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Supreme Court of the Philippines physical ability to work and who neglects to apply himself or herself to

some lawful calling;


THIRD DIVISION
2. Any person found loitering about public or semi-public
G.R. No. 169364, September 18, 2009 buildings or places or tramping or wandering about the country or
the streets without visible means of support;
PEOPLE OF THE PHILIPPINES, PETITIONER, VS.
EVANGELINE SITON Y SACIL AND KRYSTEL KATE 3. Any idle or dissolute person who lodges in houses of ill fame; ruffians
SAGARANO Y MEFANIA, RESPONDENTS. or pimps and those who habitually associate with prostitutes;

DECISION 4. Any person who, not being included in the provisions of other
articles of this Code, shall be found loitering in any inhabited or
YNARES-SANTIAGO, J.: uninhabited place belonging to another without any lawful or justifiable
purpose;
If a man is called to be a street sweeper, he should sweep streets even as
Michelangelo painted, or Beethoven composed music, or Shakespeare
5. Prostitutes.
wrote poetry. He should sweep streets so well that all the hosts of
Heaven and Earth will pause to say, here lived a great street sweeper
For the purposes of this article, women who, for money or profit,
who did his job well.
habitually indulge in sexual intercourse or lascivious conduct, are
deemed to be prostitutes.
- Martin Luther King, Jr.

Any person found guilty of any of the offenses covered by this articles
Assailed in this petition for review on certiorari is the July 29, 2005 shall be punished by arresto menor or a fine not exceeding 200 pesos, and
Order[1] of Branch 11, Davao City Regional Trial Court in Special Civil in case of recidivism, by arresto mayor in its medium period to prision
Case No. 30-500-2004 granting respondents' Petition for Certiorari and correccional in its minimum period or a fine ranging from 200 to 2,000
declaring paragraph 2 of Article 202 of the Revised Penal Code pesos, or both, in the discretion of the court.
unconstitutional.

Instead of submitting their counter-affidavits as directed, respondents


Respondents Evangeline Siton and Krystel Kate Sagarano were charged
filed separate Motions to Quash[3] on the ground that Article 202 (2) is
with vagrancy pursuant to Article 202 (2) of the Revised Penal Code in
unconstitutional for being vague and overbroad.
two separate Informations dated November 18, 2003, docketed as
Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to
In an Order[4] dated April 28, 2004, the municipal trial court denied the
Branch 3 of the Municipal Trial Court in Cities, Davao City. The
motions and directed respondents anew to file their respective counter-
Informations, read:
affidavits. The municipal trial court also declared that the law on
vagrancy was enacted pursuant to the State's police power and justified
That on or about November 14, 2003, in the City of Davao,
by the Latin maxim "salus populi est suprem(a) lex," which calls for the
Philippines, and within the jurisdiction of this Honorable Court, the
subordination of individual benefit to the interest of the greater
above-mentioned accused, willfully, unlawfully and feloniously
number, thus:
wandered and loitered around San Pedro and Legaspi Streets, this City,
without any visible means to support herself nor lawful and justifiable
Our law on vagrancy was enacted pursuant to the police power of the
purpose.[2]
State. An authority on police power, Professor Freund describes
laconically police power "as the power of promoting public welfare by
Article 202 of the Revised Penal Code provides: restraining and regulating the use of liberty and property." (Citations
omitted). In fact the person's acts and acquisitions are hemmed in by
Art. 202. Vagrants and prostitutes; penalty. -- The following are vagrants: the police power of the state. The justification found in the Latin
maxim, salus populi est supreme (sic) lex" (the god of the people is the
1. Any person having no apparent means of subsistence, who has the Supreme Law). This calls for the subordination of individual benefit to
the interests of the greater number.In the case at bar the affidavit of the
arresting police officer, SPO1 JAY PLAZA with Annex "A" lucidly SO ORDERED.[8]
shows that there was a prior surveillance conducted in view of the
reports that vagrants and prostitutes proliferate in the place where the
In declaring Article 202 (2) unconstitutional, the trial court opined that
two accused (among other women) were wandering and in the wee
the law is vague and it violated the equal protection clause. It held that
hours of night and soliciting male customer. Thus, on that basis the
the "void for vagueness" doctrine is equally applicable in testing the
prosecution should be given a leeway to prove its case. Thus, in the
validity of penal statutes. Citing Papachristou v. City of Jacksonville,[9] where
interest of substantial justice, both prosecution and defense must be
an anti vagrancy ordinance was struck down as unconstitutional by the
given their day in Court: the prosecution proof of the crime, and the
Supreme Court of the United States, the trial court ruled:
author thereof; the defense, to show that the acts of the accused in the
indictment can't be categorized as a crime.[5]
The U.S. Supreme Court's justifications for striking down the
Jacksonville Vagrancy Ordinance are equally applicable to paragraph 2
The municipal trial court also noted that in the affidavit of the arresting of Article 202 of the Revised Penal Code.
police officer, SPO1 Jay Plaza, it was stated that there was a prior
surveillance conducted on the two accused in an area reported to be Indeed, to authorize a police officer to arrest a person for being "found
frequented by vagrants and prostitutes who solicited sexual favors. loitering about public or semi-public buildings or places or tramping or
Hence, the prosecution should be given the opportunity to prove the wandering about the country or the streets without visible means of
crime, and the defense to rebut the evidence. support" offers too wide a latitude for arbitrary determinations as to
who should be arrested and who should not.
Respondents thus filed an original petition for certiorari and prohibition
with the Regional Trial Court of Davao City,[6] directly challenging the Loitering about and wandering have become national pastimes
constitutionality of the anti-vagrancy law, claiming that the definition of particularly in these times of recession when there are many who are
the crime of vagrancy under Article 202 (2), apart from being vague, "without visible means of support" not by reason of choice but by force
results as well in an arbitrary identification of violators, since the of circumstance as borne out by the high unemployment rate in the
definition of the crime includes in its coverage persons who are entire country.
otherwise performing ordinary peaceful acts. They likewise claimed that
Article 202 (2) violated the equal protection clause under the To authorize law enforcement authorities to arrest someone for nearly
Constitution because it discriminates against the poor and unemployed, no other reason than the fact that he cannot find gainful employment
thus permitting an arbitrary and unreasonable classification. would indeed be adding insult to injury.[10]

The State, through the Office of the Solicitor General, argued that
On its pronouncement that Article 202 (2) violated the equal protection
pursuant to the Court's ruling in Estrada v. Sandiganbayan,[7] the
clause of the Constitution, the trial court declared:
overbreadth and vagueness doctrines apply only to free speech cases
and not to penal statutes. It also asserted that Article 202 (2) must be
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our
presumed valid and constitutional, since the respondents failed to
situation at present runs afoul of the equal protection clause of the
overcome this presumption.
constitution as it offers no reasonable classification between those
covered by the law and those who are not.
On July 29, 2005, the Regional Trial Court issued the assailed Order
granting the petition, the dispositive portion of which reads:
Class legislation is such legislation which denies rights to one which are
accorded to others, or inflicts upon one individual a more severe
WHEREFORE, PRESCINDING FROM THE FOREGOING, the
penalty than is imposed upon another in like case offending.
instant Petition is hereby GRANTED. Paragraph 2 of Article 202 of the
Revised Penal Code is hereby declared unconstitutional and the Order
Applying this to the case at bar, since the definition of Vagrancy under
of the court a quo, dated April 28, 2004, denying the petitioners' Motion
Article 202 of the Revised Penal Code offers no guidelines or any other
to Quash is set aside and the said court is ordered to dismiss the subject
reasonable indicators to differentiate those who have no visible means
criminal cases against the petitioners pending before it.
of support by force of circumstance and those who choose to loiter
about and bum around, who are the proper subjects of vagrancy application of the void-for-vagueness doctrine to criminal statutes in
legislation, it cannot pass a judicial scrutiny of its constitutionality.[11] appropriate cases. The Court therein held:

At the outset, we declare that under these terms, the opinions of the
Hence, this petition for review on certiorari raising the sole issue of:
dissent which seek to bring to the fore the purported ambiguities of a
long list of provisions in Republic Act No. 8189 can be deemed as a
WHETHER THE REGIONAL TRIAL COURT COMMITTED A
facial challenge. An appropriate "as applied" challenge in the instant
REVERSIBLE ERROR IN DECLARING UNCONSTITUTIONAL
Petition should be limited only to Section 45 (j) in relation to Sections
ARTICLE 202 (2) OF THE REVISED PENAL CODE[12]
10 (g) and (j) of Republic Act No. 8189 - the provisions upon which
petitioners are charged. An expanded examination of the law covering
Petitioner argues that every statute is presumed valid and all reasonable
provisions which are alien to petitioners' case would be antagonistic to
doubts should be resolved in favor of its constitutionality; that, citing
the rudiment that for judicial review to be exercised, there must be an
Romualdez v. Sandiganbayan,[13] the overbreadth and vagueness doctrines
existing case or controversy that is appropriate or ripe for
have special application to free-speech cases only and are not
determination, and not conjectural or anticipatory.[18]
appropriate for testing the validity of penal statutes; that respondents
failed to overcome the presumed validity of the statute, failing to prove
The first statute punishing vagrancy - Act No. 519 - was modeled after
that it was vague under the standards set out by the Courts; and that the
American vagrancy statutes and passed by the Philippine Commission
State may regulate individual conduct for the promotion of public
in 1902. The Penal Code of Spain of 1870 which was in force in this
welfare in the exercise of its police power.
country up to December 31, 1931 did not contain a provision on
vagrancy.[19] While historically an Anglo-American concept of crime
On the other hand, respondents argue against the limited application of
prevention, the law on vagrancy was included by the Philippine
the overbreadth and vagueness doctrines. They insist that Article 202
legislature as a permanent feature of the Revised Penal Code in Article
(2) on its face violates the constitutionally-guaranteed rights to due
202 thereof which, to repeat, provides:
process and the equal protection of the laws; that the due process
vagueness standard, as distinguished from the free speech vagueness
ART. 202. Vagrants and prostitutes; penalty. - The following are vagrants:
doctrine, is adequate to declare Article 202 (2) unconstitutional and void
on its face; and that the presumption of constitutionality was adequately
1. Any person having no apparent means of subsistence, who has the
overthrown.
physical ability to work and who neglects to apply himself or herself to
some lawful calling;
The Court finds for petitioner.

2. Any person found loitering about public or semi-public buildings or


The power to define crimes and prescribe their corresponding penalties
places, or tramping or wandering about the country or the streets
is legislative in nature and inherent in the sovereign power of the state
without visible means of support;
to maintain social order as an aspect of police power. The legislature
may even forbid and penalize acts formerly considered innocent and
3. Any idle or dissolute person who lodges in houses of ill-fame;
lawful provided that no constitutional rights have been abridged.[14]
ruffians or pimps and those who habitually associate with prostitutes;
However, in exercising its power to declare what acts constitute a crime,
the legislature must inform the citizen with reasonable precision what
4. Any person who, not being included in the provisions of other
acts it intends to prohibit so that he may have a certain understandable
articles of this Code, shall be found loitering in any inhabited or
rule of conduct and know what acts it is his duty to avoid.[15] This
uninhabited place belonging to another without any lawful or justifiable
requirement has come to be known as the void-for-vagueness
purpose;
doctrine which states that "a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence
5. Prostitutes.
must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."[16]
For the purposes of this article, women who, for money or profit,
habitually indulge in sexual intercourse or lascivious conduct, are
In Spouses Romualdez v. COMELEC,[17] the Court recognized the
deemed to be prostitutes.
construes the ordinance not to make criminal one night's wandering,
Any person found guilty of any of the offenses covered by this article Johnson v. State, 202 So.2d at 855, only the "habitual" wanderer or, as
shall be punished by arresto menor or a fine not exceeding 200 pesos, and the ordinance describes it, "common night walkers." We know,
in case of recidivism, by arresto mayor in its medium period to prision however, from experience that sleepless people often walk at night,
correccional in its minimum period or a fine ranging from 200 to 2,000 perhaps hopeful that sleep-inducing relaxation will result.
pesos, or both, in the discretion of the court.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once
that "loafing" was a national virtue in his Commonwealth, and that it
In the instant case, the assailed provision is paragraph (2), which defines
should be encouraged. It is, however, a crime in Jacksonville.
a vagrant as any person found loitering about public or semi-public
buildings or places, or tramping or wandering about the country or the
xxxx
streets without visible means of support. This provision was based on
the second clause of Section 1 of Act No. 519 which defined "vagrant"
Persons "wandering or strolling" from place to place have been extolled
as "every person found loitering about saloons or dramshops or gambling houses, or
by Walt Whitman and Vachel Lindsay. The qualification "without any
tramping or straying through the country without visible means of support." The
lawful purpose or object" may be a trap for innocent acts. Persons
second clause was essentially retained with the modification that the
"neglecting all lawful business and habitually spending their time by
places under which the offense might be committed is now expressed in
frequenting . . . places where alcoholic beverages are sold or served"
general terms - public or semi-public places.
would literally embrace many members of golf clubs and city clubs.

