to military training there
required. His appeal to this Court was dismissed for the want of a substantial federal questions. 290 U.S. 597, 78 L. ed.
525, 54 S. Ct. 131.

Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students under the age of
twenty-four as a condition of their enrollment to take the prescribed instruction in military science and tactics, transgresses
any constitutional right asserted by these appellants.

Mr. Justice Cardozo in his concurring opinion said:

I assume for present purposes that religious liberty protected by the First Amendment against invasion by the nation is
protected by the Fourteenth Amendment against invasion by the states.

Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the free exercise" of
religion as the phrase was understood by the foundrs of hte nation, and by the generations that have followed. Davis vs.
Beasin, 133 U.S. 333, 342, 33 L. ed. 637, 10 s.Ct. 299.

39
There is no occasion at this time to mark the limits of governmental power in the exaction of military service when the
nation is at peace. The petitioners have not been required to bear arms for any hostile purpose, offensive or defensive,
either now or in the future. They have not even been required in any absolute or peremptory way to join courses of
instruction that will fit them to bear arms. If they elect to resort to an institution for higher education maintained with the
state's moneys, then they are comanded to follow courses of instruction believed by the state to be vital to its welfare. This
may be condemned by some unwise or illiberal or unfair when there is violence to conscientious scruples, either religious
or merely ethical. More must be shown to set the ordinance at naught. In controversies of this order courts do not concern
themselves with matters of legislative policy, unrelated to privileges or liberties secured by the organic law. The first
Amendment, if it be read into the Fourteenth, makes invalid any state law `respecting an establishment of religion or
prohibiting the free exercise thereof.' Instruction in military science is not instruction in the practice or tenets of a religion.
Neither directly nor indirectly is government establishing a state religion when it insists upon such training. Instruction in
military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free
exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of
peace and war . . .

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector,
if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for
defense, or in furtherance of any other end, condemned by his conscience as irreligious or immoral. The right of private
judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is
a martyr to a principle—which may turn out in the end to be a delusion or an error—does not prove by his martyrdom that
he has kept within the law."

We are not unmindful of the decision of the United States Federal Supreme Court on similar set of facts. In the case of
Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah Witnesses children were expelled from
the public school of Minersville for refusing to salute the national flag in accordance with the regulations poromulgated by
the school board for the daily flag ceremony. Their father Gobitsi on behalf of his two children and in his own behalf
brought suit to enjoin the school authorities from continuing to exact the execution of the flag ceremony as a condition of
his children's admittance in school. After trial, the District Court gave him relief and this decree was affirmed by the Circuit
Court of Appeals. On appeal to the Federal Supreme Court, the decrees of both the District Court and the Circuit Court of
Appeals were reversed with the lone dissent of Chief Justice Stone, on the ground that the requirement of participation of
all pupils in the public schools in the flag ceremony did not infringe the due process law and liberty guaranteed by the
Constitution, particularly the one referring to religious freedom and belief. Three years later, that is, on June 14, 1943, the
ruling laid down in the Minersville School District vs. Gobitis case, was in the case of West Virginia State Board of
Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply divided court, the majority opinion being penned by Mr.
Justice Jackson in which Justice Black, Douglas and Murphy concurred; while Mr. Justice Frankfurter who wrote the
opinion in the Gobitis case, filed a long dissenting opinion, and Justices Roberts and Reed adhered to the views expressed
in the Gobitis case.

Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to criticize the doctrine of
the West Virginia vs. Barnette case, frankly, we are more inclined to favor the former as more in keeping with the spirit of
our Constitution and the government policy as laid down in Republic Act No. 1265 entitles "An Act Making Flag Ceremony
Compulsory In All Educational Institutions".

We cannot help thinking that one reason that may have possibly influenced the decision in the West Virginia State Board of
Education vs. Barnette case, was that the children involved in said case and their parents found themselves in a serious
dilemma for refusing to salute the flag as required by the regulations of the School Board. They were expelled by the
School Board and their absence was considered unlawful and because of the law of compulsory school atendance of all
children of school age, they were considered as truants and the school officials threatened to send them to reformatories
maintained for criminially inclinded juveniles. Parents of such children have been prosecuted or were threatened with
prosecution for cause such as alleged delinquency and if convicted, were subject to fine not exceeding $50.00 and a jail
term not exceeding 30 days. That is why in the majority opinion it was stated:

. . . The sole conflict is between authority and rights of the individual. The state asserts power to conditions access to
public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both
parent and child . . .
40
Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have a law (Republic Act
896) requiring compulsory enrollment of children of shcool age, but said law contains so many exceptions and exemptions
that it can be said that a child of school age is very seldom compelled to attend school, let alone the fact that almost
invariably, there is school crisis every year wherein the pupils applying for admission in public schools could not be
accommodated, and what is equally important is that there is no punishment or penal sanction either for the pupil who fail
to attend school or is expelled for failure to comply with school regulations such as the compulsory flag salute ceremony, or
his parents.

In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the decision in the case of
West Virginia, the Supreme Court of the United States affirmed a decision of the Illinois Supreme Court refusing admission
of petitioner Clyde Wilson Summers to the Illinois Bar. Summers had complied with tall the prerequisites to admission to
the Bar of that state, but he was a conscientious objector who did not believe in the use of force or war because of his
religious belief. He described this attitude of his as follows:

The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament too seriously.
Instead of merely reading or preaching the Sermon on the Mount, he tries to practice it. The only fault of the petitioner
consists in his attempt to act as a good Christian in accordance with his interpreation of the Bible, and according to the
dictates of his conscience. We respectfully submit that the profession of law does nt shut its gates to persons who have
qualified in all other respects even when they follow in the footsteps of that Great Teacher of mankind who delivered the
Sermon on the Mount. We respectfully submit that under our Constitutional guarantees even good Christians who have
met all the requirements for the admission to the bar may be admitted to practice law

The Constitution of Illinois required service in the militia in time of war of men of petitioner's age group. The Federal
Supreme Court defined the position of Summers as a conscientious objector in the following words:

. . . without detailing petitioner's testimony before the Committee or his subsequent statments in the record, his position
may be compendiously stated as one of non-violence. Petitioner will not serve in the armed forces. While he recognizes a
difference between the military and police forces, he would not act in the latter to coerce threatened violations. Petitioner
would not use force to meet aggression against himself or his family, no matter how aggravated or whether or not carrying
a danger of bodily harm to himself or others. He is a believer in passive resistance. We need to consider only his attitude
toward service in the armed forces.

It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious belief. In affirming the
decision of the Illinois Supreme Court excluding Summers from the practice of law in that state, the Federal Supreme Court
held that the action of the State Supreme Court did not violate the principle of religious freedom contained in the
Constitution.

If a man lived, say on an island, alone and all by himself without neighbors, he would normally have complete and absolute
rights as to the way he lives, his religion, incuding the manners he practices his religious beliefs. There would be no laws to
obey, no rules and regulations to follow. He would be subject only to Nature's physical laws. But man iis gregarious by
nature and instinct and he gravitates toward community life, to receive and enjoy the benefits of society and of social and
political organization. The moment he does this and he becomes a member of a community or nation, he has to give rights
for the benefit of his fellow citizens and for the general welfare, just as his fellow men and companions also agree to a
limitation of their rights in his favor. So, with his religion. He may retain retain his freedom or religious belief, but as to
practising the same, he would have to give up some of those practices repugnant to the general welfare and subordinate
them to the laws and sovereignty of the State. In order words, the practice of religion or religious belief is subject to
reasonable and non-discrminatory laws and regulations by the state.

In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme Court affirmed a
decision convicting Sarah Prince of a violation of the Child Labor Law of Massachusetts. Mr. Justice Rutledge who wrote
the opinion tersely described the case thus:

The case brings for review another episode in the conflict between Jehovah's Witneses and state authority. This time
Sarah Prince appeals from convictions for violating Massachusetts' child labor laws, by acts said to be a rightful exercise of
her religious convictions.

41
When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a girl nine years of age. . . .
(Emphasis supplied)

The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to distribute religious
pamphlets intended to propagate the religion of Johovah Wiitness. The question involved was whether or not the law in
question contravened the Fourtheenth Amendment by denying appellant freedom of religion and denying to her the equal
protection of the law. Defendant claimed that the child was exercising her God given right and her constitutional right to
preach the gospel and that no preacher of God's commands shold be interfered with. She rested her case squarely on
freedom of religion. In affirming the judgment of conviction and upholding the law as agains the claiim of relgion and the
exercise of religious belief, the court said:

. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to guard the general interest in
youth's well-being, the state as parens patriae may restrict the parent's control by requiring shcool attendance, regulating
or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his
claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory
vaccination for the child more than for himself on relgious grounds. The right to practice religion freely does not include
liberty to expose the community or the child to communicable disease or the latter to ill health or death. . . . It is too late
now to doubt that legislation appropriately designed to reach such evils is withinthe state's police power, whether against
the parent's claim to control of the child or one that religious scruples dictate contrary action.

Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not imposing a
religion or religious belief or a religious test on said students. It was merely enforcing a non-discriminatory school
regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State was merely
carrying out the duty imposed upon it by the Constitution which charges it with supervision over and regulation of all
educational institutions, to establish and maintain a complete and adequate system of public education, and see to it that
all schools aim to develop among other things, civic conscience and teach the duties of citizenship. (Art. XIV, section 5 of
the Constitution). It does nothing more than try to inculcate in the minds of the school population during the formative
period of their life, love of country and love of the flag, all of which make for united and patriotic citizenry, so that later in
after years they may be ready and willing to serve, fight, even die for it. It is well known that whatever is taught to the youth
during this period, such as love of God, of parents, respect for elders, love of the truth, loyalty, honoring one's word and
respecting the rights of other, becomes a habit or second nature that will remain with them always. School children of
kingdoms and empires are taught early to respect and love the king or the emperor for these rulers and sovereigns
symbolize the nation, and the children as future citizens or subjects will come to love their country.

Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly but they do "question
the attempt to compel conscientious objectors guided by the word of God to salute the flag or participate in the ceremony
to specific commandment of Jehovah God. It is perfectly proper and lawful for one nt bound by a covenant with Jehovah to
salute the flag when that person desires to salute it. It is entirely wrong to interfere with that right or prevent such one from
saluting the flag. Conversely, it is also true that it is wrong and illegal to compel one who, for concience' sake, cannot
participate in the ceremony." (p. 85, Appellant's Brief)

The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they have no valid
right to such exemption is that the latter would disrupt shcool discipline and demoralize the rest of the school population
which by far constitutes the great majority. If the children of Jehovah Witnesses are exempted, then the other pupils,
especially the young ones seeing no reason for such exemption, would naturlly ask for the same privilege because they
might want to do something else such as play or study, instead of standing at attention saluting the flag and singing the
national anthem and reciting the patriotic pledge, all of which consume considerable time; and if to avoid odions
discrimination this exemption is extended to others, then the flag ceremony would soon be a thing of the past or perhaps
conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in
and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism — a pathetic,
even tragic situation, and all because a small portion of the shcool population imposed its will, demanded and was granted
an exemption. In a way that might be regarded as tyranny of the minority, and a small minority at that.

42
In a few cases, such exemptions in a limited way have been afforded members of a religious group. Conscientious
objectors in the United States who because of their religion were unwilling to serve in the war particularly as regards actual
fighting or field duty, were allowed to do some work in relation to the war, but not involving combat duty or the use of force.
But that was by special legislation. If that is possible here as regards exemption from participation in the flag ceremony,
then petitioners would have to look to the Legislature, not the courts for relief.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption form or non-
compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority. As
was said by Mr. Justice Frankfurter in h is dissent in West Virginia vs. Barnette, supra:

The constitutional protection of religious freedom ... gave religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be
exercised without hindrance from the State, not the State may not exercise that which except by leave of religious loyalties
is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws
conscientiously deemed for the public good by those whose business it is to make laws. (West Virginia State Board vs.
Barnette, supra, at p. 653; emphasis supplied)

In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration; rather it is symbol of
the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is nt a
religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag
stands for; that by authority of the legislature, the Secretary of Education was duly authorized to promulgate Department
Order No. 8, series of 1955; that the requirement of observance of the flag ceremony or salute provided for in said
Department Order No. 8, does not violate the Constitutional provision about freedom of religion and exercise of religion;
that compliance with the non-discriminatory and reasonable rules and regulations and school disicipline, including
observance of the flag ceremony is a prerequisite to attendance in public schools; and that for failure and refusal to
participate in the flag ceremony, petitioners were properly excluded and dismissed from the public shcool they were
attending.

In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction heretofore issued is ordered
dissolved. No costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador and Endencia, JJ., concur.

Separate Opinions

BARRERA, J., concurring:

I am in substantial accord with teh well-thought and well-expressed opinion of Mr. Justice Montemayor.

As much reliacne has been place by appellants on the Barnette case decided by the Supreme Court of the United States
(West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 87 L. ed. 1628), two fundamental features
distinguishing that case from the one before us, bear some stressing.

The underlying and, I belive, compelling consideration that impelled the majority in the Barnette case to overrule the
Gobitis decision (Minersville School District vs. Gobitis, 310 U.S. 586, 84 L. ed 1375) was the compulsory nature of the
order of the State Board of Education making non-compliance therewith virtually unlawful in the sense that under the West
Virginia Code, upon expulsion of the disobeying pupil, his parents or guardian become liable to criminal prosecution 1 for
such absence due to expulsion and if convicted are subjected to fine not exceeding $50 and jail term not exceeding thirty
days.2 The delinquent pupil may be proceeded against and sent to reformatories maintained for ciminally inclined
juveniles.3 Hence, the Court treated the case as one where "the sole conflict is between authority and rights of the
individual. The State asserts power to condition access to public education on making a prescribed sign and profession,
and at the same time to coerce attendance (in school) by punishing both parent and child". As thus presented, really the
conflict there between authority and liberty become deeply sharpened and has attained the proportion of repugnance to a
degree that left no choice to the Court except to apply the rationale of the grave-and-imminent-danger rule and to enjoin,
under the circumstances, the enforcement of the West Virginia School Regulation.

43
Fortunately the problem the instant case presents to us is unaccompanied by such dire consequences. Non-compliance
with our prescribed flag ceremony does not result in criminal prosecution either of the pupil or of the parent. All that the
unwilling pupil suffers is inability to continue his studies in a public school. If this and nothing else is the consequence, as it
presently appears to be the complaint of appellants in this case, then I perceive no clear offense is done to the
Constitution.

One other significant distinction between the Barnette case and the one before us is the substnatial difference in the
manner the flag salute is to be executed under the two laws, and of course, the varying reaction and attitude taken by the
Jehovah's Witnesses in relation thereto. In West Virginia, the law requires the "Stiff-arm" salute, the saluter to keep the
right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States
of America and to the Republic for which it stands; one Nations, indivisible with liberty and justice for all." The Jehovah's
Witnesses considered this posture of raising the hand at the same time reciting the pledge as an act of obeisance contrary
to their religious beliefs.

Here, what is required of all persons present during the flag ceremony is to stand at attention while the flag is being raise d
and the National Anthem is being played or sung. Boys and men with hats shall place the hat over the heart. Those without
hats may stand with their arms and hands down and straight at the sides. Those in military or Boy Scout uniform shall give
the salute prescribed by their regulations.

Appellants here have manifested through counsel, both in their brief and, I understand, in the course of the oral argument,
that they do not object to this requirement of standing at attention with their arms and hands down and straight at the sides.
Consequently, there seems to be no irreconciliable fundamental conflict, except perhaps as regards the singing of the
National Anthem and the recital (unaccompanied by any particular physical position) of the patriotic pledge near the close
of the ceremony. As to the import of the National Anthem and the Patriotic Pledge, I can add nothing to the very sober and
well-considered opinion of Justice Montemayor.