The Regional Trial Court, in asserting the unconstitutionality of Article


Walkers and strollers and wanderers may be going to or coming from a
202 (2), take support mainly from the U.S. Supreme Court's opinion in
burglary. Loafers or loiterers may be "casing" a place for a holdup.
the Papachristou v. City of Jacksonville[20] case, which in essence declares:
Letting one's wife support him is an intra-family matter, and normally of
no concern to the police. Yet it may, of course, be the setting for
Living under a rule of law entails various suppositions, one of which is
numerous crimes.
that "[all persons] are entitled to be informed as to what the State
commands or forbids." Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S.
The difficulty is that these activities are historically part of the amenities
453.
of life as we have known them. They are not mentioned in the
Constitution or in the Bill of Rights. These unwritten amenities have
Lanzetta is one of a well recognized group of cases insisting that the law
been, in part, responsible for giving our people the feeling of
give fair notice of the offending conduct. See Connally v. General
independence and self-confidence, the feeling of creativity. These
Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy
amenities have dignified the right of dissent, and have honored the right
Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In
to be nonconformists and the right to defy submissiveness. They have
the field of regulatory statutes governing business activities, where the
encouraged lives of high spirits, rather than hushed, suffocating silence.
acts limited are in a narrow category, greater leeway is allowed. Boyce
Motor Lines, Inc. v. United States, 342 U. S. 337; United States v.
xxxx
National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo,
332 U. S. 1.
Where the list of crimes is so all-inclusive and generalized as the one in
this ordinance, those convicted may be punished for no more than
The poor among us, the minorities, the average householder, are not in
vindicating affronts to police authority:
business and not alerted to the regulatory schemes of vagrancy laws;
and we assume they would have no understanding of their meaning and
"The common ground which brings such a motley assortment of
impact if they read them. Nor are they protected from being caught in
human troubles before the magistrates in vagrancy-type proceedings is
the vagrancy net by the necessity of having a specific intent to commit
the procedural laxity which permits 'conviction' for almost any kind of
an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor
conduct and the existence of the House of Correction as an easy and
Lines, Inc. v. United States, supra.
convenient dumping-ground for problems that appear to have no other
immediate solution." Foote, Vagrancy-Type Law and Its
The Jacksonville ordinance makes criminal activities which, by modern
Administration, 104 U.Pa.L.Rev. 603, 631.
standards, are normally innocent. "Nightwalking" is one. Florida
Rogues and vagabonds, or dissolute persons who go about begging;
xxxx common gamblers, persons who use juggling or unlawful games or
plays, common drunkards, common night walkers, thieves, pilferers or
pickpockets, traders in stolen property, lewd, wanton and lascivious
Another aspect of the ordinance's vagueness appears when we focus
persons, keepers of gambling places, common railers and brawlers,
not on the lack of notice given a potential offender, but on the effect of
persons wandering or strolling around from place to place without any
the unfettered discretion it places in the hands of the Jacksonville
lawful purpose or object, habitual loafers, disorderly persons, persons
police. Caleb Foote, an early student of this subject, has called the
neglecting all lawful business and habitually spending their time by
vagrancy-type law as offering "punishment by analogy." Such crimes,
frequenting houses of ill fame, gaming houses, or places where alcoholic
though long common in Russia, are not compatible with our
beverages are sold or served, persons able to work but habitually living
constitutional system.
upon the earnings of their wives or minor children shall be deemed
vagrants and, upon conviction in the Municipal Court shall be punished
xxxx
as provided for Class D offenses.

A presumption that people who might walk or loaf or loiter or stroll or


frequent houses where liquor is sold, or who are supported by their Thus, the U.S. Supreme Court in Jacksonville declared the ordinance
wives or who look suspicious to the police are to become future unconstitutional, because such activities or habits as nightwalking,
criminals is too precarious for a rule of law. The implicit presumption in wandering or strolling around without any lawful purpose or
these generalized vagrancy standards -- that crime is being nipped in the object, habitual loafing, habitual spending of time at places where
bud -- is too extravagant to deserve extended treatment. Of course, alcoholic beverages are sold or served, and living upon the
vagrancy statutes are useful to the police. Of course, they are nets earnings of wives or minor children, which are otherwise common
making easy the roundup of so-called undesirables. But the rule of law and normal, were declared illegal. But these are specific acts or
implies equality and justice in its application. Vagrancy laws of the activities not found in Article 202 (2). The closest to Article 202 (2) -
Jacksonville type teach that the scales of justice are so tipped that even- "any person found loitering about public or semi-public buildings or places, or
handed administration of the law is not possible. The rule of law, evenly tramping or wandering about the country or the streets without visible means of
applied to minorities as well as majorities, to the poor as well as the rich, support" - from the Jacksonville ordinance, would be "persons wandering or
is the great mucilage that holds society together.[21] strolling around from place to place without any lawful purpose or object." But
these two acts are still not the same: Article 202 (2) is qualified by
"without visible means of support" while the Jacksonville ordinance
The underlying principles in Papachristou are that: 1) the assailed
prohibits wandering or strolling "without any lawful purpose or object,"
Jacksonville ordinance "fails to give a person of ordinary intelligence fair
which was held by the U.S. Supreme Court to constitute a "trap for
notice that his contemplated conduct is forbidden by the statute;" and
innocent acts."
2) it encourages or promotes opportunities for the application of
discriminatory law enforcement.
Under the Constitution, the people are guaranteed the right to be secure
in their persons, houses, papers and effects against unreasonable
The said underlying principle in Papachristou that the Jacksonville
searches and seizures of whatever nature and for any purpose, and no
ordinance, or Article 202 (2) in this case, fails to give fair notice of what
search warrant or warrant of arrest shall issue except upon probable
constitutes forbidden conduct, finds no application here because under
cause to be determined personally by the judge after examination under
our legal system, ignorance of the law excuses no one from compliance
oath or affirmation of the complainant and the witnesses he may
therewith.[22] This principle is of Spanish origin, and we adopted it to
produce, and particularly describing the place to be searched and the
govern and limit legal conduct in this jurisdiction. Under American law,
persons or things to be seized.[24] Thus, as with any other act or offense,
ignorance of the law is merely a traditional rule that admits of
the requirement of probable cause provides an acceptable limit on
exceptions.[23]
police or executive authority that may otherwise be abused in relation to
the search or arrest of persons found to be violating Article 202 (2). The
Moreover, the Jacksonville ordinance was declared unconstitutional on
fear exhibited by the respondents, echoing Jacksonville, that unfettered
account of specific provisions thereof, which are not found in
discretion is placed in the hands of the police to make an arrest or
Article 202 (2). The ordinance (Jacksonville Ordinance Code § 257)
search, is therefore assuaged by the constitutional requirement of
provided, as follows:
probable cause, which is one less than certainty or proof, but more than
suspicion or possibility.[25] streetsmart bilkers and con artists on the prowl; beggars endlessly pester
and panhandle pedestrians and commuters, posing a health threat and
Evidently, the requirement of probable cause cannot be done away with putting law-abiding drivers and citizens at risk of running them over. All
arbitrarily without pain of punishment, for, absent this requirement, the these happen on the streets and in public places, day or night.
authorities are necessarily guilty of abuse. The grounds of suspicion are
reasonable when, in the absence of actual belief of the arresting officers, The streets must be protected. Our people should never dread having to
the suspicion that the person to be arrested is probably guilty of ply them each day, or else we can never say that we have performed our
committing the offense, is based on actual facts, i.e., supported by task to our brothers and sisters. We must rid the streets of the scourge
circumstances sufficiently strong in themselves to create the probable of humanity, and restore order, peace, civility, decency and morality in
cause of guilt of the person to be arrested. A reasonable suspicion them.
therefore must be founded on probable cause, coupled with good faith
of the peace officers making the arrest.[26] This is exactly why we have public order laws, to which Article 202 (2)
belongs. These laws were crafted to maintain minimum standards of
The State cannot in a cavalier fashion intrude into the persons of its decency, morality and civility in human society. These laws may be
citizens as well as into their houses, papers and effects. The traced all the way back to ancient times, and today, they have also come
constitutional provision sheathes the private individual with an to be associated with the struggle to improve the citizens' quality of life,
impenetrable armor against unreasonable searches and seizures. It which is guaranteed by our Constitution.[28] Civilly, they are covered by
protects the privacy and sanctity of the person himself against unlawful the "abuse of rights" doctrine embodied in the preliminary articles of
arrests and other forms of restraint, and prevents him from being the Civil Code concerning Human Relations, to the end, in part, that
irreversibly cut off from that domestic security which renders the lives any person who willfully causes loss or injury to another in a manner
of the most unhappy in some measure agreeable.[27] that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.[29] This provision is, together with
As applied to the instant case, it appears that the police authorities have the succeeding articles on human relations, intended to embody certain
been conducting previous surveillance operations on respondents prior basic principles "that are to be observed for the rightful relationship
to their arrest. On the surface, this satisfies the probable cause between human beings and for the stability of the social order."[30]
requirement under our Constitution. For this reason, we are not moved
by respondents' trepidation that Article 202 (2) could have been a In civil law, for example, the summary remedy of ejectment is intended
source of police abuse in their case. to prevent criminal disorder and breaches of the peace and to
discourage those who, believing themselves entitled to the possession of
Since the Revised Penal Code took effect in 1932, no challenge has ever the property, resort to force rather than to some appropriate action in
been made upon the constitutionality of Article 202 except now. court to assert their claims.[31] Any private person may abate a public
Instead, throughout the years, we have witnessed the streets and parks nuisance which is specially injurious to him by removing, or if
become dangerous and unsafe, a haven for beggars, harassing "watch- necessary, by destroying the thing which constitutes the same, without
your-car" boys, petty thieves and robbers, pickpockets, swindlers, gangs, committing a breach of the peace, or doing unnecessary injury.[32]
prostitutes, and individuals performing acts that go beyond decency and
morality, if not basic humanity. The streets and parks have become the Criminally, public order laws encompass a whole range of acts - from
training ground for petty offenders who graduate into hardened and public indecencies and immoralities, to public nuisances, to disorderly
battle-scarred criminals. Everyday, the news is rife with reports of conduct. The acts punished are made illegal by their offensiveness to
innocent and hardworking people being robbed, swindled, harassed or society's basic sensibilities and their adverse effect on the quality of life
mauled - if not killed - by the scourge of the streets. Blue collar workers of the people of society. For example, the issuance or making of a
are robbed straight from withdrawing hard-earned money from the bouncing check is deemed a public nuisance, a crime against public
ATMs (automated teller machines); students are held up for having to order that must be abated.[33] As a matter of public policy, the failure to
use and thus exhibit publicly their mobile phones; frail and helpless men turn over the proceeds of the sale of the goods covered by a trust
are mauled by thrill-seeking gangs; innocent passers-by are stabbed to receipt or to return said goods, if not sold, is a public nuisance to be
death by rowdy drunken men walking the streets; fair-looking or pretty abated by the imposition of penal sanctions.[34] Thus, public nuisances
women are stalked and harassed, if not abducted, raped and then killed; must be abated because they have the effect of interfering with the
robbers, thieves, pickpockets and snatchers case streets and parks for comfortable enjoyment of life or property by members of a community.
possible victims; the old are swindled of their life savings by conniving
Article 202 (2) does not violate the equal protection clause; neither does was finally enacted.[37]
it discriminate against the poor and the unemployed. Offenders of
public order laws are punished not for their status, as for being poor or It must not be forgotten that police power is an inherent attribute of
unemployed, but for conducting themselves under such circumstances sovereignty. It has been defined as the power vested by the Constitution
as to endanger the public peace or cause alarm and apprehension in the in the legislature to make, ordain, and establish all manner of
community. Being poor or unemployed is not a license or a justification wholesome and reasonable laws, statutes and ordinances, either with
to act indecently or to engage in immoral conduct. penalties or without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the commonwealth, and for the
Vagrancy must not be so lightly treated as to be considered subjects of the same. The power is plenary and its scope is vast and
constitutionally offensive. It is a public order crime which punishes pervasive, reaching and justifying measures for public health, public
persons for conducting themselves, at a certain place and time which safety, public morals, and the general welfare.[38] As an obvious police
orderly society finds unusual, under such conditions that are repugnant power measure, Article 202 (2) must therefore be viewed in a
and outrageous to the common standards and norms of decency and constitutional light.
morality in a just, civilized and ordered society, as would engender a
justifiable concern for the safety and well-being of members of the WHEREFORE, the petition is GRANTED. The Decision of Branch
community. 11 of the Regional Trial Court of Davao City in Special Civil Case No.
30-500-2004 declaring Article 202, paragraph 2 of the Revised Penal
Instead of taking an active position declaring public order laws Code UNCONSTITUTIONAL is REVERSED and SET ASIDE.
unconstitutional, the State should train its eye on their effective
implementation, because it is in this area that the Court perceives Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and
difficulties. Red light districts abound, gangs work the streets in the wee 115,717-C-2003 thus continue.
hours of the morning, dangerous robbers and thieves ply their trade in
the trains stations, drunken men terrorize law-abiding citizens late at No costs.
night and urinate on otherwise decent corners of our streets. Rugby-
sniffing individuals crowd our national parks and busy intersections. SO ORDERED.
Prostitutes wait for customers by the roadside all around the metropolis,
some even venture in bars and restaurants. Drug-crazed men loiter Chico-Nazario, Velasco, Jr., Peralta, and Bersamin*, JJ., concur.
around dark avenues waiting to pounce on helpless citizens. Dangerous
groups wander around, casing homes and establishments for their next [23] Bryan v. United States (96-8422), 122 F.3d 90. The Court held:
hit. The streets must be made safe once more. Though a man's house is
his castle,[35] outside on the streets, the king is fair game. Petitioner next argues that we must read §924(a)(1)(D) to require
knowledge of the law because of our interpretation of "willfully" in two
The dangerous streets must surrender to orderly society. other contexts. In certain cases involving willful violations of the tax
laws, we have concluded that the jury must find that the defendant was
Finally, we agree with the position of the State that first and foremost, aware of the specific provision of the tax code that he was charged with
Article 202 (2) should be presumed valid and constitutional. When violating. See, e.g., Cheek v. United States, 498 U.S. 192, 201 (1991).
confronted with a constitutional question, it is elementary that every Similarly, in order to satisfy a willful violation in Ratzlaf, we concluded
court must approach it with grave care and considerable caution bearing that the jury had to find that the defendant knew that his structuring of
in mind that every statute is presumed valid and every reasonable doubt cash transactions to avoid a reporting requirement was unlawful. See
should be resolved in favor of its constitutionality.[36] The policy of our 510 U.S., at 138, 149. Those cases, however, are readily distinguishable.
courts is to avoid ruling on constitutional questions and to presume that Both the tax cases and Ratzlaf involved highly technical statutes that
the acts of the political departments are valid in the absence of a clear presented the danger of ensnaring individuals engaged in apparently
and unmistakable showing to the contrary. To doubt is to sustain, this innocent conduct. As a result, we held that these statutes "carv[e] out an
presumption is based on the doctrine of separation of powers which exception to the traditional rule" that ignorance of the law is no excuse
enjoins upon each department a becoming respect for the acts of the and require that the defendant have knowledge of the law. The danger
other departments. The theory is that as the joint act of Congress and of convicting individuals engaged in apparently innocent activity that
the President of the Philippines, a law has been carefully studied, crafted motivated our decisions in the tax cases and Ratzlaf is not present here
and determined to be in accordance with the fundamental law before it because the jury found that this petitioner knew that his conduct was
unlawful.

Thus, the willfulness requirement of §924(a)(1)(D) does not carve out


an exception to the traditional rule that ignorance of the law is no
excuse; knowledge that the conduct is unlawful is all that is required.
(Emphasis supplied)
Supreme Court of the Philippines SENATE COMMITTEE ON PUBLIC SERVICES, ITS
MEMBERS AND CHAIRMAN, THE HONORABLE
EN BANC SENATOR JOKER P. ARROYO, RESPONDENTS.

G.R. NO. 174340, October 17, 2006 DECISION

IN THE MATTER OF THE PETITION FOR ISSUANCE OF SANDOVAL-GUTIERREZ, J.:


WRIT OF HABEAS CORPUS OF CAMILO L. SABIO,
PETITIONER, J. ERMIN ERNEST LOUIE R. MIGUEL, Two decades ago, on February 28, 1986, former President Corazon C.
PETITIONER-RELATOR, VS. HONORABLE SENATOR Aquino installed her regime by issuing Executive Order (E.O.) No. 1,[1]
RICHARD GORDON, IN HIS CAPACITY AS CHAIRMAN, creating the Presidential Commission on Good Government
AND THE HONORABLE MEMBERS OF THE (PCGG). She entrusted upon this Commission the herculean task of
COMMITTEE ON GOVERNMENT CORPORATIONS AND recovering the ill-gotten wealth accumulated by the deposed President
PUBLIC ENTERPRISES AND THE COMMITTEE ON Ferdinand E. Marcos, his family, relatives, subordinates and close
PUBLIC SERVICES OF THE SENATE, HONORABLE associates.[2] Section 4 (b) of E.O. No. 1 provides that: "No member or
SENATOR JUAN PONCE-ENRILE, IN HIS OFFICIAL staff of the Commission shall be required to testify or produce
CAPACITY AS MEMBER, HONORABLE MANUEL VILLAR, evidence in any judicial, legislative or administrative proceeding
SENATE PRESIDENT, SENATE SERGEANT-AT-ARMS, concerning matters within its official cognizance." Apparently, the
AND THE SENATE OF THE PHILIPPINES, purpose is to ensure PCGG's unhampered performance of its task.[3]
RESPONDENTS.
Today, the constitutionality of Section 4(b) is being questioned on the
[G.R. NO. 174318] ground that it tramples upon the Senate's power to conduct legislative
inquiry under Article VI, Section 21 of the 1987 Constitution, which
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT reads:
(PCGG) AND CAMILO L. SABIO, CHAIRMAN, NARCISO S. The Senate or the House of Representatives or any of its respective
NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER AND committees may conduct inquiries in aid of legislation in accordance
NICASIO A. CONTI, COMMISSIONERS, MANUEL ANDAL with its duly published rules of procedure. The rights of persons
AND JULIO JALANDONI, PCGG NOMINEES TO appearing in or affected by such inquiries shall be respected.
PHILCOMSAT HOLDINGS CORPORATION,
The facts are undisputed.
PETITIONERS, VS. RICHARD GORDON, IN HIS CAPACITY
AS CHAIRMAN, AND MEMBERS OF THE COMMITTEE
On February 20, 2006, Senator Miriam Defensor Santiago introduced
ON GOVERNMENT CORPORATIONS AND PUBLIC
Philippine Senate Resolution No. 455 (Senate Res. No. 455),[4]
ENTERPRISES, MEMBERS OF THE COMMITTEE ON
"directing an inquiry in aid of legislation on the anomalous losses
PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, IN
incurred by the Philippines Overseas Telecommunications Corporation
HIS CAPACITY AS MEMBER OF BOTH SAID
(POTC), Philippine Communications Satellite Corporation
COMMITTEES, MANUEL VILLAR, SENATE PRESIDENT,
(PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC)
THE SENATE SERGEANT-AT-ARMS, AND SENATE OF
due to the alleged improprieties in their operations by their respective
THE PHILIPPINES, RESPONDENTS.
Board of Directors."

[G.R. NO. 174177]


The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and
PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G.
entertainment expense of the PHC skyrocketed to P4.3 million, as
BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE,
compared to the previous year's mere P106 thousand;
DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA
ALOBBA, AND JOHNNY TAN, PETITIONERS, VS. SENATE
WHEREAS, some board members established wholly owned PHC
COMMITTEE ON GOVERNMENT CORPORATIONS AND
subsidiary called Telecommunications Center, Inc. (TCI), where PHC
PUBLIC ENTERPRISES, ITS MEMBERS AND CHAIRMAN,
funds are allegedly siphoned; in 18 months, over P73 million had been
THE HONORABLE SENATOR RICHARD GORDON AND
allegedly advanced to TCI without any accountability report given to On August 10, 2006, Senator Gordon issued a Subpoena Ad
PHC and PHILCOMSAT; Testificandum,[8] approved by Senate President Manuel Villar, requiring
Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio
WHEREAS, the Philippine Star, in its 12 February 2002 issue reported Conti, Tereso Javier and Narciso Nario to appear in the public
that the executive committee of Philcomsat has precipitately released hearing scheduled on August 23, 2006 and testify on what they know
P265 million and granted P125 million loan to a relative of an executive relative to the matters specified in Senate Res. No. 455. Similar
committee member; to date there have been no payments given, subpoenae were issued against the directors and officers of Philcomsat
subjecting the company to an estimated interest income loss of P11.25 Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett,
million in 2004; Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin,
Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma
WHEREAS, there is an urgent need to protect the interest of the Kristina Alloba and Johnny Tan.[9]
Republic of the Philippines in the PHC, PHILCOMSAT, and POTC
from any anomalous transaction, and to conserve or salvage any Again, Chairman Sabio refused to appear. In his letter to Senator
remaining value of the government's equity position in these Gordon dated August 18, 2006, he reiterated his earlier position,
corporations from any abuses of power done by their respective board invoking Section 4(b) of E.O. No. 1. On the other hand, the directors
of directors; and officers of Philcomsat Holdings Corporation relied on the position
paper they previously filed, which raised issues on the propriety of
WHEREFORE, be it resolved that the proper Senate Committee legislative inquiry.
shall conduct an inquiry in aid of legislation, on the anomalous
losses incurred by the Philippine Overseas Telecommunications Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the
Corporation (POTC), Philippine Communications Satellite authority of Senator Gordon, sent another notice[10] to Chairman Sabio
Corporation (PHILCOMSAT), and Philcomsat Holdings requiring him to appear and testify on the same subject matter set on
Corporations (PHC) due to the alleged improprieties in the September 6, 2006. The notice was issued "under the same authority
operations by their respective board of directors. of the Subpoena Ad Testificandum previously served upon (him) last 16
August 2006."
Adopted.
Once more, Chairman Sabio did not comply with the notice. He sent a
(Sgd) MIRIAM DEFENSOR SANTIAGO letter[11] dated September 4, 2006 to Senator Gordon reiterating his
reason for declining to appear in the public hearing.
On the same date, February 20, 2006, Senate Res. No. 455 was
submitted to the Senate and referred to the Committee on Accountability of
This prompted Senator Gordon to issue an Order dated September 7,
Public Officers and Investigations and Committee on Public Services. However,
2006 requiring Chairman Sabio and Commissioners Abcede, Conti,
on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it
Javier and Nario to show cause why they should not be cited in
was transferred to the Committee on Government Corporations and Public
contempt of the Senate. On September 11, 2006, they submitted to the
Enterprises.[5]
Senate their Compliance and Explanation,[12] which partly reads:
Doubtless, there are laudable intentions of the subject inquiry in
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority
aid of legislation. But the rule of law requires that even the best
of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the
intentions must be carried out within the parameters of the Constitution
PCGG, one of the herein petitioners, inviting him to be one of the
and the law. Verily, laudable purposes must be carried out by legal
resource persons in the public meeting jointly conducted by the
methods. (Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No.
Committee on Government Corporations and Public Enterprises and Committee on
163193, June 15, 2004])
Public Services. The purpose of the public meeting was to deliberate on
Senate Res. No. 455.[6]
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it
explicitly provides:
On May 9, 2006, Chairman Sabio declined the invitation because of
No member or staff of the Commission shall be required to testify
prior commitment.[7] At the same time, he invoked Section 4(b) of
or produce evidence in any judicial legislative or administrative
E.O. No. 1 earlier quoted.
proceeding concerning matters within its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation influence being made to bear on the ultimate judgment of the
on the power of legislative inquiry, and a recognition by the State of the Sandiganbayan can not be discounted.
need to provide protection to the PCGG in order to ensure the
x x x x x x
unhampered performance of its duties under its charter. E.O. No. 1 is a
law, Section 4(b) of which had not been amended, repealed or revised in
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS
any way.
that the Commission decided not to attend the Senate inquiry to testify
and produce evidence thereat.
To say the least, it would require both Houses of Congress and
Unconvinced with the above Compliance and Explanation, the
Presidential fiat to amend or repeal the provision in controversy. Until
Committee on Government Corporations and Public Enterprises and the
then, it stands to be respected as part of the legal system in this
Committee on Public Services issued an Order[13] directing Major General
jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88,
Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio
October 12, 1995: Obedience to the rule of law forms the bedrock of our system of
and his Commissioners under arrest for contempt of the Senate. The
justice. If judges, under the guise of religious or political beliefs were allowed to roam
Order bears the approval of Senate President Villar and the
unrestricted beyond boundaries within which they are required by law to exercise the
majority of the Committees' members.
duties of their office, then law becomes meaningless. A government of laws, not of
men excludes the exercise of broad discretionary powers by those acting under its
On September 12, 2006, at around 10:45 a.m., Major General Balajadia
authority. Under this system, judges are guided by the Rule of Law, and ought to
arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
'protect and enforce it without fear or favor,' 4 [Act of Athens (1955)] resist
Mandaluyong City and brought him to the Senate premises where he
encroachments by governments, political parties, or even the interference of their own
was detained.
personal beliefs.)