As I see the issuance, disentangled as it should and could be from the stress and strain of counsels' doctrinal discussion
and argumentation on the fundamentals of the freedom of religion about which there could be no serious disagreement,
and if viewed and interpreted rationally — in a spirit of harmony, goodwill and in keeping with an appropriate sense of
nationalism — I find no reasonable consideration making the flag ceremony executed in the manner prescribed by the
questioned Department order and regulation, clearly repugnant to the Constitution.

_________________________________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO, represented by
their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. &
MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO
OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO;
NAPTHALE TANACAO, represented by his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented
by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. &
MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO
ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE;
LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY
MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA,
44
represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA, represented by their
parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his parents, MR. & MRS.
PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father
RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG;
EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their parents MR. & MRS.
VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON
TABLASON & MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT ALSADO &
RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA ALSADO, REU
ALSADO & LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE
NAPOLES, represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES,
represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her
parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL
ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO
DEMOTOR; JURELL VILLA & MELONEY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA;
JONELL HOPE MAHINAY, MARY GRACE MAHINAY and MAGDALENE MAHINAY, represented by their parents MR.
& MRS. FELIX MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and
VEVENCIA TURNO; SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented
by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise
essentially the same issue: whether school children who are members or a religious sect known as Jehovah's
Witnesses may be expelled from school (both public and private), for refusing, on account of their religious
beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the Philippine national
anthem, saluting the Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog,
Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan
Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents who
belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in
the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan,"
the petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose
parents are Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No.
1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture
and Sports (DECS) making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265
provides:
45
Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be simple and
dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and
regulations for the proper conduct of the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with rules and
regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the educational
institution concerned and its head to public censure as an administrative punishment which shall be published at
least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by this Act, the Secretary of
Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of the private
educational institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day
throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-staff must be straight, slightly
and gently tapering at the end, and of such height as would give the Flag a commanding position in front of the
building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning except when it
is raining, in which event the ceremony may be conducted indoors in the best way possible. A retreat shall be
held in the afternoon of the same day. The flag-raising ceremony in the morning shall be conducted in the
following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises shall assemble in
formation facing the flag. At command, books shall be put away or held in the left hand and everybody shall come
to attention. Those with hats shall uncover. No one shall enter or leave the school grounds during the ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by the school band alone. At the first note of the
Anthem, the flag shall be raised briskly. While the flag is being raised, all persons present shall stand at attention
and execute a salute. Boys and men with hats shall salute by placing the hat over the heart. Those without hat
may stand with their arms and hands down and straight at the sides. Those in military or Boy Scout uniform shall
give the salute prescribed by their regulations. The salute shall be started as the Flag rises, and completed upon
last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the ceremony to a close. This is required of all public
schools and of private schools which are intended for Filipino students or whose population is predominantly
Filipino.

English Version

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;

46
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the
patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they
"cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's
command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo).
They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect
against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from
school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this
Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959)
and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the
expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under
a system of complete separation of church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag salute is no more a religious
ceremony than the taking of an oath of office by a public official or by a candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education is not
imposing a religion or religious belief or a religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's
Witness. The State is merely carrying out the duty imposed upon it by the Constitution which charges it with
supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate
system of public education, and see to it that all schools aim to develop, among other things, civic conscience
and teach the duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have no
valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and
demoralize the rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-
compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to promulgate said
Department Order, and its provisions requiring the observance of the flag salute, not being a religious ceremony
but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for,
does not violate the constitutional provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et
al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives
legislative cachet to the ruling in Gerona, thus:

47
5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be dismissed after
due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new
Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the
DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the
Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine
national anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division
Superintendent, recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated November
17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals and Heads of
Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and school
employees in public schools who refuse to salute the Philippine flag or participate in the daily flag ceremony
because of some religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No. 8, Series of 1955
(Implementing Rules and Regulations) but also strikes at the heart of the DECS sustained effort to inculcate
patriotism and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is not in any manner whatever a
justification for not saluting the Philippine flag or not participating in flag ceremony. Thus, the Supreme Court of
the Philippine says:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and freedom and liberty which it and the Constitution guarantee and protect. (Gerona,
et al. vs. Sec. of Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the
exercise of said religious belief clashes with the established institutions of society and with the law, then the
former must yield and give way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate in the daily flag ceremony or to
obey the flag salute regulation spelled out in Department Order No. 8, Series of 1955, shall be considered removed
from the service after due process.

6. In strong language about pupils and students who do the same the Supreme Court has this to say:

If they choose not to obey the flag salute regulation, they merely lost the benefits of public education being
maintained at the expense of their fellow Citizens, nothing more. According to a popular expression, they could
take it or leave it! Having elected not to comply with the regulation about the flag salute they forfeited their right to
attend public schools. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those who choose not to participate in
flag ceremony or salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the
memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in
the Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of
the song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rolloof G.R. No. 95770).

48
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's
Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2, 1990 and
yesterday due to their firm stand not to salute the flag of the Republic of the Philippines during Flag Ceremony
and other occasions, as mandated by law specifically Republic Act No. 1265, this Office hereby orders the
dropping from the list in the School Register (BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I
up to Grade VI effective today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17, 1989 by virtue of
Department Order No. 8 s. 1955 dated July 21, 1955 in accordance with Republic Act No. 1265 and Supreme Court
Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable Secretary of Education, et
al., Respondents and Appellees' dated August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls"
of students who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that
"they forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School with the information
that this office is sad to order the dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which is against the Flag Salute
Law (R.A. 1265) and DECS Order No. 8, series of 1955, having elected not to comply with the regulation about the
flag salute they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of Education, et al., 106
Philippines 15). However, should they change their mind to respect and follow the Flag Salute Law they may be re-
accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School,
Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School,
Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School,
San Juan Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then
Acting Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the
Secretary of Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina,
who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of
his predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions for Mandamus, Certiorari and
Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave
abuse of discretion — (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

49
i. declaring null and void the expulsion or dropping from the rolls of herein petitioners from their respective
schools;

ii. prohibiting and enjoining respondent from further barring the petitioners from their classes or otherwise
implementing the expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to admit and order the re-admission of petitioners to
their respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining
the respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory
injunction commanding the respondents to immediately re-admit the petitioners to their respective classes until
further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be
impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the
expulsion orders issued by the public respondents on the grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school children and
consequently disloyal and mutant Filipino citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the DECS' rules and
regulations on the flag salute ceremonies are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of country, for
which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful regulations in question do not warrant
exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of their
own self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and jurisprudence.

6. State's power to regulate repressive and unlawful religious practices justified, besides having scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No. 292 (The
Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute
law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in
the Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that
one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag
ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience
of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV,
Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).

50
The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on
one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that affect the public welfare (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage
in "external acts" or behavior that would offend their countrymen who believe in expressing their love of country
through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show
their respect for the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R.
No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no
warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late
Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the time
will come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag
and love of country, admiration for national heroes, and patriotism — a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was granted an exemption.
(Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a
"small portion of the school population" will shake up our part of the globe and suddenly produce a nation
"untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and
admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism,
respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and
spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs,
will hardly be conducive to love of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But
freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The
test of its substance is the right to differ as to things that touch the heart of the existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming that such unity
and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67
L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the

51
State to "protect and promote the right of all citizens to quality education . . . and to make such education
accessible to all (Sec. 1, Art. XIV).

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the
Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any labor group:

. . . It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws
conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of
the flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their religion, "this should not be taken to mean that
school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that
offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the
flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the
patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave and present
danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that
the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944
when every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and
bowed before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history,
they would not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own flag
was proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride and joy
over the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the
Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our
country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public
respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order
which was issued by this Court is hereby made permanent.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ.,
concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.

_________________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

52
G.R. No. 95770 December 29, 1995

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, MR. & MRS. LEONARDO EBRALINAG,
JUSTINIANA TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL OYAO, represented by
their parents MR. & MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. &
MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS.
FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO,
NAPTHALE TUNACAO represented by his parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented by
her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. &
MRS. HERMINIGILDO ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO
ALFAR, MARTINO VILLAR, represented by their parents MR. & MRS. GENARO VILLAR, PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented by his
parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE represented by her parents MR. & MRS. RENE LAUDE,
LEOREMINDA MONARES represented by her parents MR. & MRS. FLORENCIO MONARES, MERCY MONTECILLO,
represented by her parents MR. & MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by his parent
ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA represented by their parents MR. & MRS. ALBERTO
TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & MRS. PAQUITO EBRALINAG, JUTA CUMON,
GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON, EVIE LUMAKANG and
JUAN LUMAKANG, represented by their parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR
SARSOZO, & IGNA MARIE SARSOZO represented by their parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL
JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH, EMERSON TABLASON & MASTERLOU
TABLASON, represented by their parents EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F. BIONGCOG, Cebu District
Supervisor, respondents.

G.R. No. 95887 December 29, 1995

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT ALSADO, &
RUDYARD ALSADO represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA ALSADO, REU
ALSADO and LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO, SUZETTE
NAPOLES, represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA CARMELOTES,
represented by her parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by her
parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL
ALSADO, RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO
DEMOTOR, JURELL VILLA and MELONY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA,
JONELL HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE MAHINAY, represented by their parents
MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE
ANTIOLA and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and
VEVENCIA TURNO, SOLOMON PALATULON, SALMERO PALATULON and ROSALINA PALATULON, represented
by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A. SANGUTAN, respondents.

R E SO L U T I O N

KAPUNAN, J.:

The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition
for certiorari and prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that
the said decision created an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation
of the "Establishment Clause" of the Constitution. The Solicitor General, on behalf of the public respondent, furthermore
contends that:
53
The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect even on the
basis of a claim of religious freedom may be criticized as granting preference to the religious beliefs of said sect in violation
of the "non-establishment guarantee" provision of the Constitution. Surely, the decision of the Court constitutes a special
favor which immunizes religious believers such as Jehovah's Witnesses to the law and the DECS rules and regulations by
interposing the claim that the conduct required by law and the rules and regulation (sic) are violative of their religious
beliefs. The decision therefore is susceptible to the very criticism that the grant of exemption is a violation of the "non-
establishment" provision of the Constitution.

Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the "equal protection
of the laws" clause in respect of the non-exempt, and, in public schools, a collision course with the "non-establishment
guarantee."

Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona
declaring the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of
religious belief but regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at
bench are constitutional and legal obligations to implement the law and the constitutional mandate to inculcate in the youth
patriotism and nationalism and to encourage their involvement in public and civic affairs, referring to the test devised by the
United States Supreme Court in U.S. vs. O'Brien.1

II

All the petitioners in the original case2 were minor school children, and members of the sect, Jehovah's Witnesses
(assisted by their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11,
1955 and by Department Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at
private educational institutions which did not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all
educational institutions for failure or refusal to observe the flag ceremony with public censure on first offense and
cancellation of the recognition or permit on second offense.

The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the
same. Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the
Jehovah's Witnesses from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these
expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of Education3 held that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national
unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the
complete separation of church and state in our system of government, the flag is utterly devoid of any religious
significance. Saluting the flag consequently does not involve any religious ceremony. . . .

After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be
left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and
misunderstanding for there might be as many interpretations and meanings to be given to a certain ritual or ceremony as
there are religious groups or sects or followers.

Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human
rights," this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu4 re-examined our over two decades-old
decision in Gerona and reversed expulsion orders made by the public respondents therein as violative of both the free
exercise of religion clause and the right of citizens to education under the 1987 Constitution.5

From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove
stated. After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original
decision, however, we find no cogent reason to disturb our earlier ruling.

The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and
are equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in
their house to house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol
54
which smacks of idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against
worshipping forms or idols other than God himself. The basic assumption in their universal refusal to salute the flags of the
countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law. This
assumption, while "bizarre" to others is firmly anchored in several biblical passages. 6

And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts)
which they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for
the symbols of the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens,
they have an excellent record as law abiding members of society even if they do not demonstrate their refusal to conform
to the assailed orders by overt acts of conformity. On the contrary, they aver that they show their respect through less
demonstrative methods manifesting their allegiance, by their simple obedience to the country's laws,7 by not engaging in
antigovernment activities of any kind,8 and by paying their taxes and dues to society as self-sufficient members of the
community.9 While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their
side, in order not to disrupt the ceremony or disturb those who believe differently. 10

The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as
odd and different and at divergence with the complex requirements of contemporary societies, particularly those societies
which require certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced
loyalty and unity are mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to
majoritarian standards,"11 is seductive to the bureaucratic mindset as a shortcut to patriotism.

No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the
youth the values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching
of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those
principles which would mold them into responsible and productive members of our society. However, the government's
interest in molding the young into patriotic and civic spirited citizens is "not totally free from a balancing process" 12 when it
intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional
right to education and the unassailable interest of parents to guide the religious upbringing of their children in accordance
with the dictates of their conscience and their sincere religious beliefs. 13 Recognizing these values, Justice Carolina Grino-
Aquino, the writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of Rights
would find abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag sing the national anthem
and recite the patriotic pledge during a flag ceremony.14 "This coercion of conscience has no place in a free society".15

The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand
apart.16 In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule,
not the exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate
the status of a preferred freedom and to relegate it to the level of an abstract principle devoid of any substance and
meaning in the lives of those for whom the protection is addressed. As to the contention that the exemption accorded by
our decision benefits a privileged few, it is enough to re-emphasize that "the constitutional protection of religious freedom
terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity."17 The essence of the
free exercise clause is freedom from conformity to religious dogma, not freedom from conformity to law because of
religious dogma.18 Moreover, the suggestion implicit in the State's pleadings to the effect that the flag ceremony
requirement would be equally and evenly applied to all citizens regardless of sect or religion and does not thereby
discriminate against any particular sect or denomination escapes the fact that "[a] regulation, neutral on its face, may in its
application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free
exercise of religion."19

III

The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally
related to petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect
to salute the flag or participate actively in flag ceremonies on religious grounds.20 Where the governmental interest clearly
appears to be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of
expression, this Court will not find it difficult to sustain a regulation. However, regulations involving this area are generally
held against the most exacting standards, and the zone of protection accorded by the Constitution cannot be violated,
55
except upon a showing of a clear and present danger of a substantive evil which the state has a right to protect. 21 Stated
differently, in the case of a regulation which appears to abridge a right to which the fundamental law accords high
significance it is the regulation, not the act (or refusal to act), which is the exception and which requires the court's strictest
scrutiny. In the case at bench, the government has not shown that refusal to do the acts of conformity exacted by the
assailed orders, which respondents point out attained legislative cachet in the Administrative Code of 1987, would pose a
clear and present danger of a danger so serious and imminent, that it would prompt legitimate State intervention.

In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in
preserving the fag as a symbol of nationhood and national unity was an interest related to the suppression of free
expression . . . because the State's concern with protecting the flag's symbolic meaning is implicated only when a person's
treatment of the flag communicates some message. 22 While the very concept of ordered liberty precludes this Court from
allowing every individual to subjectively define his own standards on matters of conformity in which society, as a whole has
important interests, the records of the case and the long history of flag salute cases abundantly supports the religious
quality of the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious
symbol is well-founded and well-documented and is based on grounds religious principle. The message conveyed by their
refusal to participate in the flag ceremony is religious, shared by the entire community of Jehovah's Witnesses and is
intimately related to their theocratic beliefs and convictions. The subsequent expulsion of members of the sect on the basis
of the regulations assailed in the original petitions was therefore clearly directed against religious practice. It is obvious that
the assailed orders and memoranda would gravely endanger the free exercise of the religious beliefs of the members of
the sect and their minor children.

Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended
to stifle the expression of
the belief that an act of saluting the flag might sometimes be — to some individuals — so offensive as to be worth their
giving up another constitutional right — the right to education. Individuals or groups of individuals get from a symbol the
meaning they put to it.23 Compelling members of a religious sect to believe otherwise on the pain of denying minor children
the right to an education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are
best instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to
inspire the opposite. The methods utilized to impose them breed resentment and dissent. Those who attempt to coerce
uniformity of sentiment soon find out that the only path towards achieving unity is by way of suppressing dissent. 24 In the
end, such attempts only find the "unanimity of the graveyard."25

To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious
symbolic meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the
contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling patriotism
among the youth. While conceding to the idea — adverted to by the Solicitor General — that certain methods of religious
expression may be prohibited26 to serve legitimate societal purposes, refusal to participate in the flag ceremony hardly
constitutes a form of religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth
repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect militates against
the extreme disciplinary methods undertaken by school authorities in trying to enforce regulations designed to compel
attendance in flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with or
deny the rights of other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes
a danger so grave and imminent as to warrant the state's intervention.

Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment
that "a government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the
government (and) furthers an important and substantial government interest" 27 misses the whole point of the test devised
by the United States Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating
that "the government interest (should be) unrelated to the suppression of free expression." We have already stated that the
interest in regulation in the case at bench was clearly related to the suppression of an expression directly connected with
the freedom of religion and that respondents have not shown to our satisfaction that the restriction was prompted by a
compelling interest in public order which the state has a right to protect. Moreover, if we were to refer (as respondents did
by referring to the test in O'Brien) to the standards devised by the US Supreme Court in determining the validity or extent of
restrictive regulations impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the

56
standard devised in O'Brien only applies if the State's regulation is not related to communicative conduct. If a relationship
exists, a more demanding standard is applied.28

The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a
responsibility shared by the State with parents and other societal institutions such as religious sects and denominations.
The manner in which such values are demonstrated in a plural society occurs in ways so variable that government cannot
make claims to the exclusivity of its methods of inculcating patriotism so all-encompassing in scope as to leave no room for
appropriate parental or religious influences. Provided that those influences do not pose a clear and present danger of a
substantive evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to the
majority, are the price we pay for the freedoms we enjoy.

WHEREFORE, premises considered, the instant Motion is hereby DENIED.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Francisco and Hermosisima, Jr., JJ., concur.

Panganiban, J., took no part.

Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs. The Division Superintendent of Schools of
Cebu), 1 March 1993, 219 SCRA 276.

____________________________________________________________

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 113105 August 19, 1994

PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and A. GONZALES, petitioners,

vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management; HON. VICENTE T. TAN, as National
Treasurer and COMMISSION ON AUDIT, respondents.

G.R. No. 113174 August 19, 1994

RAUL S. ROCO, as Member of the Philippine Senate, NEPTALI A. GONZALES, Chairman of the Committee on
Finance of the Philippine Senate, and EDGARDO J. ANGARA, as President and Chief Executive of the Philippine
Senate, all of whom also sue as taxpayers, in their own behalf and in representation of Senators HEHERSON
ALVAREZ, AGAPITO A. AQUINO, RODOLFO G. BIAZON, JOSE D. LINA, JR., ERNESTO F. HERRERA, BLAS F.
OPLE, JOHN H. OSMENA, GLORIA MACAPAGAL- ARROYO, VICENTE C. SOTTO III, ARTURO M. TOLENTINO,
FRANCISCO S. TATAD, WIGBERTO E. TAÑADA and FREDDIE N. WEBB, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, and THE NATIONAL
TREASURER, THE COMMISSION ON AUDIT, impleaded herein as an unwilling
co-petitioner, respondents.

G.R. No. 113766 August 19, 1994

WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members of the Senate and as taxpayers, and FREEDOM
FROM DEBT COALITION, petitioners,
vs.

57
HON. TEOFISTO T. GUINGONA, JR. in his capacity as Executive Secretary, HON. SALVADOR ENRIQUEZ, JR., in
his capacity as Secretary of the Department of Budget and Management, HON. CARIDAD VALDEHUESA, in her
capacity as National Treasurer, and THE COMMISSION ON AUDIT, respondents.

G.R. No. 113888 August 19, 1994

WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members of the Senate and as taxpayers, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON. SALVADOR ENRIQUEZ, JR., in
his capacity as Secretary of the Department of Budget and Management, HON. CARIDAD VALDEHUESA, in her
capacity as National Treasurer, and THE COMMISSION ON AUDIT, respondents.

Ramon R. Gonzales for petitioners in G.R. No. 113105.

Eddie Tamondong for petitioners in G.R. Nos. 113766 & 113888.

Roco, Buñag, Kapunan, Migallos & Jardeleza for petitioners Raul S. Roco, Neptali A. Gonzales and Edgardo Angara.

Ceferino Padua Law Office fro intervenor Lawyers Against Monopoly and Poverty (Lamp).

QUIASON, J.:

Once again this Court is called upon to rule on the conflicting claims of authority between the Legislative and the Executive
in the clash of the powers of the purse and the sword. Providing the focus for the contest between the President and the
Congress over control of the national budget are the four cases at bench. Judicial intervention is being sought by a group
of concerned taxpayers on the claim that Congress and the President have impermissibly exceeded their respective
authorities, and by several Senators on the claim that the President has committed grave abuse of discretion or acted
without jurisdiction in the exercise of his veto power.

House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of 1994), was passed and approved by both houses of
Congress on December 17, 1993. As passed, it imposed conditions and limitations on certain items of appropriations in the
proposed budget previously submitted by the President. It also authorized members of Congress to propose and identify
projects in the "pork barrels" allotted to them and to realign their respective operating budgets.

Pursuant to the procedure on the passage and enactment of bills as prescribed by the Constitution, Congress presented
the said bill to the President for consideration and approval.

On December 30, 1993, the President signed the bill into law, and declared the same to have become Republic Act No.
7663, entitled "AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE
PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY ONE, NINETEEN HUNDRED AND NINETY-FOUR, AND
FOR OTHER PURPOSES" (GAA of 1994). On the same day, the President delivered his Presidential Veto Message,
specifying the provisions of the bill he vetoed and on which he imposed certain conditions.

No step was taken in either House of Congress to override the vetoes.

In G.R. No. 113105, the Philippine Constitution Association, Exequiel B. Garcia and Ramon A. Gonzales as taxpayers,
prayed for a writ of prohibition to declare as unconstitutional and void: (a) Article XLI on the Countrywide Development
Fund, the special provision in Article I entitled Realignment of Allocation for Operational Expenses, and Article XLVIII on
the Appropriation for Debt Service or the amount appropriated under said Article XLVIII in excess of the P37.9 Billion
allocated for the Department of Education, Culture and Sports; and (b) the veto of the President of the Special Provision of
Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)

58
In G.R. No. 113174, sixteen members of the Senate led by Senate President Edgardo J. Angara, Senator Neptali A.
Gonzales, the Chairman of the Committee on Finance, and Senator Raul S. Roco, sought the issuance of the writs of
certiorari, prohibition and mandamus against the Executive Secretary, the Secretary of the Department of Budget and
Management, and the National Treasurer.

Suing as members of the Senate and taxpayers, petitioners question: (1) the constitutionality of the conditions imposed by
the President in the items of the GAA of 1994: (a) for the Supreme Court, (b) Commission on Audit (COA), (c)
Ombudsman, (d) Commission on Human Rights (CHR), (e) Citizen Armed Forces Geographical Units (CAFGU'S) and (f)
State Universities and Colleges (SUC's); and (2) the constitutionality of the veto of the special provision in the appropriation
for debt service.

In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto Tañada (a co-petitioner in G.R. No. 113174), together with
the Freedom from Debt Coalition, a non-stock domestic corporation, sought the issuance of the writs of prohibition and
mandamus against the Executive Secretary, the Secretary of the Department of Budget and Management, the National
Treasurer, and the COA.

Petitioners Tañada and Romulo sued as members of the Philippine Senate and taxpayers, while petitioner Freedom from
Debt Coalition sued as a taxpayer. They challenge the constitutionality of the Presidential veto of the special provision in
the appropriations for debt service and the automatic appropriation of funds therefor.

In G.R. No. 11388, Senators Tañada and Romulo sought the issuance of the writs of prohibition and mandamus against
the same respondents in G.R. No. 113766. In this petition, petitioners contest the constitutionality of: (1) the veto on four
special provision added to items in the GAA of 1994 for the Armed Forces of the Philippines (AFP) and the Department of
Public Works and Highways (DPWH); and (2) the conditions imposed by the President in the implementation of certain
appropriations for the CAFGU's, the DPWH, and the National Housing Authority (NHA).

Petitioners also sought the issuance of temporary restraining orders to enjoin respondents Secretary of Budget and
Management, National Treasurer and COA from enforcing the questioned provisions of the GAA of 1994, but the Court
declined to grant said provisional reliefs on the time- honored principle of according the presumption of validity to statutes
and the presumption of regularity to official acts.

In view of the importance and novelty of most of the issues raised in the four petitions, the Court invited former Chief
Justice Enrique M. Fernando and former Associate Justice Irene Cortes to submit their respective memoranda as Amicus
curiae, which they graciously did.

II

Locus Standi

When issues of constitutionality are raised, the Court can exercise its power of judicial review only if the following requisites
are compresent: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case (Luz Farms v. Secretary of the Department of Agrarian Reform, 192
SCRA 51 [1990]; Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; People v. Vera, 65 Phil. 56 [1937]).

While the Solicitor General did not question the locus standi of petitioners in G.R. No. 113105, he claimed that the remedy
of the Senators in the other petitions is political (i.e., to override the vetoes) in effect saying that they do not have the
requisite legal standing to bring the suits.

The legal standing of the Senate, as an institution, was recognized in Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990). In
said case, 23 Senators, comprising the entire membership of the Upper House of Congress, filed a petition to nullify the
presidential veto of Section 55 of the GAA of 1989. The filing of the suit was authorized by Senate Resolution No. 381,
adopted on February 2, 1989, and which reads as follows:

Authorizing and Directing the Committee on Finance to Bring in the Name of the Senate of the Philippines the Proper Suit
with the Supreme Court of the Philippines contesting the Constitutionality of the Veto by the President of Special and

59
General Provisions, particularly Section 55, of the General Appropriation Bill of 1989 (H.B. No. 19186) and For Other
Purposes.

In the United States, the legal standing of a House of Congress to sue has been recognized (United States v. American
Tel. & Tel. Co., 551 F. 2d 384, 391 [1976]; Notes: Congressional Access To The Federal Courts, 90 Harvard Law Review
1632 [1977]).

While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate President and the Chairman of the
Committee on Finance, the suit was not authorized by the Senate itself. Likewise, the petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling resolution for the purpose.

Therefore, the question of the legal standing of petitioners in the three cases becomes a preliminary issue before this Court
can inquire into the validity of the presidential veto and the conditions for the implementation of some items in the GAA of
1994.

We rule that a member of the Senate, and of the House of Representatives for that matter, has the legal standing to
question the validity of a presidential veto or a condition imposed on an item in an appropriation bill.

Where the veto is claimed to have been made without or in excess of the authority vested on the President by the
Constitution, the issue of an impermissible intrusion of the Executive into the domain of the Legislature arises
(Notes: Congressional Standing To Challenge Executive Action, 122 University of Pennsylvania Law Review 1366 [1974]).

To the extent the power of Congress are impaired, so is the power of each member thereof, since his office confers a right
to participate in the exercise of the powers of that institution (Coleman v. Miller, 307 U.S. 433 [1939]; Holtzman v.
Schlesinger, 484 F. 2d 1307 [1973]).

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress (Kennedy v. Jones, 412 F. Supp. 353 [1976]). In such a case, any
member of Congress can have a resort to the courts.

Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:

This is, then, the clearest case of the Senate as a whole or individual Senators as such having a substantial interest in the
question at issue. It could likewise be said that there was the requisite injury to their rights as Senators. It would then be
futile to raise any locus standi issue. Any intrusion into the domain appertaining to the Senate is to be resisted. Similarly, if
the situation were reversed, and it is the Executive Branch that could allege a transgression, its officials could likewise file
the corresponding action. What cannot be denied is that a Senator has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office (Memorandum, p. 14).

It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec. 27 [1]). Said remedy, however, is
available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to
be ultra vires. In the latter case, it becomes the duty of the Court to draw the dividing line where the exercise of executive
power ends and the bounds of legislative jurisdiction begin.

III

G.R. No. 113105

1. Countrywide Development Fund

Article XLI of the GAA of 1994 sets up a Countrywide Development Fund of P2,977,000,000.00 to "be used for
infrastructure, purchase of ambulances and computers and other priority projects and activities and credit facilities to
qualified beneficiaries." Said Article provides:

COUNTRYWIDE DEVELOPMENT FUND

60
For Fund requirements of countrywide
development projects P 2,977,000,000
———————

New Appropriations, by Purpose

Current Operating Expenditures

A. PURPOSE

Personal Maintenance Capital Total

Services and Other Outlays
Operating
Expenses

1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000 P2,977,000,000

TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000 P2,977,000,000

Special Provisions

1. Use and Release of Funds. The amount herein appropriated shall be used for infrastructure, purchase of ambulances
and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and
identified by officials concerned according to the following allocations: Representatives, P12,500,000 each; Senators,
P18,000,000 each; Vice-President, P20,000,000; PROVIDED, That, the said credit facilities shall be constituted as a
revolving fund to be administered by a government financial institution (GFI) as a trust fund for lending operations. Prior
years releases to local government units and national government agencies for this purpose shall be turned over to the
government financial institution which shall be the sole administrator of credit facilities released from this fund.

The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to
the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the
list of projects and activities by the officials concerned.

2. Submission of Quarterly Reports. The Department of Budget and Management shall submit within thirty (30) days after
the end of each quarter a report to the Senate Committee on Finance and the House Committee on Appropriations on the
releases made from this Fund. The report shall include the listing of the projects, locations, implementing agencies and the
endorsing officials (GAA of 1994, p. 1245).

Petitioners claim that the power given to the members of Congress to propose and identify the projects and activities to be
funded by the Countrywide Development Fund is an encroachment by the legislature on executive power, since said power
in an appropriation act in implementation of a law. They argue 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 (Rollo, pp. 78- 86).

Under the Constitution, the spending power called by James Madison as "the power of the purse," belongs to Congress,
subject only to the veto power of the President. The President may propose the budget, but still the final say on the matter
of appropriations is lodged in the Congress.

The power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation
law. It can be as detailed and as broad as Congress wants it to be.

The Countrywide Development Fund is explicit that it shall be used "for infrastructure, purchase of ambulances and
computers and other priority projects and activities and credit facilities to qualified beneficiaries . . ." It was Congress itself
that determined the purposes for the appropriation.

61
Executive function under the Countrywide Development Fund involves implementation of the priority projects specified in
the law.

The authority given to the members of Congress is only to propose and identify projects to be implemented by the
President. Under Article XLI of the GAA of 1994, the President must perforce examine whether the proposals submitted by
the members of Congress fall within the specific items of expenditures for which the Fund was set up, and if qualified, he
next determines whether they are in line with other projects planned for the locality. Thereafter, if the proposed projects
qualify for funding under the Funds, it is the President who shall implement them. In short, the proposals and identifications
made by the members of Congress are merely recommendatory.

The procedure of proposing and identifying by members of Congress of particular projects or activities under Article XLI of
the GAA of 1994 is imaginative as it is innovative.

The Constitution is a framework of a workable government and its interpretation must take into account the complexities,
realities and politics attendant to the operation of the political branches of government. Prior to the GAA of 1991, there was
an uneven allocation of appropriations for the constituents of the members of Congress, with the members close to the
Congressional leadership or who hold cards for "horse-trading," getting more than their less favored colleagues. The
members of Congress also had to reckon with an unsympathetic President, who could exercise his veto power to cancel
from the appropriation bill a pet project of a Representative or Senator.

The Countrywide Development Fund attempts to make equal the unequal. 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.

2. Realignment of Operating Expenses

Under the GAA of 1994, the appropriation for the Senate is P472,000,000.00 of which P464,447,000.00 is appropriated for
current operating expenditures, while the appropriation for the House of Representatives is P1,171,924,000.00 of which
P1,165,297,000.00 is appropriated for current operating expenditures (GAA of 1994, pp. 2, 4, 9, 12).

The 1994 operating expenditures for the Senate are as follows:

Personal Services

Salaries, Permanent 153,347

Salaries/Wage, Contractual/Emergency 6,870
————
Total Salaries and Wages 160,217
=======

Other Compensation

Step Increments 1,073

Honoraria and Commutable Allowances 3,731
Compensation Insurance Premiums 1,579
Pag-I.B.I.G. Contributions 1,184
Medicare Premiums 888
Bonus and Cash Gift 14,791
Terminal Leave Benefits 2,000
Personnel Economic Relief Allowance 10,266
Additional Compensation of P500 under A.O. 53 11,130
Others 57,173
————
Total Other Compensation 103,815

62
————
01 Total Personal Services 264,032
=======

Maintenance and Other Operating Expenses

02 Traveling Expenses 32,841

03 Communication Services 7,666
04 Repair and Maintenance of Government Facilities 1,220
05 Repair and Maintenance of Government Vehicles 318
06 Transportation Services 128
07 Supplies and Materials 20,189
08 Rents 24,584
14 Water/Illumination and Power 6,561
15 Social Security Benefits and Other Claims 3,270
17 Training and Seminars Expenses 2,225
18 Extraordinary and Miscellaneous Expenses 9,360
23 Advertising and Publication
24 Fidelity Bonds and Insurance Premiums 1,325
29 Other Services 89,778
————
Total Maintenance and Other Operating Expenditures 200,415
————
Total Current Operating Expenditures 464,447
=======

(GAA of 1994, pp. 3-4)

The 1994 operating expenditures for the House of Representatives are as follows:

Personal Services

Salaries, Permanent 261,557

Salaries/Wages, Contractual/Emergency 143,643
————
Total Salaries and Wages 405,200
=======

Other Compensation

Step Increments 4,312

Honoraria and Commutable
Allowances 4,764
Compensation Insurance
Premiums 1,159
Pag-I.B.I.G. Contributions 5,231
Medicare Premiums 2,281

Bonus and Cash Gift 35,669

Terminal Leave Benefits 29
Personnel Economic Relief
Allowance 21,150
Additional Compensation of P500 under A.O. 53
Others 106,140
————

63
Total Other Compensation 202,863
————
01 Total Personal Services 608,063
=======

Maintenance and Other Operating Expenses

02 Traveling Expenses 139,611

03 Communication Services 22,514
04 Repair and Maintenance of Government Facilities 5,116
05 Repair and Maintenance of Government Vehicles 1,863
06 Transportation Services 178
07 Supplies and Materials 55,248
10 Grants/Subsidies/Contributions 940
14 Water/Illumination and Power 14,458
15 Social Security Benefits and Other Claims 325
17 Training and Seminars Expenses 7,236
18 Extraordinary and Miscellaneous Expenses 14,474
20 Anti-Insurgency/Contingency Emergency Expenses 9,400
23 Advertising and Publication 242
24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 284,209
————
Total Maintenance and Other Operating Expenditures 557,234
————
Total Current Operating Expenditures 1,165,297
=======

(GAA of 1994, pp. 11-12)

The Special Provision Applicable to the Congress of the Philippines provides:

4. Realignment of Allocation for Operational Expenses. A member of Congress may realign his allocation for operational
expenses to any other expenses category provide the total of said allocation is not exceeded. (GAA of 1994, p. 14).

The appropriation for operating expenditures for each House is further divided into expenditures for salaries, personal
services, other compensation benefits, maintenance expenses and other operating expenses. In turn, each member of
Congress is allotted for his own operating expenditure a proportionate share of the appropriation for the House to which he
belongs. If he does not spend for one items of expense, the provision in question allows him to transfer his allocation in
said item to another item of expense.

Petitioners assail the special provision allowing a member of Congress to realign his allocation for operational expenses to
any other expense category (Rollo, pp. 82-92), claiming that this practice is prohibited by Section 25(5), Article VI of the
Constitution. Said section provides:

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.

The proviso of said Article of the Constitution grants the President of the Senate and the Speaker of the House of
Representatives the power to augment items in an appropriation act for their respective offices from savings in other items
of their appropriations, whenever there is a law authorizing such augmentation.

The special provision on realignment of the operating expenses of members of Congress is authorized by Section 16 of the
General Provisions of the GAA of 1994, which provides:
64
Expenditure Components. Except by act of the Congress of the Philippines, no change or modification shall be made in the
expenditure items authorized in this Act and other appropriation laws unless in cases
of augmentations from savings in appropriations as authorized under Section 25(5) of Article VI of the Constitution (GAA of
1994, p. 1273).

Petitioners argue that the Senate President and the Speaker of the House of Representatives, but not the individual
members of Congress are the ones authorized to realign the savings as appropriated.

Under the Special Provisions applicable to the Congress of the Philippines, the members of Congress only determine the
necessity of the realignment of the savings in the allotments for their operating expenses. They are in the best position to
do so because they are the ones who know whether there are savings available in some items and whether there are
deficiencies in other items of their operating expenses that need augmentation. However, it is the Senate President and the
Speaker of the House of Representatives, as the case may be, who shall approve the realignment. Before giving their
stamp of approval, these two officials will have to see to it that:

(1) The funds to be realigned or transferred are actually savings in the items of expenditures from which the same are to be
taken; and

(2) The transfer or realignment is for the purposes of augmenting the items of expenditure to which said transfer or
realignment is to be made.

3. Highest Priority for Debt Service

While Congress appropriated P86,323,438,000.00 for debt service (Article XLVII of the GAA of 1994), it appropriated only
P37,780,450,000.00 for the Department of Education Culture and Sports. Petitioners urged that Congress cannot give debt
service the highest priority in the GAA of 1994 (Rollo, pp. 93-94) because under the Constitution it should be education that
is entitled to the highest funding. They invoke Section 5(5), Article XIV thereof, which provides:

(5) The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its
rightful share of the best available talents through adequate remuneration and other means of job satisfaction and
fulfillment.

This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221 (1991), where this Court held that Section 5(5), Article
XIV of the Constitution, is merely directory, thus:

While it is true that under Section 5(5), Article XIV of the Constitution, Congress is mandated to "assign the highest
budgetary priority to education" in order to "insure that teaching will attract and retain its rightful share of the best available
talents through adequate remuneration and other means of job satisfaction and fulfillment," it does not thereby follow that
the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives of the national interest
and for the attainment of other state policies or objectives.

As aptly observed by respondents, since 1985, the budget for education has tripled to upgrade and improve the facility of
the public school system. The compensation of teachers has been doubled. The amount of P29,740,611,000.00 set aside
for the Department of Education, Culture and Sports under the General Appropriations Act (R.A. No. 6381), is the highest
budgetary allocation among all department budgets. This is a clear compliance with the aforesaid constitutional mandate
according highest priority to education.

Having faithfully complied therewith, Congress is certainly not without any power, guided only by its good judgment, to
provide an appropriation, that can reasonably service our enormous debt, the greater portion of which was inherited from
the previous administration. It is not only a matter of honor and to protect the credit standing of the country. More
especially, the very survival of our economy is at stake. Thus, if in the process Congress appropriated an amount for debt
service bigger than the share allocated to education, the Court finds and so holds that said appropriation cannot be thereby
assailed as unconstitutional.

G.R. No. 113105

G.R. No. 113174

65
Veto of Provision on Debt Ceiling

The Congress added a Special Provision to Article XLVIII (Appropriations for Debt Service) of the GAA of 1994 which
provides:

Special Provisions

1. Use of the Fund. The appropriation authorized herein shall be used for payment of principal and interest of foreign and
domestic indebtedness; PROVIDED, That any payment in excess of the amount herein appropriated shall be subject to the
approval of the President of the Philippines with the concurrence of the Congress of the
Philippines; PROVIDED, FURTHER, That in no case shall this fund be used to pay for the liabilities of the Central Bank
Board of Liquidators.

2. Reporting Requirement. The Bangko Sentral ng Pilipinas and the Department of Finance shall submit a quarterly report
of actual foreign and domestic debt service payments to the House Committee on Appropriations and Senate Finance
Committee within one (1) month after each quarter (GAA of 1944, pp. 1266).

The President vetoed the first Special Provision, without vetoing the P86,323,438,000.00 appropriation for debt service in
said Article. According to the President's Veto Message:

IV. APPROPRIATIONS FOR DEBT SERVICE

I would like to emphasize that I concur fully with the desire of Congress to reduce the debt burden by decreasing the
appropriation for debt service as well as the inclusion of the Special Provision quoted below. Nevertheless, I believe that
this debt reduction scheme cannot be validly done through the 1994 GAA. This must be addressed by revising our debt
policy by way of innovative and comprehensive debt reduction programs conceptualized within the ambit of the Medium-
Term Philippine Development Plan.

Appropriations for payment of public debt, whether foreign or domestic, are automatically appropriated pursuant to the
Foreign Borrowing Act and Section 31 of P.D. No. 1177 as reiterated under Section 26, Chapter 4, Book VI of E.O. No.
292, the Administrative Code of 1987. I wish to emphasize that the constitutionality of such automatic provisions on debt
servicing has been upheld by the Supreme Court in the case of "Teofisto T. Guingona, Jr., and Aquilino Q. Pimentel, Jr. v.
Hon. Guillermo N. Carague, in his capacity as Secretary of Budget and Management, et al.," G.R. No. 94571, dated April
22, 1991.

I am, therefore vetoing the following special provision for the reason that the GAA is not the appropriate legislative
measure to amend the provisions of the Foreign Borrowing Act, P.D. No. 1177 and E.O. No. 292:

Use of the Fund. The appropriation authorized herein shall be used for payment of principal and interest of foreign and
domestic indebtedness: PROVIDED, That any payment in excess of the amount herein appropriated shall be subject to the
approval of the President of the Philippines with the concurrence of the Congress of the
Philippines: PROVIDED, FURTHER, That in no case shall this fund be used to pay for the liabilities of the Central Bank
Board of Liquidators (GAA of 1994, p. 1290).

Petitioners claim that the President cannot veto the Special Provision on the appropriation for debt service without vetoing
the entire amount of P86,323,438.00 for said purpose (Rollo, G.R. No. 113105, pp. 93-98; Rollo, G.R. No. 113174, pp. 16-
18). The Solicitor General counterposed that the Special Provision did not relate to the item of appropriation for debt
service and could therefore be the subject of an item veto (Rollo, G.R. No. 113105, pp. 54-60; Rollo, G.R. No. 113174, pp.
72-82).

This issue is a mere rehash of the one put to rest in Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990). In that case, the
issue was stated by the Court, thus:

The fundamental issue raised is whether or not the veto by the President of Section 55 of the 1989 Appropriations Bill
(Section 55
FY '89), and subsequently of its counterpart Section 16 of the 1990 Appropriations Bill (Section 16 FY '90), is
unconstitutional and without effect.
66
The Court re-stated the issue, just so there would not be any misunderstanding about it, thus:

The focal issue for resolution is whether or not the President exceeded the item-veto power accorded by the Constitution.
Or differently put, has the President the power to veto "provisions" of an Appropriations Bill?

The bases of the petition in Gonzales, which are similar to those invoked in the present case, are stated as follows:

In essence, petitioners' cause is anchored on the following grounds: (1) the President's line-veto power as regards
appropriation bills is limited to item/s and does not cover provision/s; therefore, she exceeded her authority when she
vetoed Section 55 (FY '89) and Section 16 (FY '90) which are provisions; (2) when the President objects to a provision of
an appropriation bill, she cannot exercise the item-veto power but should veto the entire bill; (3) the item-veto power does
not carry with it the power to strike out conditions or restrictions for that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in Article VI, Section 25 [5] of the 1987 Constitution, has to be
provided for by law and, therefore, Congress is also vested with the prerogative to impose restrictions on the exercise of
that power.

The restrictive interpretation urged by petitioners that the President may not veto a provision without vetoing the entire bill
not only disregards the basic principle that a distinct and severable part of a bill may be the subject of a separate veto but
also overlooks the Constitutional mandate that any provision in the general appropriations bill shall relate specifically to
some particular appropriation therein and that any such provision shall be limited in its operation to the appropriation to
which it relates (1987 Constitution, Article VI, Section 25 [2]). In other words, in the true sense of the term, a provision in an
Appropriations Bill is limited in its operation to some particular appropriation to which it relates, and does not relate to the
entire bill.

The Court went one step further and ruled that even assuming arguendo that "provisions" are beyond the executive power
to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary sense of the term, they are "inappropriate
provisions" that should be treated as "items" for the purpose of the President's veto power.

The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said that Congress cannot include in a general
appropriations bill matters that should be more properly enacted in separate legislation, and if it does that, the
inappropriate provisions inserted by it must be treated as "item", which can be vetoed by the President in the exercise of
his item-veto power.

It is readily apparent that the Special Provision applicable to the appropriation for debt service insofar as it refers to funds
in excess of the amount appropriated in the bill, is an "inappropriate" provision referring to funds other than the
P86,323,438,000.00 appropriated in the General Appropriations Act of 1991.

Likewise the vetoed provision is clearly an attempt to repeal Section 31 of P.D. No. 1177 (Foreign Borrowing Act) and E.O.
No. 292, and to reverse the debt payment policy. As held by the Court in Gonzales, the repeal of these laws should be
done in a separate law, not in the appropriations law.

The Court will indulge every intendment in favor of the constitutionality of a veto, the same as it will presume the
constitutionality of an act of Congress (Texas Co. v. State, 254 P. 1060; 31 Ariz, 485, 53 A.L.R. 258 [1927]).

The veto power, while exercisable by the President, is actually a part of the legislative process (Memorandum of Justice
Irene Cortes as Amicus Curiae, pp. 3-7). That is why it is found in Article VI on the Legislative Department rather than in
Article VII on the Executive Department in the Constitution. There is, therefore, sound basis to indulge in the presumption
of validity of a veto. The burden shifts on those questioning the validity thereof to show that its use is a violation of the
Constitution.

Under his general veto power, the President has to veto the entire bill, not merely parts thereof (1987 Constitution, Art. VI,
Sec. 27[1]). The exception to the general veto power is the power given to the President to veto any particular item or items
in a general appropriations bill (1987 Constitution, Art. VI,
Sec. 27[2]). In so doing, the President must veto the entire item.

67
A general appropriations bill is a special type of legislation, whose content is limited to specified sums of money dedicated
to a specific purpose or a separate fiscal unit (Beckman, The Item Veto Power of the Executive,
31 Temple Law Quarterly 27 [1957]).

The item veto was first introduced by the Organic Act of the Philippines passed by the U.S. Congress on August 29, 1916.
The concept was adopted from some State Constitutions.

Cognizant of the legislative practice of inserting provisions, including conditions, restrictions and limitations, to items in
appropriations bills, the Constitutional Convention added the following sentence to Section 20(2), Article VI of the 1935
Constitution:

. . . When a provision of an appropriation bill affect one or more items of the same, the President cannot veto the provision
without at the same time vetoing the particular item or items to which it relates . . . .

In short, under the 1935 Constitution, the President was empowered to veto separately not only items in an appropriations
bill but also "provisions".

While the 1987 Constitution did not retain the aforementioned sentence added to Section 11(2) of Article VI of the 1935
Constitution, it included the following provision:

No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some
particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to
which it relates (Art. VI, Sec. 25[2]).

In Gonzales, we made it clear that the omission of that sentence of Section 16(2) of the 1935 Constitution in the 1987
Constitution should not be interpreted to mean the disallowance of the power of the President to veto a "provision".

As the Constitution is explicit that the provision which Congress can include in an appropriations bill must "relate
specifically to some particular appropriation therein" and "be limited in its operation to the appropriation to which it relates,"
it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of
appropriation, is considered "an inappropriate provision" which can be vetoed separately from an item. Also to be included
in the category of "inappropriate provisions" are unconstitutional provisions and provisions which are intended to amend
other laws, because clearly these kind of laws have no place in an appropriations bill. These are matters of general
legislation more appropriately dealt with in separate enactments. Former Justice Irene Cortes, as Amicus Curiae,
commented that Congress cannot by law establish conditions for and regulate the exercise of powers of the President
given by the Constitution for that would be an unconstitutional intrusion into executive prerogative.