x x x x x x
Hence, Chairman Sabio filed with this Court a petition for habeas corpus
Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19,
against the Senate Committee on Government Corporations and Public
2006 pointed out that the anomalous transactions referred to in the P.S.
Enterprises and Committee on Public Services, their Chairmen, Senators
Resolution No. 455 are subject of pending cases before the regular
Richard Gordon and Joker P. Arroyo and Members. The case was
courts, the Sandiganbayan and the Supreme Court (Pending cases
docketed as G.R. No. 174340.
include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No.
89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier,
al.; c. Philippine Communications Satellite Corporation v. Manuel D. Andal,
and the PCGG�s nominees to Philcomsat Holdings Corporation,
Civil Case No. 06-095, RTC, Branch 61, Makati City; d.
Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari
Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings
and prohibition against the same respondents, and also against Senate
Corporation, et al., Civil Case No. 04-1049) for which reason they may not
President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-
be able to testify thereon under the principle of sub judice. The laudable
Arms, and the entire Senate. The case was docketed as G.R. No.
objectives of the PCGG's functions, recognized in several cases decided
174318.
by the Supreme Court, of the PCGG will be put to naught if its
recovery efforts will be unduly impeded by a legislative investigation of
Meanwhile, Philcomsat Holdings Corporation and its officers and
cases that are already pending before the Sandiganbayan and trial courts.
directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San
Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784
Johnny Tan filed a petition for certiorari and prohibition against the
[1991]) the Honorable Supreme Court held:
Senate Committees on Government Corporations and Public Enterprises and
"...[T]he issues sought to be investigated by the respondent Committee
Public Services, their Chairmen, Senators Gordon and Arroyo, and
is one over which jurisdiction had been acquired by the
Members. The case was docketed as G.R. No. 174177.
Sandiganbayan. In short, the issue has been pre-empted by that
court. To allow the respondent Committee to conduct its own
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for
investigation of an issue already before the Sandigabayan would not
certiorari and prohibition) Chairman Sabio, Commissioners Abcede,
only pose the possibility of conflicting judgments between a legislative
Conti, Nario, and Javier; and the PCGG's nominees Andal and
committee and a judicial tribunal, but if the Committee's judgment were
Jalandoni alleged: first, respondent Senate Committees disregarded
to be reached before that of the Sandiganbayan, the possibility of its
Section 4(b) of E.O. No. 1 without any justifiable reason; second, the
inquiries conducted by respondent Senate Committees are not in aid of the 1987 Constitution granting respondent Senate Committees the
legislation; third, the inquiries were conducted in the absence of duly power of legislative inquiry. It reads:
published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; The Senate or the House of Representatives or any of its
and fourth, respondent Senate Committees are not vested with the power respective committees may conduct inquiries in aid of legislation
of contempt. in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and be respected.
its directors and officers alleged: first, respondent Senate Committees
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such
have no jurisdiction over the subject matter stated in Senate Res. No.
power of legislative inquiry by exempting all PCGG members or staff
455; second, the same inquiry is not in accordance with the Senate's Rules
from testifying in any judicial, legislative or administrative proceeding,
of Procedure Governing Inquiries in Aid of Legislation; third, the subpoenae
thus:
against the individual petitioners are void for having been issued
No member or staff of the Commission shall be required to testify
without authority; fourth, the conduct of legislative inquiry pursuant to
or produce evidence in any judicial, legislative or administrative
Senate Res. No. 455 constitutes undue encroachment by respondents
proceeding concerning matters within its official cognizance.
into justiciable controversies over which several courts and tribunals
To determine whether there exists a clear and unequivocal repugnancy
have already acquired jurisdiction; and fifth, the subpoenae violated
between the two quoted provisions that warrants a declaration that
petitioners' rights to privacy and against self-incrimination.
Section 4(b) has been repealed by the 1987 Constitution, a brief
consideration of the Congress' power of inquiry is imperative.
In their Consolidated Comment, the above-named respondents
countered: first, the issues raised in the petitions involve political
The Congress' power of inquiry has been recognized in foreign
questions over which this Court has no jurisdiction; second, Section 4(b)
jurisdictions long before it reached our shores through McGrain v.
has been repealed by the Constitution; third, respondent Senate
Daugherty,[15] cited in Arnault v. Nazareno.[16] In those earlier days,
Committees are vested with contempt power; fourth, Senate's Rules of
American courts considered the power of inquiry as inherent in the
Procedure Governing Inquiries in Aid of Legislation have been duly
power to legislate. The 1864 case of Briggs v. MacKellar[17] explains the
published; fifth, respondents have not violated any civil right of the
breath and basis of the power, thus:
individual petitioners, such as their (a) right to privacy; and (b) right
Where no constitutional limitation or restriction exists, it is competent
against self-incrimination; and sixth, the inquiry does not constitute
for either of the two bodies composing the legislature to do, in their
undue encroachment into justiciable controversies.
separate capacity, whatever may be essential to enable them to
legislate....It is well-established principle of this parliamentary law, that
During the oral arguments held on September 21, 2006, the parties were
either house may institute any investigation having reference to its
directed to submit simultaneously their respective memoranda within a
own organization, the conduct or qualification of its members, its
non-extendible period of fifteen (15) days from date. In the meantime,
proceedings, rights, or privileges or any matter affecting the public
per agreement of the parties, petitioner Chairman Sabio was allowed to
interest upon which it may be important that it should have exact
go home. Thus, his petition for habeas corpus has become moot. The
information, and in respect to which it would be competent for it
parties also agreed that the service of the arrest warrants issued against
to legislate. The right to pass laws, necessarily implies the right
all petitioners and the proceedings before the respondent Senate
to obtain information upon any matter which may become the
Committees are suspended during the pendency of the instant cases.[14]
subject of a law. It is essential to the full and intelligent exercise
of the legislative function....In American legislatures the
Crucial to the resolution of the present petitions is the fundamental
investigation of public matters before committees, preliminary to
issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987
legislation, or with the view of advising the house appointing the
Constitution. On this lone issue hinges the merit of the contention of
committee is, as a parliamentary usage, well established as it is in
Chairman Sabio and his Commissioners that their refusal to appear
England, and the right of either house to compel witnesses to appear
before respondent Senate Committees is justified. With the resolution
and testify before its committee, and to punish for disobedience has
of this issue, all the other issues raised by the parties have become
been frequently enforced....The right of inquiry, I think, extends to
inconsequential.
other matters, in respect to which it may be necessary, or may be
deemed advisable to apply for legislative aid.
Perched on one arm of the scale of justice is Article VI, Section 21 of
Remarkably, in Arnault, this Court adhered to a similar theory. Citing statutes.[22] It even extends "to government agencies created by
McGrain, it recognized that the power of inquiry is "an essential and Congress and officers whose positions are within the power of
appropriate auxiliary to the legislative function," thus: Congress to regulate or even abolish."[23] PCGG belongs to this
Although there is no provision in the "Constitution expressly investing class.
either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions Certainly, a mere provision of law cannot pose a limitation to the broad
advisedly and effectively, such power is so far incidental to the power of Congress, in the absence of any constitutional basis.
legislative function as to be implied. In other words, the power of
inquiry - with process to enforce it - is an essential and Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1
appropriate auxiliary to the legislative function. A legislative body of the Constitution stating that: "Public office is a public trust. Public officers
cannot legislate wisely or effectively in the absence of information and employees must at all times be accountable to the people, serve them with utmost
respecting the conditions which the legislation is intended to responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and
affect or change; and where the legislation body does not itself lead modest lives."
possess the requisite information - which is not infrequently true -
recourse must be had to others who possess it." The provision presupposes that since an incumbent of a public office is
invested with certain powers and charged with certain duties pertinent
Dispelling any doubt as to the Philippine Congress' power of inquiry,
to sovereignty, the powers so delegated to the officer are held in trust
provisions on such power made their maiden appearance in Article
for the people and are to be exercised in behalf of the government
VIII, Section 12 of the 1973 Constitution.[18] Then came the 1987
or of all citizens who may need the intervention of the officers.
Constitution incorporating the present Article VI, Section 12. What
Such trust extends to all matters within the range of duties
was therefore implicit under the 1935 Constitution, as influenced by
pertaining to the office. In other words, public officers are but the
American jurisprudence, became explicit under the 1973 and 1987
servants of the people, and not their rulers.[24]
Constitutions.[19]

Section 4(b), being in the nature of an immunity, is inconsistent with


Notably, the 1987 Constitution recognizes the power of investigation,
the principle of public accountability. It places the PCGG
not just of Congress, but also of "any of its committee." This is
members and staff beyond the reach of courts, Congress and other
significant because it constitutes a direct conferral of investigatory
administrative bodies. Instead of encouraging public
power upon the committees and it means that the mechanisms which
accountability, the same provision only institutionalizes
the Houses can take in order to effectively perform its investigative
irresponsibility and non-accountability. In Presidential Commission on
function are also available to the committees.[20]
Good Government v. Peña,[25] Justice Florentino P. Feliciano characterized
as "obiter" the portion of the majority opinion barring, on the basis of
It can be said that the Congress' power of inquiry has gained more solid
Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against
existence and expansive construal. The Court's high regard to such
the PCGG and its Commissioners. He eloquently opined:
power is rendered more evident in Senate v. Ermita,[21] where it
The above underscored portions are, it is respectfully submitted, clearly
categorically ruled that "the power of inquiry is broad enough to
obiter. It is important to make clear that the Court is not here
cover officials of the executive branch." Verily, the Court reinforced
interpreting, much less upholding as valid and constitutional, the
the doctrine in Arnault that "the operation of government, being a
literal terms of Section 4 (a), (b) of Executive Order No.1. If
legitimate subject for legislation, is a proper subject for
Section 4 (a) were given its literal import as immunizing the PCGG or
investigation" and that "the power of inquiry is co-extensive with
any member thereof from civil liability "for anything done or omitted in the
the power to legislate."
discharge of the task contemplated by this Order," the constitutionality
of Section 4 (a) would, in my submission, be open to most serious
Considering these jurisprudential instructions, we find Section 4(b)
doubt. For so viewed, Section 4 (a) would institutionalize the
directly repugnant with Article VI, Section 21. Section 4(b) exempts
irresponsibility and non-accountability of members and staff of the
the PCGG members and staff from the Congress' power of
PCGG, a notion that is clearly repugnant to both the 1973 and 1987
inquiry. This cannot be countenanced. Nowhere in the Constitution is
Constitution and a privileged status not claimed by any other official of
any provision granting such exemption. The Congress' power of
the Republic under the 1987 Constitution. x x x.
inquiry, being broad, encompasses everything that concerns the
x x x
administration of existing laws as well as proposed or possibly needed
participation will largely depend on the information gathered and made
It would seem constitutionally offensive to suppose that a known to them. In other words, the right to information really goes
member or staff member of the PCGG could not be required to hand-in-hand with the constitutional policies of full public disclosure
testify before the Sandiganbayan or that such members were and honesty in the public service. It is meant to enhance the widening
exempted from complying with orders of this Court. role of the citizenry in governmental decision-making as well as in
checking abuse in the government.[28] The cases of Tañada v. Tuvera[29]
Chavez v. Sandiganbayan[26] reiterates the same view. Indeed, Section 4(b)
and Legaspi v. Civil Service Commission[30] have recognized a citizen's
has been frowned upon by this Court even before the filing of the
interest and personality to enforce a public duty and to bring an action
present petitions.
to compel public officials and employees to perform that duty.