The doctrine of "inappropriate provision" was well elucidated in Henry v. Edwards, supra., thus:

Just as the President may not use his item-veto to usurp constitutional powers conferred on the legislature, neither can the
legislature deprive the Governor of the constitutional powers conferred on him as chief executive officer of the state by
including in a general appropriation bill matters more properly enacted in separate legislation. The Governor's constitutional
power to veto bills of general legislation . . . cannot be abridged by the careful placement of such measures in a general
appropriation bill, thereby forcing the Governor to choose between approving unacceptable substantive legislation or
vetoing "items" of expenditures essential to the operation of government. The legislature cannot by location of a bill give it
immunity from executive veto. Nor can it circumvent the Governor's veto power over substantive legislation by artfully
drafting general law measures so that they appear to be true conditions or limitations on an item of appropriation.
Otherwise, the legislature would be permitted to impair the constitutional responsibilities and functions of a co-equal branch
of government in contravention of the separation of powers doctrine . . . We are no more willing to allow the legislature to
use its appropriation power to infringe on the Governor's constitutional right to veto matters of substantive legislation than
we are to allow the Governor to encroach on the Constitutional powers of the legislature. In order to avoid this result, we
hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be
treated as "items" for purposes of the Governor's item veto power over general appropriation bills.

xxx xxx xxx

68
. . . Legislative control cannot be exercised in such a manner as to encumber the general appropriation bill with veto-proof
"logrolling measures", special interest provisions which could not succeed if separately enacted, or "riders", substantive
pieces of legislation incorporated in a bill to insure passage without veto . . . (Emphasis supplied).

Petitioners contend that granting arguendo that the veto of the Special Provision on the ceiling for debt payment is valid,
the President cannot automatically appropriate funds for debt payment without complying with the conditions for automatic
appropriation under the provisions of R.A. No. 4860 as amended by P.D. No. 81 and the provisions of P.D. No. 1177 as
amended by the Administrative Code of 1987 and P.D. No. 1967 (Rollo, G.R. No. 113766, pp. 9-15).

Petitioners cannot anticipate that the President will not faithfully execute the laws. The writ of prohibition will not issue on
the fear that official actions will be done in contravention of the laws.

The President vetoed the entire paragraph one of the Special Provision of the item on debt service, including the provisions
that the appropriation authorized in said item "shall be used for payment of the principal and interest of foreign and
domestic indebtedness" and that "in no case shall this fund be used to pay for the liabilities of the Central Bank Board of
Liquidators." These provisions are germane to and have a direct connection with the item on debt service. Inherent in the
power of appropriation is the power to specify how the money shall be spent (Henry v. Edwards, LA, 346 So., 2d., 153).
The said provisos, being appropriate provisions, cannot be vetoed separately. Hence the item veto of said provisions is
void.

We reiterate, in order to obviate any misunderstanding, that we are sustaining the veto of the Special Provision of the item
on debt service only with respect to the proviso therein requiring that "any payment in excess of the amount herein,
appropriated shall be subject to the approval of the President of the Philippines with the concurrence of the Congress of
the Philippines . . ."

G.R. NO. 113174

G.R. NO. 113766
G.R. NO. 11388

1. Veto of provisions for revolving funds of SUC's.

In the appropriation for State Universities and Colleges (SUC's), the President vetoed special provisions which authorize
the use of income and the creation, operation and maintenance of revolving funds. The Special Provisions vetoed are the
following:

(H. 7) West Visayas State University

Equal Sharing of Income. Income earned by the University subject to Section 13 of the special provisions applicable to all
State Universities and Colleges shall be equally shared by the University and the University Hospital (GAA of 1994, p.
395).

xxx xxx xxx

(J. 3) Leyte State College

Revolving Fund for the Operation of LSC House and Human Resources Development Center (HRDC). The income of
Leyte State College derived from the operation of its LSC House and HRDC shall be constituted into a Revolving Fund to
be deposited in an authorized government depository bank for the operational expenses of these projects/services. The net
income of the Revolving Fund at the end of the year shall be remitted to the National Treasury and shall accrue to the
General Fund. The implementing guidelines shall be issued by the Department of Budget and Management (GAA of 1994,
p. 415).

The vetoed Special Provisions applicable to all SUC's are the following:

12. Use of Income from Extension Services. State Universities and Colleges are authorized to use their income from their
extension services. Subject to the approval of the Board of Regents and the approval of a special budget pursuant to Sec.
35, Chapter 5, Book VI of E.O.
69
No. 292, such income shall be utilized solely for faculty development, instructional materials and work study program (GAA
of 1994, p. 490).

xxx xxx xxx

13. Income of State Universities and Colleges. The income of State Universities and Colleges derived from tuition fees and
other sources as may be imposed by governing boards other than those accruing to revolving funds created under LOI
Nos. 872 and 1026 and those authorized to be recorded as trust receipts pursuant to Section 40, Chapter 5, Book VI of
E.O. No. 292 shall be deposited with the National Treasury and recorded as a Special Account in the General Fund
pursuant to P.D. No. 1234 and P.D. No. 1437 for the use of the institution, subject to Section 35, Chapter 5, Book VI of
E.O. No. 292L PROVIDED, That disbursements from the Special Account shall not exceed the amount actually earned and
deposited: PROVIDED, FURTHER, That a cash advance on such income may be allowed State half of income actually
realized during the preceding year and this cash advance shall be charged against income actually earned during the
budget year: AND PROVIDED, FINALLY, That in no case shall such funds be used to create positions, nor for payment of
salaries, wages or allowances, except as may be specifically approved by the Department of Budge and Management for
income-producing activities, or to purchase equipment or books, without the prior approval of the President of the
Philippines pursuant to Letter of Implementation No. 29.

All collections of the State Universities and Colleges for fees, charges and receipts intended for private recipient units,
including private foundations affiliated with these institutions shall be duly acknowledged with official receipts and
deposited as a trust receipt before said income shall be subject to Section 35, Chapter 5, Book VI of E.O. No. 292
(GAA of 1994, p. 490).

The President gave his reason for the veto thus:

Pursuant to Section 65 of the Government Auditing Code of the Philippines, Section 44, Chapter 5, Book VI of E.O. No.
292, s. 1987 and Section 22, Article VII of the Constitution, all income earned by all Government offices and agencies shall
accrue to the General Fund of the Government in line with the One Fund Policy enunciated by Section 29 (1), Article VI
and Section 22, Article VII of the Constitution. Likewise, the creation and establishment of revolving funds shall be
authorized by substantive law pursuant to Section 66 of the Government Auditing Code of the Philippines and Section 45,
Chapter 5, Book VI of E.O. No. 292.

Notwithstanding the aforementioned provisions of the Constitution and existing law, I have noted the proliferation of special
provisions authorizing the use of agency income as well as the creation, operation and maintenance of revolving funds.

I would like to underscore the facts that such income were already considered as integral part of the revenue and financing
sources of the National Expenditure Program which I previously submitted to Congress. Hence, the grant of new special
provisions authorizing the use of agency income and the establishment of revolving funds over and above the agency
appropriations authorized in this Act shall effectively reduce the financing sources of the 1994 GAA and, at the same time,
increase the level of expenditures of some agencies beyond the well-coordinated, rationalized levels for such agencies.
This corresponding increases the overall deficit of the National Government (Veto Message, p. 3).

Petitioners claim that the President acted with grave abuse of discretion when he disallowed by his veto the "use of
income" and the creation of "revolving fund" by the Western Visayas State University and Leyte State Colleges when he
allowed other government offices, like the National Stud Farm, to use their income for their operating expenses (Rollo,
G.R. No. 113174, pp. 15-16).

There was no undue discrimination when the President vetoed said special provisions while allowing similar provisions in
other government agencies. If some government agencies were allowed to use their income and maintain a revolving fund
for that purpose, it is because these agencies have been enjoying such privilege before by virtue of the special laws
authorizing such practices as exceptions to the "one-fund policy" (e.g., R.A. No. 4618 for the National Stud Farm, P.D. No.
902-A for the Securities and Exchange Commission; E.O. No. 359 for the Department of Budget and Management's
Procurement Service).

2. Veto of provision on 70% (administrative)/30% (contract) ratio for road maintenance.

70
In the appropriation for the Department of Public Works and Highways, the President vetoed the second paragraph of
Special Provision No. 2, specifying the 30% maximum ration of works to be contracted for the maintenance of national
roads and bridges. The said paragraph reads as follows:

2. Release and Use of Road Maintenance Funds. Funds allotted for the maintenance and repair of roads which are
provided in this Act for the Department of Public Works and Highways shall be released to the respective Engineering
District, subject to such rules and regulations as may be prescribed by the Department of Budget and Management.
Maintenance funds for roads and bridges shall be exempt from budgetary reserve.

Of the amount herein appropriated for the maintenance of national roads and bridges, a maximum of thirty percent (30%)
shall be contracted out in accordance with guidelines to be issued by the Department of Public Works and Highways. The
balance shall be used for maintenance by force account.

Five percent (5%) of the total road maintenance fund appropriated herein to be applied across the board to the allocation of
each region shall be set aside for the maintenance of roads which may be converted to or taken over as national roads
during the current year and the same shall be released to the central office of the said department for eventual
sub-allotment to the concerned region and district: PROVIDED, That any balance of the said five percent (5%) shall be
restored to the regions on a pro-rata basis for the maintenance of existing national roads.

No retention or deduction as reserves or overhead expenses shall be made, except as authorized by law or upon direction
of the President
(GAA of 1994, pp. 785-786; Emphasis supplied).

The President gave the following reason for the veto:

While I am cognizant of the well-intended desire of Congress to impose certain restrictions contained in some special
provisions, I am equally aware that many programs, projects and activities of agencies would require some degree of
flexibility to ensure their successful implementation and therefore risk their completion. Furthermore, not only could these
restrictions and limitations derail and impede program implementation but they may also result in a breach of contractual
obligations.

D.1.a. A study conducted by the Infrastructure Agencies show that for practical intent and purposes, maintenance by
contract could be undertaken to an optimum of seventy percent (70%) and the remaining thirty percent (30%) by force
account. Moreover, the policy of maximizing implementation through contract maintenance is a covenant of the Road and
Road Transport Program Loan from the Asian Development Bank (ADB Loan No. 1047-PHI-1990) and Overseas
Economic Cooperation Fund (OECF Loan No. PH-C17-199). The same is a covenant under the World Bank (IBRD) Loan
for the Highway Management Project (IBRD Loan
No. PH-3430) obtained in 1992.

In the light of the foregoing and considering the policy of the government to encourage and maximize private sector
participation in the regular repair and maintenance of infrastructure facilities, I am directly vetoing the underlined second
paragraph of Special Provision No. 2 of the Department of Public Works and Highways (Veto Message, p. 11).

The second paragraph of Special Provision No. 2 brings to fore the divergence in policy of Congress and the President.
While Congress expressly laid down the condition that only 30% of the total appropriation for road maintenance should be
contracted out, the President, on the basis of a comprehensive study, believed that contracting out road maintenance
projects at an option of 70% would be more efficient, economical and practical.

The Special Provision in question is not an inappropriate provision which can be the subject of a veto. It is not alien to the
appropriation for road maintenance, and on the other hand, it specified how the said item shall be expended — 70% by
administrative and 30% by contract.

The 1987 Constitution allows the addition by Congress of special provisions, conditions to items in an expenditure bill,
which cannot be vetoed separately from the items to which they relate so long as they are "appropriate" in the budgetary
sense (Art. VII, Sec. 25[2]).

71
The Solicitor General was hard put in justifying the veto of this special provision. He merely argued that the provision is a
complete turnabout from an entrenched practice of the government to maximize contract maintenance (Rollo, G.R. No.
113888, pp. 85-86). That is not a ground to veto a provision separate from the item to which it refers.

The veto of the second paragraph of Special Provision No. 2 of the item for the DPWH is therefore unconstitutional.

3. Veto of provision on purchase of medicines by AFP.

In the appropriation for the Armed Forces of the Philippines (AFP), the President vetoed the special provision on the
purchase by the AFP of medicines in compliance with the Generics Drugs Law (R.A. No. 6675). The vetoed provision
reads:

12. Purchase of Medicines. The purchase of medicines by all Armed Forces of the Philippines units, hospitals and clinics
shall strictly comply with the formulary embodied in the National Drug Policy of the Department of Health (GAA of 1994, p.
748).

According to the President, while it is desirable to subject the purchase of medicines to a standard formulary, "it is believed
more prudent to provide for a transition period for its adoption and smooth implementation in the Armed Forces of the
Philippines" (Veto Message, p. 12).

The Special Provision which requires that all purchases of medicines by the AFP should strictly comply with the formulary
embodied in the National Drug Policy of the Department of Health is an "appropriate" provision. it is a mere advertence by
Congress to the fact that there is an existing law, the Generics Act of 1988, that requires "the extensive use of drugs with
generic names through a rational system of procurement and distribution." The President believes that it is more prudent to
provide for a transition period for the smooth implementation of the law in the case of purchases by the Armed Forces of
the Philippines, as implied by Section 11 (Education Drive) of the law itself. This belief, however, cannot justify his veto of
the provision on the purchase of medicines by the AFP.

Being directly related to and inseparable from the appropriation item on purchases of medicines by the AFP, the special
provision cannot be vetoed by the President without also vetoing the said item (Bolinao Electronics Corporation v.
Valencia, 11 SCRA 486 [1964]).

4. Veto of provision on prior approval of Congress for purchase of military equipment.

In the appropriation for the modernization of the AFP, the President vetoed the underlined proviso of Special Provision No.
2 on the "Use of Fund," which requires the prior approval of Congress for the release of the corresponding modernization
funds, as well as the entire Special Provisions
No. 3 on the "Specific Prohibition":

2. Use of the Fund. Of the amount herein appropriated, priority shall be given for the acquisition of AFP assets necessary
for protecting marine, mineral, forest and other resources within Philippine territorial borders and its economic zone,
detection, prevention or deterrence of air or surface intrusions and to support diplomatic moves aimed at preserving
national dignity, sovereignty and patrimony: PROVIDED, That the said modernization fund shall not be released until a
Table of Organization and Equipment for FY 1994-2000 is submitted to and approved by Congress.

3. Specific Prohibition. The said Modernization Fund shall not be used for payment of six (6) additional S-211 Trainer
planes, 18 SF-260 Trainer planes and 150 armored personnel carriers (GAA of 1994, p. 747).

As reason for the veto, the President stated that the said condition and prohibition violate the Constitutional mandate of
non-impairment of contractual obligations, and if allowed, "shall effectively alter the original intent of the AFP Modernization
Fund to cover all military equipment deemed necessary to modernize the Armed Forces of the Philippines" (Veto Message,
p. 12).

Petitioners claim that Special Provision No. 2 on the "Use of Fund" and Special Provision No. 3 are conditions or limitations
related to the item on the AFP modernization plan.

72
The requirement in Special Provision No. 2 on the "Use of Fund" for the AFP modernization program that the President
must submit all purchases of military equipment to Congress for its approval, is an exercise of the "congressional or
legislative veto." By way of definition, a congressional veto is a means whereby the legislature can block or modify
administrative action taken under a statute. It is a form of legislative control in the implementation of particular executive
actions. The form may be either negative, that is requiring disapproval of the executive action, or affirmative, requiring
approval of the executive action. This device represents a significant attempt by Congress to move from oversight of the
executive to shared administration (Dixon, The Congressional Veto and Separation of Powers: The Executive on a Leash,
56 North Carolina Law Review, 423 [1978]).

A congressional veto is subject to serious questions involving the principle of separation of powers.