Corollarily, Section 4(b) also runs counter to the following


Section 4(b) limits or obstructs the power of Congress to secure from
constitutional provisions ensuring the people's access to information:
PCGG members and staff information and other data in aid of its
Article II, Section 28
power to legislate. Again, this must not be countenanced. In Senate v.
Ermita,[31] this Court stressed:
Subject to reasonable conditions prescribed by law, the State adopts and
To the extent that investigations in aid of legislation are generally
implements a policy of full public disclosure of all its transactions
conducted in public, however, any executive issuance tending to
involving public interest.
unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being
Article III, Section 7
presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information
The right of the people to information on matters of public concern
which they can use in formulating their own opinions on the matter
shall be recognized. Access to official records, and to documents, and
before Congress - opinions which they can then communicate to their
papers pertaining to official acts, transactions, or decisions, as well as to
representatives and other government officials through the various legal
government research data used as basis for policy development, shall be
means allowed by their freedom of expression.
afforded the citizen, subject to such limitations as may be provided by
law. A statute may be declared unconstitutional because it is not within the
legislative power to enact; or it creates or establishes methods or
These twin provisions of the Constitution seek to promote transparency
forms that infringe constitutional principles; or its purpose or effect
in policy-making and in the operations of the government, as well as
violates the Constitution or its basic principles.[32] As shown in the
provide the people sufficient information to enable them to exercise
above discussion, Section 4(b) is inconsistent with Article VI, Section
effectively their constitutional rights. Armed with the right information,
21 (Congress' power of inquiry), Article XI, Section 1 (principle of
citizens can participate in public discussions leading to the formulation
public accountability), Article II, Section 28 (policy of full disclosure)
of government policies and their effective implementation. In Valmonte
and Article III, Section 7 (right to public information).
v. Belmonte, Jr.[27] the Court explained that an informed citizenry is
essential to the existence and proper functioning of any democracy,
Significantly, Article XVIII, Section 3 of the Constitution provides:
thus:
All existing laws, decrees, executive orders, proclamations, letters of
An essential element of these freedoms is to keep open a continuing
instructions, and other executive issuances not inconsistent with this
dialogue or process of communication between the government and the
Constitution shall remain operative until amended, repealed, or
people. It is in the interest of the State that the channels for free
revoked.
political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. Yet, this open dialogue The clear import of this provision is that all existing laws, executive
can be effective only to the extent that the citizenry is informed and orders, proclamations, letters of instructions and other executive
thus able to formulate its will intelligently. Only when the participants issuances inconsistent or repugnant to the Constitution are repealed.
in the discussion are aware of the issues and have access to information
relating thereto can such bear fruit. Jurisprudence is replete with decisions invalidating laws, decrees,
executive orders, proclamations, letters of instructions and other
Consequently, the conduct of inquiries in aid of legislation is not only
executive issuances inconsistent with the Constitution. In Pelaez v.
intended to benefit Congress but also the citizenry. The people are
Auditor General,[33] the Court considered repealed Section 68 of the
equally concerned with this proceeding and have the right to participate
Revised Administrative Code of 1917 authorizing the Executive to
therein in order to protect their interests. The extent of their
change the seat of the government of any subdivision of local With his admission, Chairman Sabio is not fully convinced that he and
governments, upon the approval of the 1935 Constitution. Section 68 his Commissioners are shielded from testifying before respondent
was adjudged incompatible and inconsistent with the Constitutional Senate Committees by Section 4(b) of E.O. No. 1. In effect, his
grant of limited executive supervision over local governments. In argument that the said provision exempts him and his co-respondent
Islamic Da'wah Council of the Philippines, Inc., v. Office of the Executive Commissioners from testifying before respondent Senate Committees
Secretary,[34] the Court declared Executive Order No. 46, entitled concerning Senate Res. No. 455 utterly lacks merit.
"Authorizing the Office on Muslim Affairs to Undertake Philippine Halal
Certification," void for encroaching on the religious freedom of Incidentally, an argument repeated by Chairman Sabio is that
Muslims. In The Province of Batangas v. Romulo,[35] the Court declared respondent Senate Committees have no power to punish him and his
some provisions of the General Appropriations Acts of 1999, 2000 and Commissioners for contempt of the Senate.
2001 unconstitutional for violating the Constitutional precept on local
autonomy. And in Ople v. Torres,[36] the Court likewise declared The argument is misleading.
unconstitutional Administrative Order No. 308, entitled "Adoption of a
National Computerized Identification Reference System," for being violative of Article VI, Section 21 provides:
the right to privacy protected by the Constitution. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
These Decisions, and many others, highlight that the Constitution is the in accordance with its duly published rules of procedure. The
highest law of the land. It is "the basic and paramount law to which rights of persons appearing in or affected by such inquiries shall
all other laws must conform and to which all persons, including be respected.
the highest officials of the land, must defer. No act shall be valid,
It must be stressed that the Order of Arrest for "contempt of Senate
however noble its intentions, if it conflicts with the
Committees and the Philippine Senate" was approved by Senate
Constitution."[37] Consequently, this Court has no recourse but to
President Villar and signed by fifteen (15) Senators. From this, it
declare Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution.
can be concluded that the Order is under the authority, not only of the
respondent Senate Committees, but of the entire Senate.
Significantly, during the oral arguments on September 21, 2006,
Chairman Sabio admitted that should this Court rule that Section 4(b) is
At any rate, Article VI, Section 21 grants the power of inquiry not only
unconstitutional or that it does not apply to the Senate, he will answer
to the Senate and the House of Representatives, but also to any of their
the questions of the Senators, thus:
respective committees. Clearly, there is a direct conferral of power
CHIEF JUSTICE PANGANIBAN:
to the committees. Father Bernas, in his Commentary on the 1987
Constitution, correctly pointed out its significance:
Okay. Now, if the Supreme Court rules that Sec. 4(b) is
It should also be noted that the Constitution explicitly recognizes the
unconstitutional or that it does not apply to the Senate, will you answer
power of investigation not just of Congress but also of "any of its
the questions of the Senators?
committees." This is significant because it constitutes a direct
conferral of investigatory power upon the committees and it
CHAIRMAN SABIO:
means that the means which the Houses can take in order to
effectively perform its investigative function are also available to
Your Honor, my father was a judge, died being a judge. I was here in
the Committees.[38]
the Supreme Court as Chief of Staff of Justice Feria. I would definitely
This is a reasonable conclusion. The conferral of the legislative power
honor the Supreme Court and the rule of law.
of inquiry upon any committee of Congress must carry with it all
powers necessary and proper for its effective discharge. Otherwise,
CHIEF JUSTICE PANGANIBAN:
Article VI, Section 21 will be meaningless. The indispensability and
usefulness of the power of contempt in a legislative inquiry is
You will answer the questions of the Senators if we say that?
underscored in a catena of cases, foreign and local.

CHAIRMAN SABIO:
In the 1821 case of Anderson v. Dunn,[39] the function of the Houses of
Congress with respect to the contempt power was likened to that of a
Yes, Your Honor. That is the law already as far as I am concerned.
court, thus:
...But the court in its reasoning goes beyond this, and though the authority and punishes contempts thereof. The contempt power of the
grounds of the decision are not very clearly stated, we take them to be: legislature is, therefore, sui generis x x x.
that there is in some cases a power in each House of Congress to
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat
punish for contempt; that this power is analogous to that
Holdings Corporation and its directors and officers, this Court holds
exercised by courts of justice, and that it being the well
that the respondent Senate Committees' inquiry does not violate their
established doctrine that when it appears that a prisoner is held
right to privacy and right against self-incrimination.
under the order of a court of general jurisdiction for a contempt of
its authority, no other court will discharge the prisoner or make
One important limitation on the Congress' power of inquiry is that "the
further inquiry into the cause of his commitment. That this is the
rights of persons appearing in or affected by such inquiries shall
general rule...as regards the relation of one court to another must be
be respected." This is just another way of saying that the power of
conceded.
inquiry must be "subject to the limitations placed by the Constitution
In McGrain,[40] the U.S. Supreme Court held: "Experience has shown on government action." As held in Barenblatt v. United States,[45] "the
that mere requests for such information are often unavailing, and Congress, in common with all the other branches of the
also that information which is volunteered is not always accurate Government, must exercise its powers subject to the limitations
or complete; so some means of compulsion is essential to obtain placed by the Constitution on governmental action, more
what is needed." The Court, in Arnault v. Nazareno,[41] sustained the particularly in the context of this case, the relevant limitations of
Congress' power of contempt on the basis of this observation. the Bill of Rights."

In Arnault v. Balagtas,[42] the Court further explained that the contempt First is the right to privacy.
power of Congress is founded upon reason and policy and that the
power of inquiry will not be complete if for every contumacious act, Zones of privacy are recognized and protected in our laws.[46] Within
Congress has to resort to judicial interference, thus: these zones, any form of intrusion is impermissible unless excused by
The principle that Congress or any of its bodies has the power to law and in accordance with customary legal process. The meticulous
punish recalcitrant witnesses is founded upon reason and policy. Said regard we accord to these zones arises not only from our conviction
power must be considered implied or incidental to the exercise of that the right to privacy is a "constitutional right" and "the right most valued
legislative power. How could a legislative body obtain the by civilized men,"[47] but also from our adherence to the Universal
knowledge and information on which to base intended legislation Declaration of Human Rights which mandates that, "no one shall be
if it cannot require and compel the disclosure of such knowledge subjected to arbitrary interference with his privacy" and "everyone has the right to the
and information if it is impotent to punish a defiance of its power protection of the law against such interference or attacks."[48]
and authority? When the framers of the Constitution adopted the
principle of separation of powers, making each branch supreme Our Bill of Rights, enshrined in Article III of the Constitution, provides
within the realm of its respective authority, it must have intended at least two guarantees that explicitly create zones of privacy. It
each department's authority to be full and complete, highlights a person's "right to be let alone" or the "right to determine what, how
independently of the other's authority or power. And how could much, to whom and when information about himself shall be disclosed."[49] Section
the authority and power become complete if for every act of 2 guarantees "the right of the people to be secure in their
refusal, every act of defiance, every act of contumacy against it, persons, houses, papers and effects against unreasonable
the legislative body must resort to the judicial department for the searches and seizures of whatever nature and for any purpose."
appropriate remedy, because it is impotent by itself to punish or Section 3 renders inviolable the "privacy of communication and
deal therewith, with the affronts committed against its authority correspondence" and further cautions that "any evidence
or dignity.[43] obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of
Dumaguete,[44] the Court characterized contempt power as a matter of
In evaluating a claim for violation of the right to privacy, a court must
self-preservation, thus:
determine whether a person has exhibited a reasonable expectation of
The exercise by the legislature of the contempt power is a matter of
privacy and, if so, whether that expectation has been violated by
self-preservation as that branch of the government vested with the
unreasonable government intrusion.[50] Applying this determination to
legislative power, independently of the judicial branch, asserts its
these cases, the important inquiries are: first, did the directors and officers of
Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and this right maybe invoked by the said directors and officers of
second, did the government violate such expectation? Philcomsat Holdings Corporation only when the incriminating
question is being asked, since they have no way of knowing
The answers are in the negative. Petitioners were invited in the Senate's in advance the nature or effect of the questions to be asked of
public hearing to deliberate on Senate Res. No. 455, particularly "on the them."[55] That this right may possibly be violated or abused is no
anomalous losses incurred by the Philippine Overseas ground for denying respondent Senate Committees their power of
Telecommunications Corporation (POTC), Philippine inquiry. The consolation is that when this power is abused, such issue
Communications Satellite Corporation (PHILCOMSAT), and may be presented before the courts. At this juncture, what is important
Philcomsat Holdings Corporations (PHC) due to the alleged is that respondent Senate Committees have sufficient Rules to guide
improprieties in the operations by their respective board of them when the right against self-incrimination is invoked. Sec. 19
directors." Obviously, the inquiry focus on petitioners' acts committed reads:
in the discharge of their duties as officers and directors of the said Sec. 19. Privilege Against Self-Incrimination
corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable expectation A witness can invoke his right against self-incrimination only when a
of privacy over matters involving their offices in a corporation question tends to elicit an answer that will incriminate him is
where the government has interest. Certainly, such matters are of propounded to him. However, he may offer to answer any question in
public concern and over which the people have the right to an executive session.
information.
No person can refuse to testify or be placed under oath or affirmation
This goes to show that the right to privacy is not absolute where there is or answer questions before an incriminatory question is asked. His
an overriding compelling state interest. In Morfe v. Mutuc,[51] the invocation of such right does not by itself excuse him from his duty to
Court, in line with Whalen v. Roe,[52] employed the rational basis give testimony.
relationship test when it held that there was no infringement of the
individual's right to privacy as the requirement to disclosure information In such a case, the Committee, by a majority vote of the members
is for a valid purpose, i.e., to curtail and minimize the opportunities for present there being a quorum, shall determine whether the right has
official corruption, maintain a standard of honesty in public service, and been properly invoked. If the Committee decides otherwise, it shall
promote morality in public administration.[53] In Valmonte v. Belmonte,[54] resume its investigation and the question or questions previously
the Court remarked that as public figures, the Members of the former refused to be answered shall be repeated to the witness. If the latter
Batasang Pambansa enjoy a more limited right to privacy as compared continues to refuse to answer the question, the Committee may punish
to ordinary individuals, and their actions are subject to closer him for contempt for contumacious conduct.
scrutiny. Taking this into consideration, the Court ruled that the right
The same directors and officers contend that the Senate is barred from
of the people to access information on matters of public concern
inquiring into the same issues being litigated before the Court of
prevails over the right to privacy of financial transactions.
Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation provide that the
Under the present circumstances, the alleged anomalies in the
filing or pendency of any prosecution of criminal or administrative
PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
action should not stop or abate any inquiry to carry out a legislative
conspiratorial participation of the PCGG and its officials are
purpose.
compelling reasons for the Senate to exact vital information from the
directors and officers of Philcomsat Holdings Corporations, as well as
Let it be stressed at this point that so long as the constitutional rights
from Chairman Sabio and his Commissioners to aid it in crafting the
of witnesses, like Chairman Sabio and his Commissioners, will be
necessary legislation to prevent corruption and formulate remedial
respected by respondent Senate Committees, it their duty to cooperate
measures and policy determination regarding PCGG's efficacy. There
with them in their efforts to obtain the facts needed for intelligent
being no reasonable expectation of privacy on the part of those
legislative action. The unremitting obligation of every citizen is to
directors and officers over the subject covered by Senate Res. No. 455,
respond to subpoenae, to respect the dignity of the Congress and its
it follows that their right to privacy has not been violated by respondent
Committees, and to testify fully with respect to matters within the realm
Senate Committees.
of proper investigation.

Anent the right against self-incrimination, it must be emphasized that


In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo
Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel
Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings
Corporation, as well as its directors and officers, must comply with the
Subpoenae Ad Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative to Senate
Resolution No. 455.

WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is


DISMISSED, for being moot. The petitions in G.R Nos. 174318 and
174177 are likewise DISMISSED.

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987


Constitution. Respondent Senate Committees' power of inquiry relative
to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio
and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and
Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's
nominees to Philcomsat Holdings Corporation, as well as its directors
and officers, petitioners in G.R. No. 174177, are ordered to comply
with the Subpoenae Ad Testificandum issued by respondent Senate
Committees directing them to appear and testify in public hearings
relative to Senate Resolution No. 455.

SO ORDERED.

Panganiban, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez,


Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, and Velasco, Jr.,
JJ., concur.
Puno and Tinga, JJ., in the result.
Corona, J., no part.

[1] E.O. No. 1 was issued by Former President Aquino in the exercise of
her legislative power under the Provisional (Freedom)
Constitution. Thus, it is of the same category and has the same binding
force as a statute. (Agpalo, Statutory Construction, 1998 citing Legaspi v.
Ministry of Finance, 115 SCRA 418 [1982]; Garcia-Padilla v. Ponce Enrile,
G.R. No. 61388, April 20, 1983; Aquino v. Commission on Elections, 62
SCRA 275 [1975] )
Supreme Court of the Philippines ALTERNATIVE LAW GROUPS, INC. (ALG), PETITIONER,
VS. HON. EDUARDO R. ERMITA, IN HIS CAPACITY AS
EN BANC EXECUTIVE SECRETARY, RESPONDENT.