However the case at bench is not the proper occasion to resolve the issues of the validity of the legislative veto as provided
in Special Provisions Nos. 2 and 3 because the issues at hand can be disposed of on other grounds. Any provision
blocking an administrative action in implementing a law or requiring legislative approval of executive acts must be
incorporated in a separate and substantive bill. Therefore, being "inappropriate" provisions, Special Provisions Nos. 2 and
3 were properly vetoed.

As commented by Justice Irene Cortes in her memorandum as Amicus Curiae: "What Congress cannot do directly by law it
cannot do indirectly by attaching conditions to the exercise of that power (of the President as Commander-in-Chief) through
provisions in the appropriation law."

Furthermore, Special Provision No. 3, prohibiting the use of the Modernization Funds for payment of the trainer planes and
armored personnel carriers, which have been contracted for by the AFP, is violative of the Constitutional prohibition on the
passage of laws that impair the obligation of contracts (Art. III, Sec. 10), more so, contracts entered into by the
Government itself.

The veto of said special provision is therefore valid.

5. Veto of provision on use of savings to augment AFP pension funds.

In the appropriation for the AFP Pension and Gratuity Fund, the President vetoed the new provision authorizing the Chief
of Staff to use savings in the AFP to augment pension and gratuity funds. The vetoed provision reads:

2. Use of Savings. The Chief of Staff, AFP, is authorized, subject to the approval of the Secretary of National Defense, to
use savings in the appropriations provided herein to augment the pension fund being managed by the AFP Retirement and
Separation Benefits System as provided under Sections 2(a) and 3 of P.D. No. 361 (GAA of 1994,
p. 746).

According to the President, the grant of retirement and separation benefits should be covered by direct appropriations
specifically approved for the purpose pursuant to Section 29(1) of Article VI of the Constitution. Moreover, he stated that
the authority to use savings is lodged in the officials enumerated in Section 25(5) of Article VI of the Constitution (Veto
Message, pp. 7-8).

Petitioners claim that the Special Provision on AFP Pension and Gratuity Fund is a condition or limitation which is so
intertwined with the item of appropriation that it could not be separated therefrom.

The Special Provision, which allows the Chief of Staff to use savings to augment the pension fund for the AFP being
managed by the AFP Retirement and Separation Benefits System is violative of Sections 25(5) and 29(1) of the Article VI
of the Constitution.

Under Section 25(5), no law shall be passed authorizing any transfer of appropriations, and under Section 29(1), no money
shall be paid out of
the Treasury except in pursuance of an appropriation made by law. While Section 25(5) allows as an exception the
realignment of savings to augment items in the general appropriations law for the executive branch, such right must and
can be exercised only by the President pursuant to a specific law.

6. Condition on the deactivation of the CAFGU's.

73
Congress appropriated compensation for the CAFGU's, including the payment of separation benefits but it added the
following Special Provision:

1. CAFGU Compensation and Separation Benefit. The appropriation authorized herein shall be used for the compensation
of CAFGU's including the payment of their separation benefit not exceeding one (1) year subsistence allowance for the
11,000 members who will be deactivated in 1994. The Chief of Staff, AFP, shall, subject to the approval of the Secretary of
National Defense, promulgate policies and procedures for the payment of separation benefit (GAA of 1994, p. 740).

The President declared in his Veto Message that the implementation of this Special Provision to the item on the CAFGU's
shall be subject to prior Presidential approval pursuant to P.D. No. 1597 and R.A.. No. 6758. He gave the following
reasons for imposing the condition:

I am well cognizant of the laudable intention of Congress in proposing the amendment of Special Provision No. 1 of the
CAFGU. However, it is premature at this point in time of our peace process to earmark and declare through special
provision the actual number of CAFGU members to be deactivated in CY 1994. I understand that the number to be
deactivated would largely depend on the result or degree of success of the on-going peace initiatives which are not yet
precisely determinable today. I have desisted, therefore, to directly veto said provisions because this would mean the loss
of the entire special provision to the prejudice of its beneficient provisions. I therefore declare that the actual
implementation of this special provision shall be subject to prior Presidential approval pursuant to the provisions of P.D.
No. 1597 and
R.A. No. 6758 (Veto Message, p. 13).

Petitioners claim that the Congress has required the deactivation of the CAFGU's when it appropriated the money for
payment of the separation pay of the members of thereof. The President, however, directed that the deactivation should be
done in accordance to his timetable, taking into consideration the peace and order situation in the affected localities.

Petitioners complain that the directive of the President was tantamount to an administrative embargo of the congressional
will to implement the Constitution's command to dissolve the CAFGU's (Rollo, G.R. No. 113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President cannot impair or withhold expenditures authorized
and appropriated by Congress when neither the Appropriations Act nor other legislation authorize such impounding (Rollo,
G.R. No. 113888, pp. 15-16).

The Solicitor General contends that it is the President, as Commander-in-Chief of the Armed Forces of the Philippines, who
should determine when the services of the CAFGU's are no longer needed (Rollo, G.R. No. 113888,
pp. 92-95.).

This is the first case before this Court where the power of the President to impound is put in issue. 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 (Notes: Impoundment of Funds, 86 Harvard Law Review 1505 [1973]).

Those who deny to the President the power to impound argue that once Congress has set aside the fund for a specific
purpose in an appropriations act, it becomes mandatory on the part of the President to implement the project and to spend
the money appropriated therefor. The President has no discretion on the matter, for the Constitution imposes on him the
duty to faithfully execute the laws.

In refusing or deferring the implementation of an appropriation item, the President in effect exercises a veto power that is
not expressly granted by the Constitution. As a matter of fact, the Constitution does not say anything about impounding.
The source of the Executive authority must be found elsewhere.

Proponents of impoundment have invoked at least three principal sources of the authority of the President. Foremost is the
authority to impound given to him either expressly or impliedly by Congress. Second is the executive power drawn from the
President's role as Commander-in-Chief. Third is the Faithful Execution Clause which ironically is the same provision
invoked by petitioners herein.

The proponents insist that a faithful execution of the laws requires that the President desist from implementing the law if
doing so would prejudice public interest. An example given is when through efficient and prudent management of a project,

74
substantial savings are made. In such a case, it is sheer folly to expect the President to spend the entire amount budgeted
in the law (Notes: Presidential Impoundment: Constitutional Theories and Political Realities, 61 Georgetown Law Journal
1295 [1973]; Notes; Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale Law Journal 1686
[1973).

We do not find anything in the language used in the challenged Special Provision that would imply that Congress intended
to deny to the President the right to defer or reduce the spending, much less to deactivate 11,000 CAFGU members all at
once in 1994. But even if such is the intention, the appropriation law is not the proper vehicle for such purpose. Such
intention must be embodied and manifested in another law considering that it abrades the powers of the Commander-in-
Chief and there are existing laws on the creation of the CAFGU's to be amended. Again we state: a provision in an
appropriations act cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and R.A. No. 6758.

7. Condition on the appropriation for the Supreme Court, etc.

(a) In the appropriations for the Supreme Court, Ombudsman, COA, and CHR, the Congress added the following
provisions:

The Judiciary

xxx xxx xxx

Special Provisions

1. Augmentation of any Item in the Court's Appropriations. Any savings in the appropriations for the Supreme Court and the
Lower Courts may be utilized by the Chief Justice of the Supreme Court to augment any item of the Court's appropriations
for (a) printing of decisions and publication of "Philippine Reports"; (b) Commutable terminal leaves of Justices and other
personnel of the Supreme Court and payment of adjusted pension rates to retired Justices entitled thereto pursuant to
Administrative Matter No. 91-8-225-C.A.; (c) repair, maintenance, improvement and other operating expenses of the courts'
libraries, including purchase of books and periodicals; (d) purchase, maintenance and improvement of printing equipment;
(e) necessary expenses for the employment of temporary employees, contractual and casual employees, for judicial
administration; (f) maintenance and improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the Chief Justice, attendance in international conferences and conduct
of training programs; (h) commutable transportation and representation allowances and fringe benefits for Justices, Clerks
of Court, Court Administrator, Chiefs of Offices and other Court personnel in accordance with the rates prescribed by law;
and (i) compensation of attorney-de-officio: PROVIDED, That as mandated by LOI No. 489 any increase in salary and
allowances shall be subject to the usual procedures and policies as provided for under
P.D. No. 985 and other pertinent laws (GAA of 1994, p. 1128; Emphasis supplied).

xxx xxx xxx

Commission on Audit

xxx xxx xxx

5. Use of Savings. The Chairman of the Commission on Audit is hereby authorized, subject to appropriate accounting and
auditing rules and regulations, to use savings for the payment of fringe benefits as may be authorized by law for officials
and personnel of the Commission (GAA of 1994, p. 1161; Emphasis supplied).

xxx xxx xxx

Office of the Ombudsman

xxx xxx xxx

6. Augmentation of Items in the appropriation of the Office of the Ombudsman. The Ombudsman is hereby authorized,
subject to appropriate accounting and auditing rules and regulations to augment items of appropriation in the Office of the

75
Ombudsman from savings in other items of appropriation actually released, for: (a) printing and/or publication of decisions,
resolutions, training and information materials; (b) repair, maintenance and improvement of OMB Central and
Area/Sectoral facilities; (c) purchase of books, journals, periodicals and equipment;
(d) payment of commutable representation and transportation allowances of officials and employees who by reason of their
positions are entitled thereto and fringe benefits as may be authorized specifically by law for officials and personnel of
OMB pursuant to Section 8 of Article IX-B of the Constitution; and (e) for other official purposes subject to accounting and
auditing rules and regulations (GAA of 1994, p. 1174; Emphasis supplied).

xxx xxx xxx

Commission on Human Rights

xxx xxx xxx

1. Use of Savings. The Chairman of the Commission on Human Rights (CHR) is hereby authorized, subject to appropriate
accounting and auditing rules and regulations, to augment any item of appropriation in the office of the CHR from savings
in other items of appropriations actually released, for: (a) printing and/or publication of decisions, resolutions, training
materials and educational publications; (b) repair, maintenance and improvement of Commission's central and regional
facilities; (c) purchase of books, journals, periodicals and equipment, (d) payment of commutable representation and
transportation allowances of officials and employees who by reason of their positions are entitled thereto and fringe
benefits, as may be authorized by law for officials and personnel of CHR, subject to accounting and auditing rules and
regulations (GAA of 1994, p. 1178; Emphasis supplied).

In his Veto Message, the President expressed his approval of the conditions included in the GAA of 1994. He noted that:

The said condition is consistent with the Constitutional injunction prescribed under Section 8, Article IX-B of the
Constitution which states that "no elective or appointive public officer or employee shall receive additional, double, or
indirect compensation unless specifically authorized by law." I am, therefore, confident that the heads of the said offices
shall maintain fidelity to the law and faithfully adhere to the well-established principle on compensation standardization
(Veto Message, p. 10).

Petitioners claim that the conditions imposed by the President violated the independence and fiscal autonomy of the
Supreme Court, the Ombudsman, the COA and the CHR.

In the first place, the conditions questioned by petitioners were placed in the GAB by Congress itself, not by the President.
The Veto Message merely highlighted the Constitutional mandate that additional or indirect compensation can only be
given pursuant to law.

In the second place, such statements are mere reminders that the disbursements of appropriations must be made in
accordance with law. Such statements may, at worse, be treated as superfluities.

(b) In the appropriation for the COA, the President imposed the condition that the implementation of the budget of the COA
be subject to "the guidelines to be issued by the President."

The provisions subject to said condition reads:

xxx xxx xxx

3. Revolving Fund. The income of the Commission on Audit derived from sources authorized by the Government Auditing
Code of the Philippines (P.D. No. 1445) not exceeding Ten Million Pesos (P10,000,000) shall be constituted into a
revolving fund which shall be used for maintenance, operating and other incidental expenses to enhance audit services
and audit-related activities. The fund shall be deposited in an authorized government depository ban, and withdrawals
therefrom shall be made in accordance with the procedure prescribed by law and implementing rules and
regulations: PROVIDED,That any interests earned on such deposit shall be remitted at the end of each quarter to the
national Treasury and shall accrue to the General Fund: PROVIDED FURTHER, That the Commission on Audit shall
submit to the Department of Budget and Management a quarterly report of income and expenditures of said revolving fund
(GAA of 1994, pp. 1160-1161).
76
The President cited the "imperative need to rationalize" the implementation, applicability and operation of use of income
and revolving funds. The Veto Message stated:

. . . I have observed that there are old and long existing special provisions authorizing the use of income and the creation
of revolving funds. As a rule, such authorizations should be discouraged. However, I take it that these authorizations have
legal/statutory basis aside from being already a vested right to the agencies concerned which should not be jeopardized
through the Veto Message. There is, however, imperative need to rationalize their implementation, applicability and
operation. Thus, in order to substantiate the purpose and intention of said provisions, I hereby declare that the
operationalization of the following provisions during budget implementation shall be subject to the guidelines to be issued
by the President pursuant to Section 35, Chapter 5, Book VI of E.O. No. 292 and Sections 65 and 66 of P.D. No. 1445 in
relation to Sections 2 and 3 of the General Provisions of this Act (Veto Message, p. 6; Emphasis Supplied.)

(c) In the appropriation for the DPWH, the President imposed the condition that in the implementation of DPWH projects,
the administrative and engineering overhead of 5% and 3% "shall be subject to the necessary administrative guidelines to
be formulated by the Executive pursuant to existing laws." The condition was imposed because the provision "needs
further study" according to the President.

The following provision was made subject to said condition:

9. Engineering and Administrative Overhead. Not more than five percent (5%) of the amount for infrastructure project
released by the Department of Budget and Management shall be deducted by DPWH for administrative overhead, detailed
engineering and construction supervision, testing and quality control, and the like, thus insuring that at least ninety-five
percent (95%) of the released fund is available for direct implementation of the project. PROVIDED, HOWEVER, That for
school buildings, health centers, day-care centers and barangay halls, the deductible amount shall not exceed three
percent (3%).

Violation of, or non-compliance with, this provision shall subject the government official or employee concerned to
administrative, civil and/or criminal sanction under Sections 43 and 80, Book VI of E.O.
No. 292 (GAA of 1994, p. 786).

(d) In the appropriation for the National Housing Authority (NHA), the President imposed the condition that allocations for
specific projects shall be released and disbursed "in accordance with the housing program of the government, subject to
prior Executive approval."

The provision subject to the said condition reads:

3. Allocations for Specified Projects. The following allocations for the specified projects shall be set aside for corollary
works and used exclusively for the repair, rehabilitation and construction of buildings, roads, pathwalks, drainage,
waterworks systems, facilities and amenities in the area: PROVIDED, That any road to be constructed or rehabilitated shall
conform with the specifications and standards set by the Department of Public Works and Highways for such kind of
road: PROVIDED, FURTHER, That savings that may be available in the future shall be used for road repair, rehabilitation
and construction:

(1) Maharlika Village Road — Not less than P5,000,000

(2) Tenement Housing Project (Taguig) — Not less than P3,000,000

(3) Bagong Lipunan Condominium Project (Taguig) — Not less than P2,000,000

4. Allocation of Funds. Out of the amount appropriated for the implementation of various projects in resettlement areas,
Seven Million Five Hundred Thousand Pesos (P7,500,000) shall be allocated to the Dasmariñas Bagong Bayan
resettlement area, Eighteen Million Pesos (P18,000,000) to the Carmona Relocation Center Area (Gen. Mariano Alvarez)
and Three Million Pesos (P3,000,000) to the Bulihan Sites and Services, all of which will be for the cementing of roads in
accordance with DPWH standards.

77
5. Allocation for Sapang Palay. An allocation of Eight Million Pesos (P8,000,000) shall be set aside for the asphalting of
seven (7) kilometer main road of Sapang Palay, San Jose Del Monte, Bulacan
(GAA of 1994, p. 1216).

The President imposed the conditions: (a) that the "operationalization" of the special provision on revolving funds of the
COA "shall be subject to guidelines to be issued by the President pursuant to Section 35, Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to Sections 2 and 3 of the General Provisions of
this Act" (Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision No. 9 of the DPWH on the mandatory retention of
5% and 3% of the amounts released by said Department "be subject to the necessary administrative guidelines to be
formulated by the Executive pursuant to existing law" (Rollo, G.R. No. 113888; pp. 10, 14-16); and (c) that the
appropriations authorized for the NHA can be released only "in accordance with the housing program of the government
subject to prior Executive approval" (Rollo, G.R. No. 113888, pp. 10-11;
14-16).

The conditions objected to by petitioners are mere reminders that the implementation of the items on which the said
conditions were imposed, should be done in accordance with existing laws, regulations or policies. They did not add
anything to what was already in place at the time of the approval of the GAA of 1994.

There is less basis to complain when the President said that the expenditures shall be subject to guidelines he will issue.
Until the guidelines are issued, it cannot be determined whether they are proper or inappropriate. The issuance of
administrative guidelines on the use of public funds authorized by Congress is simply an exercise by the President of his
constitutional duty to see that the laws are faithfully executed (1987 Constitution, Art. VII, Sec. 17; Planas v. Gil 67 Phil. 62
[1939]). Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry
into execution the law (Schwartz, On Constitutional Law, p. 147 [1977]). These steps are the ones to be embodied in the
guidelines.

IV

Petitioners chose to avail of the special civil actions but those remedies can be used only when respondents have acted
"without or in excess" of jurisdiction, or "with grave abuse of discretion," (Revised Rules of Court,
Rule 65, Section 2). How can we begrudge the President for vetoing the Special Provision on the appropriation for debt
payment when he merely followed our decision in Gonzales? How can we say that Congress has abused its discretion
when it appropriated a bigger sum for debt payment than the amount appropriated for education, when it merely followed
our dictum in Guingona?

Article 8 of the Civil Code of Philippines, provides:

Judicial decisions applying or interpreting the laws or the constitution shall from a part of the legal system of the
Philippines.

The Court's interpretation of the law is part of that law as of the date of its enactment since the court's interpretation merely
establishes the contemporary legislative intent that the construed law purports to carry into effect (People v. Licera, 65
SCRA 270 [1975]). Decisions of the Supreme Court assume the same authority as statutes (Floresca v. Philex Mining
Corporation, 136 SCRA 141 [1985]).

Even if Guingona and Gonzales are considered hard cases that make bad laws and should be reversed, such reversal
cannot nullify prior acts done in reliance thereof.

WHEREFORE, the petitions are DISMISSED, except with respect to

(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the annulment of the veto of the special provision on debt
service specifying that the fund therein appropriated "shall be used for payment of the principal and interest of foreign and
domestic indebtedness" prohibiting the use of the said funds "to pay for the liabilities of the Central Bank Board of
Liquidators", and (2) G.R. No. 113888 only insofar as it prays for the annulment of the veto of: (a) the second paragraph of
Special Provision No. 2 of the item of appropriation for the Department of Public Works and Highways (GAA of 1994, pp.

78
785-786); and (b) Special Provision No. 12 on the purchase of medicines by the Armed Forces of the Philippines (GAA of
1994, p. 748), which is GRANTED.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan and Mendoza, JJ., concur.

___________________________________________________________________________________

Republic of the Philippines

SUPREME COURT
Baguio

EN BANC

G.R. No. 164987 April 24, 2012

LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP), represented by its Chairman and counsel, CEFERINO
PADUA, Members, ALBERTO ABELEDA, JR., ELEAZAR ANGELES, GREGELY FULTON ACOSTA, VICTOR
AVECILLA, GALILEO BRION, ANATALIA BUENAVENTURA, EFREN CARAG, PEDRO CASTILLO, NAPOLEON
CORONADO, ROMEO ECHAUZ, ALFREDO DE GUZMAN, ROGELIO KARAGDAG, JR., MARIA LUZ ARZAGA-
MENDOZA, LEO LUIS MENDOZA, ANTONIO P. PAREDES, AQUILINO PIMENTEL III, MARIO REYES, EMMANUEL
SANTOS, TERESITA SANTOS, RUDEGELIO TACORDA, SECRETARY GEN. ROLANDO ARZAGA, Board of
Consultants, JUSTICE ABRAHAM SARMIENTO, SEN. AQUILINO PIMENTEL, JR., and BARTOLOME FERNANDEZ,
JR., Petitioners,
vs.
THE SECRETARY OF BUDGET AND MANAGEMENT, THE TREASURER OF THE PHILIPPINES, THE COMMISSION
ON AUDIT, and THE PRESIDENT OF THE SENATE and the SPEAKER OF THE HOUSE OF REPRESENTATIVES in
representation of the Members of the Congress, Respondents.

DECISION

MENDOZA, J.:

For consideration of the Court is an original action for certiorari assailing the constitutionality and legality of the
implementation of the Priority Development Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the
General Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and Poverty (LAMP), a group of
lawyers who have banded together with a mission of dismantling all forms of political, economic or social monopoly in the
country,1 also sought the issuance of a writ of preliminary injunction or temporary restraining order to enjoin respondent
Secretary of the Department of Budget and Management (DBM) from making, and, thereafter, releasing budgetary
allocations to individual members of Congress as "pork barrel" funds out of PDAF. LAMP likewise aimed to stop the
National Treasurer and the Commission on Audit (COA) from enforcing the questioned provision.

On September 14, 2004, the Court required respondents, including the President of the Senate and the Speaker of the
House of Representatives, to comment on the petition. On April 7, 2005, petitioner filed a Reply thereto.2 On April 26, 2005,
both parties were required to submit their respective memoranda.

The GAA of 2004 contains the following provision subject of this petition:

PRIORITY DEVELOPMENT ASSISTANCE FUND

For fund requirements of priority development programs and projects, as indicated hereunder – ₱ 8,327,000,000.00

Xxxxx

Special Provision

79
1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to
fund the required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be released
directly to the implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the allocations
authorized herein may be realigned to any expense class, if deemed necessary: PROVIDED FURTHERMORE, That a
maximum of ten percent (10%) of the authorized allocations by district may be used for procurement of rice and other basic
commodities which shall be purchased from the National Food Authority.

Petitioner’s Position

According to LAMP, the above provision is silent and, therefore, prohibits an automatic or direct allocation of lump sums to
individual senators and congressmen for the funding of projects. It does not empower individual Members of Congress to
propose, select and identify programs and projects to be funded out of PDAF. "In previous GAAs, said allocation and
identification of projects were the main features of the ‘pork barrel’ system technically known as Countrywide Development
Fund (CDF). Nothing of the sort is now seen in the present law (R.A. No. 9206 of CY 2004). 3 In its memorandum, LAMP
insists that "[t]he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate
intent on the part of the Executive and the Congress to scrap and do away with the ‘pork barrel’ system."4 In other words,
"[t]he omission of the PDAF provision to specify sums as ‘allocations’ to individual Members of Congress is a ‘casus
omissus’ signifying an omission intentionally made by Congress that this Court is forbidden to supply." 5 Hence, LAMP is of
the conclusion that "the pork barrel has become legally defunct under the present state of GAA 2004."6

LAMP further decries the supposed flaws in the implementation of the provision, namely: 1) the DBM illegally made and
directly released budgetary allocations out of PDAF in favor of individual Members of Congress; and 2) the latter do not
possess the power to propose, select and identify which projects are to be actually funded by PDAF.

For LAMP, this situation runs afoul against the principle of separation of powers because in receiving and, thereafter,
spending funds for their chosen projects, the Members of Congress in effect intrude into an executive function. In other
words, they cannot directly spend the funds, the appropriation for which was made by them. In their individual capacities,
the Members of Congress cannot "virtually tell or dictate upon the Executive Department how to spend taxpayer’s
money.7 Further, the authority to propose and select projects does not pertain to legislation. "It is, in fact, a non-legislative
function devoid of constitutional sanction,"8 and, therefore, impermissible and must be considered nothing less than
malfeasance. The proposal and identification of the projects do not involve the making of laws or the repeal and
amendment thereof, which is the only function given to the Congress by the Constitution. Verily, the power of appropriation
granted to Congress as a collegial body, "does not include the power of the Members thereof to individually propose, select
and identify which projects are to be actually implemented and funded - a function which essentially and exclusively
pertains to the Executive Department."9 By allowing the Members of Congress to receive direct allotment from the fund, to
propose and identify projects to be funded and to perform the actual spending of the fund, the implementation of the PDAF
provision becomes legally infirm and constitutionally repugnant.

Respondents’ Position

For their part, the respondents10 contend that the petition miserably lacks legal and factual grounds. Although they admit
that PDAF traced its roots to CDF,11 they argue that the former should not be equated with "pork barrel," which has gained
a derogatory meaning referring "to government projects affording political opportunism."12 In the petition, no proof of this
was offered. It cannot be gainsaid then that the petition cannot stand on inconclusive media reports, assumptions and
conjectures alone. Without probative value, media reports cited by the petitioner deserve scant consideration especially the
accusation that corrupt legislators have allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should
decline the petitioner’s plea to take judicial notice of the supposed iniquity of PDAF because there is no concrete proof that
PDAF, in the guise of "pork barrel," is a source of "dirty money" for unscrupulous lawmakers and other officials who tend to
misuse their allocations. These "facts" have no attributes of sufficient notoriety or general recognition accepted by the
public without qualification, to be subjected to judicial notice. This applies, a fortiori, to the claim that Members of Congress
are beneficiaries of commissions (kickbacks) taken out of the PDAF allocations and releases and preferred by favored
contractors representing from 20% to 50% of the approved budget for a particular project. 13 Suffice it to say, the
perceptions of LAMP on the implementation of PDAF must not be based on mere speculations circulated in the news
media preaching the evils of pork barrel. Failing to present even an iota of proof that the DBM Secretary has been

80
releasing lump sums from PDAF directly or indirectly to individual Members of Congress, the petition falls short of its
cause.

Likewise admitting that CDF and PDAF are "appropriations for substantially similar, if not the same, beneficial
purposes," 14 the respondents invoke Philconsa v. Enriquez,15 where CDF was described as an imaginative and innovative
process or mechanism of implementing priority programs/projects specified in the law. In Philconsa, the Court upheld the
authority of individual Members of Congress to propose and identify priority projects because this was merely
recommendatory in nature. In said case, it was also recognized that individual members of Congress far more than the
President and their congressional colleagues were likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project.

The Issues

The respondents urge the Court to dismiss the petition for its failure to establish factual and legal basis to support its
claims, thereby lacking an essential requisite of judicial review—an actual case or controversy.

The Court’s Ruling

To the Court, the case boils down to these issues: 1) whether or not the mandatory requisites for the exercise of judicial
review are met in this case; and 2) whether or not the implementation of PDAF by the Members of Congress is
unconstitutional and illegal.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there
must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.16

An aspect of the "case-or-controversy" requirement is the requisite of "ripeness." In the United States, courts are centrally
concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed
may not occur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for
judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the
issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it.17

In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers.
According to LAMP, the practice of direct allocation and release of funds to the Members of Congress and the authority
given to them to propose and select projects is the core of the law’s flawed execution resulting in a serious constitutional
transgression involving the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely
affected by this. A finding of unconstitutionality would necessarily be tantamount to a misapplication of public funds which,
in turn, cause injury or hardship to taxpayers. This affords "ripeness" to the present controversy.

Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative
or executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of
legal rights susceptible of judicial resolution. For LAMP, this is the right to recover public funds possibly misapplied by n o
less than the Members of Congress. Hence, without prejudice to other recourse against erring public officials, allegations of
illegal expenditure of public funds reflect a concrete injury that may have been committed by other branches of government
before the court intervenes. The possibility that this injury was indeed committed cannot be discounted. The petition
complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say that there indeed
exists a definite, concrete, real or substantial controversy before the Court.

Anent locus standi, "the rule is 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 sustained, direct injury as a result of its enforcement.18 The gist of
the question of standing is whether a party alleges "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
81
illumination of difficult constitutional questions."19 In public suits, the plaintiff, representing the general public, asserts a
"public right" in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from
any other person, and could be suing as a "stranger," or as a "citizen" or "taxpayer."20 Thus, 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. 21 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.22

Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers’ suits is
established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an
invalid or unconstitutional law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works23 is
authority in support of the petitioner:

In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a
statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in
preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes
requiring expenditure of public moneys. [11 Am. Jur. 761, Emphasis supplied.]

Lastly, the Court is of the view that the petition poses issues impressed with paramount public interest. The ramification of
issues involving the unconstitutional spending of PDAF deserves the consideration of the Court, warranting the assumption
of jurisdiction over the petition.

Now, on the substantive issue.

The powers of government are generally divided into three branches: the Legislative, the Executive and the Judiciary. Each
branch is supreme within its own sphere being independent from one another and it is this supremacy which enables the
courts to determine whether a law is constitutional or unconstitutional.24 The Judiciary is the final arbiter on the question of
whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but
a duty to pass judgment on matters of this nature.25

With these long-established precepts in mind, the Court now goes to the crucial question: In allowing the direct allocation
and release of PDAF funds to the Members of Congress based on their own list of proposed projects, did the
implementation of the PDAF provision under the GAA of 2004 violate the Constitution or the laws?

The Court rules in the negative.

In determining whether or not a statute is unconstitutional, the Court does not lose sight of the presumption of validity
accorded to statutory acts of Congress. In Fariñas v. The Executive Secretary, 26 the Court held that:

Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and
one which operates no further than may be necessary to effectuate the specific purpose of the law. Every presumption
should be indulged in favor of the constitutionality and the burden of proof is on the party alleging that there is
a clear and unequivocal breach of the Constitution.

To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of
the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain
legislation because "to invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it." 27 This presumption of constitutionality can be
overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that
the challenged act must be struck down.28

The petition is miserably wanting in this regard. LAMP would have the Court declare the unconstitutionality of the PDAF’s
enforcement based on the absence of express provision in the GAA allocating PDAF funds to the Members of Congress
and the latter’s encroachment on executive power in proposing and selecting projects to be funded by PDAF. Regrettably,

82
these allegations lack substantiation. No convincing proof was presented showing that, indeed, there were direct releases
of funds to the Members of Congress, who actually spend them according to their sole discretion. Not even a
documentation of the disbursement of funds by the DBM in favor of the Members of Congress was presented by the
petitioner to convince the Court to probe into the truth of their claims. Devoid 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
Court cannot indulge the petitioner’s request for rejection of a law which is outwardly legal and capable of lawful
enforcement. In a case like this, the Court’s hands are tied in deference to the presumption of constitutionality lest the
Court commits unpardonable judicial legislation. The Court is not endowed with the power of clairvoyance to divine from
scanty allegations in pleadings where justice and truth lie. 29 Again, newspaper or electronic reports showing the appalling
effects of PDAF cannot be appreciated by the Court, "not because of any issue as to their truth, accuracy, or impartiality,
but for the simple reason that facts must be established in accordance with the rules of evidence."30

Hence, absent a clear showing that an offense to the principle of separation of powers was committed, much less tolerated
by both the Legislative and Executive, the Court is constrained to hold that a lawful and regular government budgeting and
appropriation process ensued during the enactment and all throughout the implementation of the GAA of 2004. The
process was explained in this wise, in Guingona v. Carague:31

1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the estimation of
government revenues, the determination of budgetary priorities and activities within the constraints imposed by available
revenues and by borrowing limits, and the translation of desired priorities and activities into expenditure levels.

Budget preparation starts with the budget call issued by the Department of Budget and Management. Each agency is
required to submit agency budget estimates in line with the requirements consistent with the general ceilings set by the
Development Budget Coordinating Council (DBCC).

With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest rates (e.g. LIBOR rate)
and estimated sources of domestic and foreign financing, estimates debt service levels. Upon issuance of budget call, the
Bureau of Treasury computes for the interest and principal payments for the year for all direct national government
borrowings and other liabilities assumed by the same.