G.R. NO. 169777, April 20, 2006 [G.R.NO. 169834]

SENATE OF THE PHILIPPINES, REPRESENTED BY PDP-LABAN, PETITIONER, VS. EXECUTIVE SECRETARY


FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE EDUARDO R. ERMITA, RESPONDENT.
PRESIDENT, JUAN M. FLAVIER, IN HIS CAPACITY AS
SENATE PRESIDENT PRO TEMPORE, FRANCIS N. [G.R.NO. 171246]
PANGILINAN, IN HIS CAPACITY AS MAJORITY LEADER,
AQUILINO Q. PIMENTEL, JR., IN HIS CAPACITY AS JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,
MINORITY LEADER, SENATORS RODOLFO G. BIAZON, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A.
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P.
ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. ROGELIO V. GARCIA, AND THE INTEGRATED BAR FOR
LACSON, ALFREDO S. LIM, M. A. MADRIGAL, SERGIO THE PHILIPPINES, PETITIONERS, VS. HON. EXECUTIVE
OSMENA III, RALPH G. RECTO, AND MAR ROXAS, SECRETARY EDUARDO R. ERMITA, RESPONDENT.
PETITIONERS, VS. EDUARDO R. ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY AND ALTER-EGO DECISION
OF PRESIDENT GLORIA MACAPAGAL-ARROYO, AND
ANYONE ACTING IN HIS STEAD AND IN BEHALF OF CARPIO MORALES, J.:
THE PRESIDENT OF THE PHILIPPINES, RESPONDENTS.
A transparent government is one of the hallmarks of a truly republican
[G.R.NO. 169659] state. Even in the early history of republican thought, however, it has
been recognized that the head of government may keep certain
BAYAN MUNA REPRESENTED BY DR. REYNALDO information confidential in pursuit of the public interest. Explaining the
LESACA, JR., REP. SATUR OCAMPO, REP. CRISPIN reason for vesting executive power in only one magistrate, a
BELTRAN, REP. RAFAEL MARIANO, REP. LIZA MAZA, distinguished delegate to the U.S. Constitutional Convention said:
REP. TEODORO CASINO, REP. JOEL VIRADOR, COURAGE "Decision, activity, secrecy, and dispatch will generally characterize the
REPRESENTED BY FERDINAND GAITE, AND COUNSELS proceedings of one man, in a much more eminent degree than the
FOR THE DEFENSE OF LIBERTIES (CODAL) proceedings of any greater number; and in proportion as the number is
REPRESENTED BY ATTY. REMEDIOS BALBIN, increased, these qualities will be diminished."[1]
PETITIONERS, VS. EDUARDO ERMITA, IN HIS CAPACITY
AS EXECUTIVE SECRETARY AND ALTER-EGO OF History has been witness, however, to the fact that the power to
PRESIDENT GLORIA MACAPAGAL-ARROYO, withhold information lends itself to abuse, hence, the necessity to guard
RESPONDENT. it zealously.

[G.R.NO.169660] The present consolidated petitions for certiorari and prohibition proffer
that the President has abused such power by issuing Executive Order
FRANCISCO I. CHAVEZ, PETITIONER, VS. EDUARDO R. No. 464 (E.O. 464) last September 28, 2005. They thus pray for its
ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, declaration as null and void for being unconstitutional.
AVELINO J. CRUZ, JR., IN HIS CAPACITY AS SECRETARY
OF DEFENSE, AND GENEROSO S. SENGA, IN HIS In resolving the controversy, this Court shall proceed with the
CAPACITY AS AFP CHIEF OF STAFF, RESPONDENTS. recognition that the issuance under review has come from a co-equal
branch of government, which thus entitles it to a strong presumption of
[G.R.NO. 169667] constitutionality. Once the challenged order is found to be indeed
violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the
Filipino people, must prevail over any issuance of the government that Also invited to the above-said hearing scheduled on September 28 2005
contravenes its mandates. was the AFP Chief of Staff, General Generoso S. Senga who, by letter[3]
dated September 27, 2005, requested for its postponement "due to a
In the exercise of its legislative power, the Senate of the Philippines, pressing operational situation that demands [his] utmost personal
through its various Senate Committees, conducts inquiries or attention" while "some of the invited AFP officers are currently
investigations in aid of legislation which call for, inter alia, the attendance attending to other urgent operational matters."
of officials and employees of the executive department, bureaus, and
offices including those employed in Government Owned and On September 28, 2005, Senate President Franklin M. Drilon received
Controlled Corporations, the Armed Forces of the Philippines (AFP), from Executive Secretary Eduardo R. Ermita a letter[4] dated September
and the Philippine National Police (PNP). 27, 2005 "respectfully request[ing] for the postponement of the hearing
[regarding the NorthRail project] to which various officials of the
On September 21 to 23, 2005, the Committee of the Senate as a whole Executive Department have been invited" in order to "afford said
issued invitations to various officials of the Executive Department for officials ample time and opportunity to study and prepare for the
them to appear on September 29, 2005 as resource speakers in a public various issues so that they may better enlighten the Senate Committee
hearing on the railway project of the North Luzon Railways on its investigation."
Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a Senate President Drilon, however, wrote[5] Executive Secretary Ermita
privilege speech of Senator Juan Ponce Enrile urging the Senate to that the Senators "are unable to accede to [his request]" as it "was sent
investigate the alleged overpricing and other unlawful provisions of the belatedly" and "[a]ll preparations and arrangements as well as notices to
contract covering the North Rail Project. all resource persons were completed [the previous] week."

The Senate Committee on National Defense and Security likewise Senate President Drilon likewise received on September 28, 2005 a
issued invitations[2] dated September 22, 2005 to the following officials letter[6] from the President of the North Luzon Railways Corporation
of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project
Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral be postponed or cancelled until a copy of the report of the UP Law
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Center on the contract agreements relative to the project had been
Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the secured.
AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; On September 28, 2005, the President issued E.O. 464, "Ensuring
and Assistant Commandant, Corps of Cadets of the PMA, Col. Observance of the Principle of Separation of Powers, Adherence to the
Alexander F. Balutan, for them to attend as resource persons in a public Rule on Executive Privilege and Respect for the Rights of Public
hearing scheduled on September 28, 2005 on the following: (1) Privilege Officials Appearing in Legislative Inquiries in Aid of Legislation Under
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 the Constitution, and For Other Purposes,"[7] which, pursuant to
entitled "Bunye has Provided Smoking Gun or has Opened a Can of Section 6 thereof, took effect immediately. The salient provisions of the
Worms that Show Massive Electoral Fraud in the Presidential Election Order are as follows:
of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada SECTION 1. Appearance by Heads of Departments Before Congress. - In
delivered on July 26, 2005 entitled "The Philippines as the Wire- accordance with Article VI, Section 22 of the Constitution and to
Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo implement the Constitutional provisions on the separation of powers
Biazon delivered on August 1, 2005 entitled "Clear and Present between co-equal branches of the government, all heads of
Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana departments of the Executive Branch of the government shall
Consuelo Madrigal - Resolution Directing the Committee on National secure the consent of the President prior to appearing before
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and either House of Congress.
in the National Interest, on the Role of the Military in the So-called
"Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by When the security of the State or the public interest so requires and the
Senator Biazon - Resolution Directing the Committee on National President so states in writing, the appearance shall only be conducted in
Defense and Security to Conduct an Inquiry, in Aid of Legislation, on executive session.
the Wire-Tapping of the President of the Philippines.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. - iv. Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive
(a) Nature and Scope. - The rule of confidentiality based on executive privilege; and
privilege is fundamental to the operation of government and rooted in v. Such other officers as may be determined by the President.
the separation of powers under the Constitution (Almonte vs. Vasquez,
G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the SECTION 3. Appearance of Other Public Officials Before Congress. -
Code of Conduct and Ethical Standards for Public Officials and All public officials enumerated in Section 2 (b) hereof shall secure
Employees provides that Public Officials and Employees shall not use prior consent of the President prior to appearing before either
or divulge confidential or classified information officially known to House of Congress to ensure the observance of the principle of
them by reason of their office and not made available to the public to separation of powers, adherence to the rule on executive privilege and
prejudice the public interest. respect for the rights of public officials appearing in inquiries in aid of
legislation. (Emphasis and underscoring supplied)
Executive privilege covers all confidential or classified information Also on September 28, 2005, Senate President Drilon received from
between the President and the public officers covered by this executive Executive Secretary Ermita a copy of E.O. 464, and another letter[8]
order, including: informing him "that officials of the Executive Department invited to
appear at the meeting [regarding the NorthRail project] will not be able
i. Conversations and correspondence between the President to attend the same without the consent of the President, pursuant to
and the public official covered by this executive order [E.O. 464]" and that "said officials have not secured the required
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. consent from the President." On even date which was also the
Public Estates Authority, G.R. No. 133250, 9 July 2002); scheduled date of the hearing on the alleged wiretapping, Gen. Senga
ii. Military, diplomatic and other national security matters which sent a letter[9] to Senator Biazon, Chairperson of the Committee on
in the interest of national security should not be divulged National Defense and Security, informing him "that per instruction of
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. [President Arroyo], thru the Secretary of National Defense, no officer
Presidential Commission on Good Government, G.R. No. 130716, 9 of the [AFP] is authorized to appear before any Senate or Congressional
December 1998). hearings without seeking a written approval from the President" and
iii. Information between inter-government agencies prior to the "that no approval has been granted by the President to any AFP officer
conclusion of treaties and executive agreements (Chavez v. to appear before the public hearing of the Senate Committee on
Presidential Commission on Good Government, G.R. No. 130716, 9 National Defense and Security scheduled [on] 28 September 2005."
December 1998);
iv. Discussion in close-door Cabinet meetings (Chavez v. Despite the communications received from Executive Secretary Ermita
Presidential Commission on Good Government, G.R. No. 130716, 9 and Gen. Senga, the investigation scheduled by the Committee on
December 1998); National Defense and Security pushed through, with only Col. Balutan
v. Matters affecting national security and public order (Chavez v. and Brig. Gen. Gudani among all the AFP officials invited attending.
Public Estates Authority, G.R. No. 133250, 9 July 2002).
For defying President Arroyo's order barring military personnel from
(b) Who are covered. - The following are covered by this executive testifying before legislative inquiries without her approval, Brig. Gen.
order: Gudani and Col. Balutan were relieved from their military posts and
were made to face court martial proceedings.
i. Senior officials of executive departments who in the
judgment of the department heads are covered by the As to the NorthRail project hearing scheduled on September 29, 2005,
executive privilege; Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in
ii. Generals and flag officers of the Armed Forces of the response to the invitations sent to the following government officials:
Philippines and such other officers who in the judgment of Light Railway Transit Authority Administrator Melquiades Robles,
the Chief of Staff are covered by the executive privilege; Metro Rail Transit Authority Administrator Roberto Lastimoso,
iii. Philippine National Police (PNP) officers with rank of chief Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez,
superintendent or higher and such other officers who in the then Presidential Legal Counsel Merceditas Gutierrez, Department of
judgment of the Chief of the PNP are covered by the Transportation and Communication (DOTC) Undersecretary Guiling
executive privilege; Mamonding, DOTC Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary Board Member which was denied to the public by E.O. 464,[13] prays, that said order be
Juanita Amatong, Bases Conversion Development Authority declared null and void for being unconstitutional and that respondent
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.[10] Executive Secretary Ermita be ordered to cease from implementing it.
NorthRail President Cortes sent personal regrets likewise citing E.O.
464.[11] On October 11, 2005, Petitioner Senate of the Philippines, alleging that
it has a vital interest in the resolution of the issue of the validity of E.O.
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 464 for it stands to suffer imminent and material injury, as it has already
169660, and 169667, for certiorari and prohibition, were filed before sustained the same with its continued enforcement since it directly
this Court challenging the constitutionality of E.O. 464. interferes with and impedes the valid exercise of the Senate's powers
and functions and conceals information of great public interest and
In G.R. No. 169659, petitioners party-list Bayan Muna, House of concern, filed its petition for certiorari and prohibition, docketed as
Representatives Members Satur Ocampo, Crispin Beltran, Rafael G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the Defense On October 14, 2005, PDP-Laban, a registered political party with
of Liberties (CODAL), a group of lawyers dedicated to the promotion members duly elected into the Philippine Senate and House of
of justice, democracy and peace, all claiming to have standing to file the Representatives, filed a similar petition for certiorari and prohibition,
suit because of the transcendental importance of the issues they posed, docketed as G.R. No. 169834, alleging that it is affected by the
pray, in their petition that E.O. 464 be declared null and void for being challenged E.O. 464 because it hampers its legislative agenda to be
unconstitutional; that respondent Executive Secretary Ermita, in his implemented through its members in Congress, particularly in the
capacity as Executive Secretary and alter-ego of President Arroyo, be conduct of inquiries in aid of legislation and transcendental issues need
prohibited from imposing, and threatening to impose sanctions on to be resolved to avert a constitutional crisis between the executive and
officials who appear before Congress due to congressional summons. legislative branches of the government.
Additionally, petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective obligations. Thus, Meanwhile, by letter[14] dated February 6, 2006, Senator Biazon
Bayan Muna alleges that E.O. 464 infringes on its right as a political reiterated his invitation to Gen. Senga for him and other military
party entitled to participate in governance; Satur Ocampo, et al. allege officers to attend the hearing on the alleged wiretapping scheduled on
that E.O. 464 infringes on their rights and duties as members of February 10, 2005. Gen. Senga replied, however, by letter[15] dated
Congress to conduct investigation in aid of legislation and conduct February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e]
oversight functions in the implementation of laws; Courage alleges that Headquarters requested for a clearance from the President to allow
the tenure of its members in public office is predicated on, and [them] to appear before the public hearing" and that "they will attend
threatened by, their submission to the requirements of E.O. 464 should once [their] request is approved by the President." As none of those
they be summoned by Congress; and CODAL alleges that its members invited appeared, the hearing on February 10, 2006 was cancelled.[16]
have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the In another investigation conducted jointly by the Senate Committee on
imposition of E.O. 464. Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his Masaganang Ani program of the Department of Agriculture (DA),
constitutional rights as a citizen, taxpayer and law practitioner, are several Cabinet officials were invited to the hearings scheduled on
affected by the enforcement of E.O. 464, prays in his petition that E.O. October 5 and 26, November 24 and December 12, 2005 but most of
464 be declared null and void for being unconstitutional. them failed to attend, DA Undersecretary Belinda Gonzales, DA
Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.[12] (ALG), Executive Director Norlito R. Gicana,[17] and those from the
alleging that as a coalition of 17 legal resource non-governmental Department of Budget and Management[18] having invoked E.O. 464.
organizations engaged in developmental lawyering and work with the
poor and marginalized sectors in different parts of the country, and as In the budget hearings set by the Senate on February 8 and 13, 2006,
an organization of citizens of the Philippines and a part of the general Press Secretary and Presidential Spokesperson Ignacio R. Bunye,[19]
public, it has legal standing to institute the petition to enforce its DOJ Secretary Raul M. Gonzalez[20] and Department of Interior and
constitutional right to information on matters of public concern, a right Local Government Undersecretary Marius P. Corpus[21] communicated
their inability to attend due to lack of appropriate clearance from the Petitioners submit that E.O. 464 violates the following constitutional
President pursuant to E.O. 464. During the February 13, 2005 budget provisions:
hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita. Art. VI, Sec. 21[30]