2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or acts on the budget proposals
of the President, and Congress in the exercise of its own judgment and wisdom formulatesan appropriation act precisely
following the process established by the Constitution, which specifies that no money may be paid from the Treasury except
in accordance with an appropriation made by law.

xxx

3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the
various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of work and
financial plans for individual activities, the continuing review of government fiscal position, the regulation of funds releases,
the implementation of cash payment schedules, and other related activities comprise this phase of the budget cycle.

4. Budget accountability. The fourth phase refers to the evaluation of actual performance and initially approved work
targets, obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the
agency budgets were approved.

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriation
bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with
amendments.32 While the budgetary process commences from the proposal submitted by the President to Congress, it is
the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its
own judgment, wisdom and purposes. Like any other piece of legislation, the appropriation act may then be susceptible to
objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under
the domain of the Executive branch which deals with the operational aspects of the cycle including the allocation and
release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of
payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. "The
DBM lays down the guidelines for the disbursement of the fund. The Members of Congress are then requested by the
83
President to recommend projects and programs which may be funded from the PDAF. The list submitted by the Members
of Congress is endorsed by the Speaker of the House of Representatives to the DBM, which reviews and determines
whether such list of projects submitted are consistent with the guidelines and the priorities set by the Executive." 33 This
demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per
se of the budget.

As applied to this case, the petition is seriously wanting in establishing that individual Members of Congress receive and
thereafter spend funds out of PDAF. Although the possibility of this unscrupulous practice cannot be entirely discounted,
surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the
Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld
in Philconsa. This remains as valid case law. The Court sees no need to review or reverse the standing pronouncements in
the said case. So long as there is no showing of a direct participation of legislators in the actual spending of the budget, the
constitutional boundaries between the Executive and the Legislative in the budgetary process remain intact.

While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid
legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress. Again, "all
presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all
possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a
liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted."34

There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately, the
petition must fail based on the foregoing reasons.

WHEREFORE, the petition is DISMISSED without pronouncement as to costs.

SO ORDERED.

________________________________________________________________________

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.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x
84
G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province of
Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

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

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced to the degrading ritual
of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast their famished bodies into the porcine
feast to assuage their hunger with morsels coming from the generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of their districts. 5 While the
advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to political bills that "bring home the
bacon" to a legislator‘s district and constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring money to a representative's
district.7Some 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
85
legislator‘s allocation, and the amount each legislator would eventually get is determined in a caucus convened by the
majority. The amount was then integrated into the administration bill prepared by the Department of Public Works and
Communications. Thereafter, the Senate and the House of Representatives added their own provisions to the bill until it
was signed into law by the President – the Public Works Act.17 In the 1960‘s, however, pork barrel legislation reportedly
ceased in view of the stalemate between the House of Representatives and the Senate. 18

B. Martial Law Era (1972-1986).

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

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy, "Congressional Pork Barrel"
was revived in the form of the "Mindanao Development Fund" and the "Visayas Development Fund" which were created
with lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the funding of development projects in the
Mindanao and Visayas areas in 1989. It has been documented 23 that the clamor raised by the Senators and the Luzon
legislators for a similar funding, prompted the creation of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover "small local infrastructure and other priority
community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to be released directly
to the implementing agencies but "subject to the submission of the required list of projects and activities."Although the
GAAs from 1990 to 1992 were silent as to the amounts of allocations of the individual legislators, as well as their
participation in the identification of projects, it has been reported 26 that by 1992, Representatives were receiving ₱12.5
Million each in CDF funds, while Senators were receiving ₱18 Million each, without any limitation or qualification, and that
they could identify any kind of project, from hard or infrastructure projects such as roads, bridges, and buildings to "soft
projects" such as textbooks, medicines, and scholarships.27

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

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

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

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the implementing agency
concerned, were directed to submit to the DBM the list of 50% of projects to be funded from their respective CDF
allocations which shall be duly endorsed by (a) the Senate President and the Chairman of the Committee on Finance, in
the case of the Senate, and (b) the Speaker of the House of Representatives and the Chairman of the Committee on
86
Appropriations, in the case of the House of Representatives; while the list for the remaining 50% was to be submitted
within six (6) months thereafter. The same article also stated that the project list, which would be published by the
DBM,35 "shall be the basis for the release of funds" and that "no funds appropriated herein shall be disbursed for projects
not included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and endorsements were reproduced,
except that the publication of the project list was no longer required as the list itself sufficed for the release of CDF Funds.

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

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

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the "Food Security
Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"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 re-enacted.53

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

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated for the individual
legislators, as well as their participation in the proposal and identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the concerned Member of Congress 61anent certain aspects of
project implementation.

87
Significantly, it was during this era that provisions which allowed formal participation of non-governmental organizations
(NGO) in the implementation of government projects were introduced. In the Supplemental Budget for 2006, with respect to
the appropriation for school buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated that
"the amount of at least ₱250 Million of the ₱500 Million allotted for the construction and completion of school buildings shall
be made available to NGOs including the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability and proven track records in the construction of public school buildings x
x x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs under the DepEd Budget. 63 Also, it
was in 2007 that the Government Procurement Policy Board 64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007
(GPPB Resolution 12-2007), amending the implementing rules and regulations 65 of RA 9184,66 the Government
Procurement Reform 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 2011 70 PDAF Article included an express
statement on lump-sum amounts allocated for individual legislators and the Vice-President: Representatives were given
₱70 Million each, broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was
given to each Senator as well as the Vice-President, with a ₱100 Million allocation each for "hard" and "soft projects."
Likewise, a provision on realignment of funds was included, but with the qualification that it may be allowed only once. The
same provision also allowed the Secretaries of Education, Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and Public Works and Highways to realign PDAF Funds, with
the further conditions that: (a) realignment is within the same implementing unit and same project category as the original
project, for infrastructure projects; (b) allotment released has not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the legislator concerned. 71

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

Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and 2013 PDAF Articles; but
the allocation for the Vice-President, which was pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if they have the technical capability to
implement the projects.77 Legislators were also allowed to identify programs/projects, except for assistance to indigent
patients and scholarships, outside of his legislative district provided that he secures the written concurrence of the
legislator of the intended outside-district, endorsed by the Speaker of the House. 78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as requests for release of funds, were all required to be favorably
endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

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

On the one hand, the Malampaya Funds was created as a special fund under Section 8 80 of Presidential Decree No. (PD)
910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos
recognized the need to set up a special fund to help intensify, strengthen, and consolidate government efforts relating to
the exploration, exploitation, and development of indigenous energy resources vital to economic growth. 82 Due to the
energy-related activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep Water
Gas-to-Power Project",83 the special fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.

88
More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993 on October 31, 1985, 86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the President provides direct assistance
to priority programs and projects not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

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

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

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

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit investigation99covering the
use of legislators' PDAF from 2007 to 2009, or during the last three (3) years of the Arroyo administration. The purpose of
the audit was to determine the propriety of releases of funds under PDAF and the Various Infrastructures including Local
Projects (VILP)100 by the DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government-owned-and-controlled corporations (GOCCs).101 The total releases
covered by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority Development
Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

● Amounts released for projects identified by a considerable number of legislators significantly exceeded their respective
allocations.

● Amounts were released for projects outside of legislative districts of sponsoring members of the Lower House.

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

● Infrastructure projects were constructed on private lots without these having been turned over to the government.

89
● Significant amounts were released to implementing agencies without the latter‘s endorsement and without considering
their mandated functions, administrative and technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the implementing agencies themselves but by NGOs
endorsed by the proponent legislators to which the Funds were transferred.

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

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

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects amount to ₱6.156
Billion were either found questionable, or submitted questionable/spurious documents, or failed to liquidate in whole or in
part their utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods and services reportedly used in the
projects were not compliant with law.

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

V. The Procedural Antecedents.

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

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

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin
Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and
Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork
Barrel System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, 107 be declared
unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray that the Court issue
a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their
respective capacities as the incumbent Executive Secretary, Secretary of the Department of Budget and Management
(DBM), and National Treasurer, or their agents, for them to immediately cease any expenditure under the aforesaid funds.
Further, they pray that the Court order the foregoing respondents to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of the
funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from
the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all
pertinent data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the Congress of all presently off-
budget, lump-sum, discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances
from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

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Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated August 23, 2012
(Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease and desist order be issued
restraining President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive departments, such as the DPWH, the Department of Tourism, the
Department of Health, the Department of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

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

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

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

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

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

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

The Issues Before the Court

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

I. Procedural Issues.

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

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

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

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

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

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

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial
inquiry,117 namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person
challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis mota of
the case.118 Of these requisites, case law states that the first two are the most important119and, 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

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

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

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

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

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

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

xxxx

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

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

xxxx

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

Solictor General Jardeleza: Yes, Your Honor.

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

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

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

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

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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 system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the
government‘s own recognition that reforms are needed "to address the reported abuses of the PDAF" 130 demonstrates a
prima facie pattern of abuse which only underscores the importance of the matter. It is also by this finding that the Court
finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the weight accorded by the Court to
the findings made by the CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v.
CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it was
emphasized that:

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

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

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

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

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

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance that "the courts will
not intrude into areas committed to the other branches of government." 138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under the classic formulation of Baker v. Carr, 139applies when there is
found, among others, "a textually demonstrable constitutional commitment of the issue to a coordinate political
department," "a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of deciding
without an initial policy determination of a kind clearly for non- judicial discretion." Cast against this light, respondents

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submit that the "the political branches are in the best position not only to perform budget-related reforms but also to do
them in response to the specific demands of their constituents" and, as such, "urge the Court not to impose a solution at
this stage."140

The Court must deny respondents‘ submission.

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

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

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

C. Locus Standi.

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

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

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

D. Res Judicata and Stare Decisis.

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

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

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under Article 8 152 of the
Civil Code, evokes the general rule that, for the sake of certainty, a conclusion reached in one case should be doctrinally
applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as
in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate
the same issue.153

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

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

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

II. Substantive Issues.

A. Definition of Terms.

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

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

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

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

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

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

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both constitutionally
assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon. Carague 173 (Guingona,
Jr.), the Court explained that the phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the "regulation and release of
funds" as well as all "other related activities" that comprise the budget execution cycle. 174 This is rooted in the principle that
the allocation of power in the three principal branches of government is a grant of all powers inherent in them. 175 Thus,
unless the Constitution provides otherwise, the Executive department should exclusively exercise all roles and prerogatives
which go into the implementation of the national budget as provided under the GAA as well as any other appropriation law.

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

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

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1âwphi1 In particular,
congressional oversight must be confined to the following:

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

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

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

b. Application.

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

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

The Court rules in favor of petitioners.

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

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

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

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

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

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

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

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

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

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

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

xxxx
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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,197or 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

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rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-making).199The conceptual
treatment and limitations of delegated rule-making were explained in the case of People v. Maceren200 as follows:

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

xxxx

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

b. Application.

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

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

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

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

Sec. 27. x x x.

xxxx

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

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of item-veto,
forms part of the "single, finely wrought and exhaustively considered, procedures" for law-passage as specified under the
Constitution.204 As stated in Abakada, the final step in the law-making process is the "submission of the bill to the President
for approval. Once approved, it takes effect as law after the required publication." 205
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Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the Court, in Bengzon,
explained that:206

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

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

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

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

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not some
general provision of law which happens to be put into an appropriation bill. (Emphases supplied)

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

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

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

b. Application.

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

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

The Court agrees with petitioners.

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

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

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

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional Pork
Barrel Laws of similar operation, to be unconstitutional. That such budgeting system provides for a greater degree of

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flexibility to account for future contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first
and essential truth of the matter is that unconstitutional means do not justify even commendable ends. 218

c. Accountability.

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

The Court agrees in part.

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

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

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

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

Clearly, allowing legislators to intervene in the various phases of project implementation – a matter before another office of
government – renders them susceptible to taking undue advantage of their own office.

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

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

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

4. Political Dynasties.

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

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

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

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

5. Local Autonomy.

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

ARTICLE II

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

ARTICLE X

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

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

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

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

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)

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The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local government
units (LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national economy. As
explained by the Court in Philippine Gamefowl Commission v. Intermediate Appellate Court: 228

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

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

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

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies the
avowed intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and CDF
allocation/division is based solely on the fact of office, without taking into account the specific interests and peculiarities of
the district the legislator represents. In this regard, the allocation/division limits are clearly not based on genuine
parameters of equality, wherein economic or geographic indicators have been taken into consideration. As a result, a
district representative of a highly-urbanized metropolis gets the same amount of funding as a district representative of a
far-flung rural province which would be relatively "underdeveloped" compared to the former. To add, what rouses graver
scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-President – who do not
represent any locality, receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately, the PDAF and CDF had
become personal funds under the effective control of each legislator and given unto them on the sole account of their
office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of
the various Local Development Councils (LDCs) which are already legally mandated to "assist the corresponding
sanggunian in setting the direction of economic and social development, and coordinating development efforts within its
territorial jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared towards
managing local affairs,235 their programs, policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except only when acting as a body. The
undermining effect on local autonomy caused by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236

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

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

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

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993), which
respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid appropriations laws since they
do not have the "primary and specific" purpose of authorizing the release of public funds from the National Treasury.
Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary and specific‖ purpose of PD 910
is the creation of an Energy Development Board and Section 8 thereof only created a Special Fund incidental thereto. 237 In
similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the
Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD 1869 which is the amendment of
the Franchise and Powers of PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used
without any valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists when a
provision of law (a) sets apart a determinate or determinable 240 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

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intent to appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made
by law" under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

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

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

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

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

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

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power
since the phrase "and for such other purposes as may be hereafter directed by the President" gives the President
"unbridled discretion to determine for what purpose the funds will be used." 243 Respondents, on the other hand, urged the
Court to apply the principle of ejusdem generis to the same section and thus, construe the phrase "and for such other
purposes as may be hereafter directed by the President" to refer only to other purposes related "to energy resource
development and exploitation programs and projects of the government."244

The Court agrees with petitioners‘ submissions.

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

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

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

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

110
by any sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as
amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

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

ARTICLE II

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

ARTICLE III Sec. 7.

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

The Court denies petitioners‘ submission.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court, therefore, applies the same treatment here.

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

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

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

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of released funds. In
response to the Court‘s September 10, 2013 TRO that enjoined the release of the remaining PDAF allocated for the year

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2013, the DBM issued Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently
reads as follows:

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

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

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

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

The Court agrees with petitioners in part.

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

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

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

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

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

xxxx

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

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

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

Justice Bernabe: They are withdrawn?

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

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

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

E. Consequential Effects of Decision.

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

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

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

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final analys is,
the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within
which it operates. To recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget execution, the system has violated the principle of separation of powers;
insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from
which they are able to fund specific projects which they themselves determine, it has similarly violated the principle of non-
delegability of legislative power ; insofar as it has created a system of budgeting wherein items are not textualized into the
appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied the President the
power to veto items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a stake in
the affairs of budget execution, an aspect of governance which they may be called to monitor and scrutinize, the system
has equally impaired public accountability ; insofar as it has authorized legislators, who are national officers, to intervene in
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affairs of purely local nature, despite the existence of capable local institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad
classification of "priority infrastructure development projects," it has once more transgressed the principle of non-
delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and mechanisms the
Court has herein pointed out should never again be adopted in any system of governance, by any name or form, by any
semblance or similarity, by any influence or effect. Disconcerting as it is to think that a system so constitutionally unsound
has monumentally endured, the Court urges the people and its co-stewards in government to look forward with the
optimism of change and the awareness of the past. At a time of great civic unrest and vociferous public debate, the Court
fervently hopes that its Decision today, while it may not purge all the wrongs of society nor bring back what has been lost,
guides this nation to the path forged by the Constitution so that no one may heretofore detract from its cause nor stray from
its course. After all, this is the Court‘s bounden duty and no other‘s.

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

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

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

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

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable
dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible criminal
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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.

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