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent Art. VI, Sec. 22[31]
members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the Philippines as Art. VI, Sec. 1[32]
the official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed Art. XI, Sec. 1[33]
their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void. Art. III, Sec. 7[34]

All the petitions pray for the issuance of a Temporary Restraining Order Art. III, Sec. 4[35]
enjoining respondents from implementing, enforcing, and observing
E.O. 464. Art. XIII, Sec. 16[36]

In the oral arguments on the petitions conducted on February 21, 2006, Art. II, Sec. 28[37]
the following substantive issues were ventilated: (1) whether
respondents committed grave abuse of discretion in implementing E.O. Respondents Executive Secretary Ermita et al., on the other hand, pray
464 prior to its publication in the Official Gazette or in a newspaper of in their consolidated memorandum[38] on March 13, 2006 for the
general circulation; and (2) whether E.O. 464 violates the following dismissal of the petitions for lack of merit.
provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III,
Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, The Court synthesizes the issues to be resolved as follows:
and Art. XIII, Sec. 16. The procedural issue of whether there is an
actual case or controversy that calls for judicial review was not taken up; 1. Whether E.O. 464 contravenes the power of inquiry vested in
instead, the parties were instructed to discuss it in their respective Congress;
memoranda.
2. Whether E.O. 464 violates the right of the people to
After the conclusion of the oral arguments, the parties were directed to information on matters of public concern; and
submit their respective memoranda, paying particular attention to the
following propositions: (1) that E.O. 464 is, on its face, 3. Whether respondents have committed grave abuse of
unconstitutional; and (2) assuming that it is not, it is unconstitutional as discretion when they implemented E.O. 464 prior to its
applied in four instances, namely: (a) the so called Fertilizer scam; (b) publication in a newspaper of general circulation.
the NorthRail investigation (c) the Wiretapping activity of the ISAFP;
and (d) the investigation on the Venable contract.[22] Essential requisites for judicial review

Petitioners in G.R. No. 169660[23] and G.R. No. 169777[24] filed their Before proceeding to resolve the issue of the constitutionality of E.O.
memoranda on March 7, 2006, while those in G.R. No. 169667[25] and 464, ascertainment of whether the requisites for a valid exercise of the
G.R. No. 169834[26] filed theirs the next day or on March 8, 2006. Court's power of judicial review are present is in order.
Petitioners in G.R. No. 171246 did not file any memorandum.
Like almost all powers conferred by the Constitution, the power of
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for judicial review is subject to limitations, to wit: (1) there must be an
extension to file memorandum[27] was granted, subsequently filed a actual case or controversy calling for the exercise of judicial power; (2)
manifestation[28] dated March 14, 2006 that it would no longer file its the person challenging the act must have standing to challenge the
memorandum in the interest of having the issues resolved soonest, validity of the subject act or issuance; otherwise stated, he must have a
prompting this Court to issue a Resolution reprimanding them.[29] 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; more especially for sound legislation[45] is not disputed. E.O. 464,
and (4) the issue of constitutionality must be the very lis mota of the however, allegedly stifles the ability of the members of Congress to
case.[39] access information that is crucial to law-making.[46] Verily, the Senate,
including its individual members, has a substantial and direct interest
Except with respect to the requisites of standing and existence of an over the outcome of the controversy and is the proper party to assail
actual case or controversy where the disagreement between the parties the constitutionality of E.O. 464. Indeed, legislators have standing to
lies, discussion of the rest of the requisites shall be omitted. maintain inviolate the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the
Standing validity of any official action which they claim infringes their
prerogatives as legislators.[47]
Respondents, through the Solicitor General, assert that the allegations
in G.R. Nos. 169659, 169660 and 169667 make it clear that they, In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
adverting to the non-appearance of several officials of the executive Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin
department in the investigations called by the different committees of Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza
the Senate, were brought to vindicate the constitutional duty of the (Gabriela) are allowed to sue to question the constitutionality of E.O.
Senate or its different committees to conduct inquiry in aid of 464, the absence of any claim that an investigation called by the House
legislation or in the exercise of its oversight functions. They maintain of Representatives or any of its committees was aborted due to the
that Representatives Ocampo et al. have not shown any specific implementation of E.O. 464 notwithstanding, it being sufficient that a
prerogative, power, and privilege of the House of Representatives claim is made that E.O. 464 infringes on their constitutional rights and
which had been effectively impaired by E.O. 464, there being no duties as members of Congress to conduct investigation in aid of
mention of any investigation called by the House of Representatives or legislation and conduct oversight functions in the implementation of
any of its committees which was aborted due to the implementation of laws.
E.O. 464.
The national political party, Bayan Muna, likewise meets the standing
As for Bayan Muna's alleged interest as a party-list representing the requirement as it obtained three seats in the House of Representatives
marginalized and underrepresented, and that of the other petitioner in the 2004 elections and is, therefore, entitled to participate in the
groups and individuals who profess to have standing as advocates and legislative process consonant with the declared policy underlying the
defenders of the Constitution, respondents contend that such interest party list system of affording citizens belonging to marginalized and
falls short of that required to confer standing on them as parties underrepresented sectors, organizations and parties who lack well-
"injured-in-fact."[40] defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.[48]
Respecting petitioner Chavez, respondents contend that Chavez may
not claim an interest as a taxpayer for the implementation of E.O. 464 As Bayan Muna and Representatives Ocampo et al. have the standing to
does not involve the exercise of taxing or spending power.[41] file their petitions, passing on the standing of their co-petitioners
Courage and Codal is rendered unnecessary.[49]
With regard to the petition filed by the Senate, respondents argue that
in the absence of a personal or direct injury by reason of the issuance of In filing their respective petitions, Chavez, the ALG which claims to be
E.O. 464, the Senate and its individual members are not the proper an organization of citizens, and the incumbent members of the IBP
parties to assail the constitutionality of E.O. 464. Board of Governors and the IBP in behalf of its lawyer members,[50]
invoke their constitutional right to information on matters of public
Invoking this Court's ruling in National Economic Protectionism Association concern, asserting that the right to information, curtailed and violated
v. Ongpin[42] and Valmonte v. Philippine Charity Sweepstakes Office,[43] by E.O. 464, is essential to the effective exercise of other constitutional
respondents assert that to be considered a proper party, one must have rights[51] and to the maintenance of the balance of power among the
a personal and substantial interest in the case, such that he has sustained three branches of the government through the principle of checks and
or will sustain direct injury due to the enforcement of E.O. 464.[44] balances.[52]

That the Senate of the Philippines has a fundamental right essential not It is well-settled that when suing as a citizen, the interest of the
only for intelligent public decision-making in a democratic system, but petitioner in assailing the constitutionality of laws, presidential decrees,
orders, and other regulations, must be direct and personal. In Franciso v. apprehension is not sufficient for challenging the validity of E.O. 464.
House of Representatives,[53] this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen The Court finds respondents' assertion that the President has not
satisfies the requirement of personal interest. withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case or
As for petitioner PDP-Laban, it asseverates that it is clothed with legal controversy insofar as E.O. 464 is concerned. For E.O. 464 does not
standing in view of the transcendental issues raised in its petition which require either a deliberate withholding of consent or an express
this Court needs to resolve in order to avert a constitutional crisis. For it prohibition issuing from the President in order to bar officials
to be accorded standing on the ground of transcendental importance, from appearing before Congress.
however, it must establish (1) the character of the funds (that it is
public) or other assets involved in the case, (2) the presence of a clear As the implementation of the challenged order has already resulted in
case of disregard of a constitutional or statutory prohibition by the the absence of officials invited to the hearings of petitioner Senate of
public respondent agency or instrumentality of the government, and (3) the Philippines, it would make no sense to wait for any further event
the lack of any party with a more direct and specific interest in raising before considering the present case ripe for adjudication. Indeed, it
the questions being raised.[54] The first and last determinants not being would be sheer abandonment of duty if this Court would now refrain
present as no public funds or assets are involved and petitioners in G.R. from passing on the constitutionality of E.O. 464.
Nos. 169777 and 169659 have direct and specific interests in the
resolution of the controversy, petitioner PDP-Laban is bereft of Constitutionality of E.O. 464
standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a E.O. 464, to the extent that it bars the appearance of executive officials
"generalized interest" which it shares with the rest of the political before Congress, deprives Congress of the information in the
parties. Concrete injury, whether actual or threatened, is that possession of these officials. To resolve the question of whether such
indispensable element of a dispute which serves in part to cast it in a withholding of information violates the Constitution, consideration of
form traditionally capable of judicial resolution.[55] In fine, PDP-Laban's the general power of Congress to obtain information, otherwise known
alleged interest as a political party does not suffice to clothe it with legal as the power of inquiry, is in order.
standing.
The power of inquiry
Actual Case or Controversy
The Congress power of inquiry is expressly recognized in Section 21 of
Petitioners assert that an actual case exists, they citing the absence of Article VI of the Constitution which reads:
the executive officials invited by the Senate to its hearings after the SECTION 21. The Senate or the House of Representatives or any of its
issuance of E.O. 464, particularly those on the NorthRail project and respective committees may conduct inquiries in aid of legislation in
the wiretapping controversy. accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
Respondents counter that there is no case or controversy, there being (Underscoring supplied)
no showing that President Arroyo has actually withheld her consent or This provision is worded exactly as Section 8 of Article VIII of the 1973
prohibited the appearance of the invited officials.[56] These officials, they Constitution except that, in the latter, it vests the power of inquiry in
claim, merely communicated to the Senate that they have not yet the unicameral legislature established therein - the Batasang Pambansa -
secured the consent of the President, not that the President prohibited and its committees.
their attendance.[57] Specifically with regard to the AFP officers who did
not attend the hearing on September 28, 2005, respondents claim that The 1935 Constitution did not contain a similar provision. Nonetheless,
the instruction not to attend without the President's consent was based in Arnault v. Nazareno,[58] a case decided in 1950 under that Constitution,
on its role as Commander-in-Chief of the Armed Forces, not on E.O. the Court already recognized that the power of inquiry is inherent in the
464. power to legislate.

Respondents thus conclude that the petitions merely rest on an Arnault involved a Senate investigation of the reportedly anomalous
unfounded apprehension that the President will abuse its power of purchase of the Buenavista and Tambobong Estates by the Rural
preventing the appearance of officials before Congress, and that such Progress Administration. Arnault, who was considered a leading witness
in the controversy, was called to testify thereon by the Senate. On
account of his refusal to answer the questions of the senators on an As evidenced by the American experience during the so-called
important point, he was, by resolution of the Senate, detained for "McCarthy era," however, the right of Congress to conduct inquiries in
contempt. Upholding the Senate's power to punish Arnault for aid of legislation is, in theory, no less susceptible to abuse than
contempt, this Court held: executive or judicial power. It may thus be subjected to judicial review
Although there is no provision in the Constitution expressly investing pursuant to the Court's certiorari powers under Section 1, Article VIII
either House of Congress with power to make investigations and exact of the Constitution.
testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[61] the inquiry
legislative function as to be implied. In other words, the power of itself might not properly be in aid of legislation, and thus beyond the
inquiry - with process to enforce it - is an essential and constitutional power of Congress. Such inquiry could not usurp judicial
appropriate auxiliary to the legislative function. A legislative body functions. Parenthetically, one possible way for Congress to avoid such
cannot legislate wisely or effectively in the absence of information a result as occurred in Bengzon is to indicate in its invitations to the
respecting the conditions which the legislation is intended to affect or public officials concerned, or to any person for that matter, the possible
change; and where the legislative body does not itself possess the needed statute which prompted the need for the inquiry. Given such
requisite information - which is not infrequently true - recourse must be statement in its invitations, along with the usual indication of the subject
had to others who do possess it. Experience has shown that mere of inquiry and the questions relative to and in furtherance thereof, there
requests for such information are often unavailing, and also that would be less room for speculation on the part of the person invited on
information which is volunteered is not always accurate or complete; whether the inquiry is in aid of legislation.
so some means of compulsion is essential to obtain what is
needed.[59] . . . (Emphasis and underscoring supplied) Section 21, Article VI likewise establishes crucial safeguards that
That this power of inquiry is broad enough to cover officials of the proscribe the legislative power of inquiry. The provision requires that
executive branch may be deduced from the same case. The power of the inquiry be done in accordance with the Senate or House's duly
inquiry, the Court therein ruled, is co-extensive with the power to published rules of procedure, necessarily implying the constitutional
legislate.[60] The matters which may be a proper subject of legislation infirmity of an inquiry conducted without duly published rules of
and those which may be a proper subject of investigation are one. It procedure. Section 21 also mandates that the rights of persons
follows that the operation of government, being a legitimate subject for appearing in or affected by such inquiries be respected, an imposition
legislation, is a proper subject for investigation. that obligates Congress to adhere to the guarantees in the Bill of Rights.

Thus, the Court found that the Senate investigation of the government These abuses are, of course, remediable before the courts, upon the
transaction involved in Arnault was a proper exercise of the power of proper suit filed by the persons affected, even if they belong to the
inquiry. Besides being related to the expenditure of public funds of executive branch. Nonetheless, there may be exceptional circumstances,
which Congress is the guardian, the transaction, the Court held, "also none appearing to obtain at present, wherein a clear pattern of abuse of
involved government agencies created by Congress and officers whose the legislative power of inquiry might be established, resulting in
positions it is within the power of Congress to regulate or even palpable violations of the rights guaranteed to members of the executive
abolish." department under the Bill of Rights. In such instances, depending on
the particulars of each case, attempts by the Executive Branch to
Since Congress has authority to inquire into the operations of the forestall these abuses may be accorded judicial sanction.
executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar Even where the inquiry is in aid of legislation, there are still recognized
with and informed on executive operations. exemptions to the power of inquiry, which exemptions fall under the
rubric of "executive privilege." Since this term figures prominently in
As discussed in Arnault, the power of inquiry, "with process to enforce the challenged order, it being mentioned in its provisions, its
it," is grounded on the necessity of information in the legislative preambular clauses,[62] and in its very title, a discussion of executive
process. If the information possessed by executive officials on the privilege is crucial for determining the constitutionality of E.O. 464.
operation of their offices is necessary for wise legislation on that
subject, by parity of reasoning, Congress has the right to that Executive privilege
information and the power to compel the disclosure thereof.
The phrase "executive privilege" is not new in this jurisdiction. It has necessary to the discharge of highly important executive
been used even prior to the promulgation of the 1986 Constitution.[63] responsibilities involved in maintaining governmental operations, and
Being of American origin, it is best understood in light of how it has extends not only to military and diplomatic secrets but also to
been defined and used in the legal literature of the United States. documents integral to an appropriateexercise of the executive" domestic
decisional and policy making functions, that is, those documents
Schwartz defines executive privilege as "the power of the Government reflecting the frank expression necessary in intra-governmental advisory
to withhold information from the public, the courts, and the and deliberative communications.[70] (Emphasis and underscoring
Congress."[64] Similarly, Rozell defines it as "the right of the President supplied)
and high-level executive branch officers to withhold information from That a type of information is recognized as privileged does not,
Congress, the courts, and ultimately the public."[65] however, necessarily mean that it would be considered privileged in all
instances. For in determining the validity of a claim of privilege, the
Executive privilege is, nonetheless, not a clear or unitary concept.[66] It question that must be asked is not only whether the requested
has encompassed claims of varying kinds.[67] Tribe, in fact, comments information falls within one of the traditional privileges, but also
that while it is customary to employ the phrase "executive privilege," it whether that privilege should be honored in a given procedural
may be more accurate to speak of executive privileges "since presidential setting.[71]
refusals to furnish information may be actuated by any of at least three
distinct kinds of considerations, and may be asserted, with differing The leading case on executive privilege in the United States is U.S. v.
degrees of success, in the context of either judicial or legislative Nixon, [72] decided in 1974. In issue in that case was the validity of
investigations." President Nixon's claim of executive privilege against a subpoena issued
by a district court requiring the production of certain tapes and
One variety of the privilege, Tribe explains, is the state secrets privilege documents relating to the Watergate investigations. The claim of
invoked by U.S. Presidents, beginning with Washington, on the ground privilege was based on the President's general interest in the
that the information is of such nature that its disclosure would subvert confidentiality of his conversations and correspondence. The U.S.
crucial military or diplomatic objectives. Another variety is the Court held that while there is no explicit reference to a privilege of
informer's privilege, or the privilege of the Government not to disclose confidentiality in the U.S. Constitution, it is constitutionally based to the
the identity of persons who furnish information of violations of law extent that it relates to the effective discharge of a President's powers.
to officers charged with the enforcement of that law. Finally, a generic The Court, nonetheless, rejected the President's claim of privilege,
privilege for internal deliberations has been said to attach to ruling that the privilege must be balanced against the public interest in
intragovernmental documents reflecting advisory opinions, the fair administration of criminal justice. Notably, the Court was
recommendations and deliberations comprising part of a process by careful to clarify that it was not there addressing the issue of claims of
which governmental decisions and policies are formulated. [68] privilege in a civil litigation or against congressional demands for
information.
Tribe's comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a Cases in the U.S. which involve claims of executive privilege against
variety of privileges to resist disclosure of information the Congress are rare.[73] Despite frequent assertion of the privilege to deny
confidentiality of which they felt was crucial to fulfillment of the information to Congress, beginning with President Washington's refusal
unique role and responsibilities of the executive branch of our to turn over treaty negotiation records to the House of Representatives,
government. Courts ruled early that the executive had a right to the U.S. Supreme Court has never adjudicated the issue.[74] However,
withhold documents that might reveal military or state secrets. The the U.S. Court of Appeals for the District of Columbia Circuit, in a case
courts have also granted the executive a right to withhold the identity of decided earlier in the same year as Nixon, recognized the President's
government informers in some circumstances and a qualified right to privilege over his conversations against a congressional subpoena.[75]
withhold information related to pending investigations. x x x"[69] Anticipating the balancing approach adopted by the U.S. Supreme
(Emphasis and underscoring supplied) Court in Nixon, the Court of Appeals weighed the public interest
The entry in Black's Law Dictionary on "executive privilege" is similarly protected by the claim of privilege against the interest that would be
instructive regarding the scope of the doctrine. served by disclosure to the Committee. Ruling that the balance favored
This privilege, based on the constitutional doctrine of separation of the President, the Court declined to enforce the subpoena. [76]
powers, exempts the executive from disclosure requirements applicable
to the ordinary citizen or organization where such exemption is In this jurisdiction, the doctrine of executive privilege was recognized
by this Court in Almonte v. Vasquez.[77] Almonte used the term in privilege is a constitutional concept, a claim thereof may be valid or not
reference to the same privilege subject of Nixon. It quoted the depending on the ground invoked to justify it and the context in which
following portion of the Nixon decision which explains the basis for the it is made. Noticeably absent is any recognition that executive officials
privilege: are exempt from the duty to disclose information by the mere fact of
"The expectation of a President to the confidentiality of his being executive officials. Indeed, the extraordinary character of the
conversations and correspondences, like the claim of exemptions indicates that the presumption inclines heavily
confidentiality of judicial deliberations, for example, has all the against executive secrecy and in favor of disclosure.
values to which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the public Validity of Section 1
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him Section 1 is similar to Section 3 in that both require the officials covered
must be free to explore alternatives in the process of shaping policies by them to secure the consent of the President prior to appearing
and making decisions and to do so in a way many would be unwilling to before Congress. There are significant differences between the two
express except privately. These are the considerations justifying a provisions, however, which constrain this Court to discuss the validity
presumptive privilege for Presidential communications. The privilege of these provisions separately.
is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " Section 1 specifically applies to department heads. It does not, unlike
(Emphasis and underscoring supplied) Section 3, require a prior determination by any official whether they are
Almonte involved a subpoena duces tecum issued by the Ombudsman covered by E.O. 464. The President herself has, through the challenged
against the therein petitioners. It did not involve, as expressly stated in order, made the determination that they are. Further, unlike also Section
the decision, the right of the people to information.[78] Nonetheless, the 3, the coverage of department heads under Section 1 is not made to
Court recognized that there are certain types of information which the depend on the department heads' possession of any information which
government may withhold from the public, thus acknowledging, in might be covered by executive privilege. In fact, in marked contrast to
substance if not in name, that executive privilege may be claimed against Section 3 vis-á-vis Section 2, there is no reference to executive privilege
citizens' demands for information. at all. Rather, the required prior consent under Section 1 is grounded on
Article VI, Section 22 of the Constitution on what has been referred to
In Chavez v. PCGG,[79] the Court held that this jurisdiction recognizes as the question hour.
the common law holding that there is a "governmental privilege against SECTION 22. The heads of departments may upon their own initiative,
public disclosure with respect to state secrets regarding military, with the consent of the President, or upon the request of either House,
diplomatic and other national security matters."[80] The same case held as the rules of each House shall provide, appear before and be heard by
that closed-door Cabinet meetings are also a recognized limitation on such House on any matter pertaining to their departments. Written
the right to information. questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their
Similarly, in Chavez v. Public Estates Authority,[81] the Court ruled that the scheduled appearance. Interpellations shall not be limited to written
right to information does not extend to matters recognized as questions, but may cover matters related thereto. When the security of
"privileged information under the separation of powers,"[82] by which the State or the public interest so requires and the President so states in
the Court meant Presidential conversations, correspondences, and writing, the appearance shall be conducted in executive session.
discussions in closed-door Cabinet meetings. It also held that Determining the validity of Section 1 thus requires an examination of
information on military and diplomatic secrets and those affecting the meaning of Section 22 of Article VI. Section 22 which provides for
national security, and information on investigations of crimes by law the question hour must be interpreted vis-á-vis Section 21 which
enforcement agencies before the prosecution of the accused were provides for the power of either House of Congress to "conduct
exempted from the right to information. inquiries in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers
From the above discussion on the meaning and scope of executive were aware that these two provisions involved distinct functions of
privilege, both in the United States and in this jurisdiction, a clear Congress.
principle emerges. Executive privilege, whether asserted against MR. MAAMBONG. x x x When we amended Section 20 [now Section
Congress, the courts, or the public, is recognized only in relation to 22 on the Question Hour] yesterday, I noticed that members of the
certain types of information of a sensitive character. While executive Cabinet cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this Section 31, it should follow Legislative Inquiries.
regard, Madam President, because in our experience in the Regular
Batasang Pambansa - as the Gentleman himself has experienced in the THE PRESIDING OFFICER. What does the committee say?
interim Batasang Pambansa - one of the most competent inputs that we
can put in our committee deliberations, either in aid of legislation or in MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
congressional investigations, is the testimonies of Cabinet ministers. We Presiding Officer.
usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas. MR. MAAMBONG. Actually, we considered that previously when
we sequenced this but we reasoned that in Section 21, which is
I want to be clarified on a statement made by Commissioner Legislative Inquiry, it is actually a power of Congress in terms of
Suarez when he said that the fact that the Cabinet ministers may its own lawmaking; whereas, a Question Hour is not actually a
refuse to come to the House of Representatives or the Senate power in terms of its own lawmaking power because in Legislative
[when requested under Section 22] does not mean that they need Inquiry, it is in aid of legislation. And so we put Question Hour as
not come when they are invited or subpoenaed by the committee Section 31. I hope Commissioner Davide will consider this.
of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, MR. DAVIDE. The Question Hour is closely related with the
that is allowed and their presence can be had under Section 21. legislative power, and it is precisely as a complement to or a
Does the gentleman confirm this, Madam President? supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in the
MR. DAVIDE. We confirm that, Madam President, because application of check and balance but also, in effect, in aid of legislation.
Section 20 refers only to what was originally the Question Hour,
whereas, Section 21 would refer specifically to inquiries in aid of MR. MAAMBONG. After conferring with the committee, we find
legislation, under which anybody for that matter, may be summoned merit in the suggestion of Commissioner Davide. In other words,
and if he refuses, he can be held in contempt of the House.[83] we are accepting that and so this Section 31 would now become Section
(Emphasis and underscoring supplied) 22. Would it be, Commissioner Davide?
A distinction was thus made between inquiries in aid of legislation and
the question hour. While attendance was meant to be discretionary in MR. DAVIDE. Yes.[84] (Emphasis and underscoring supplied)
the question hour, it was compulsory in inquiries in aid of legislation. Consistent with their statements earlier in the deliberations,
The reference to Commissioner Suarez bears noting, he being one of Commissioners Davide and Maambong proceeded from the same
the proponents of the amendment to make the appearance of assumption that these provisions pertained to two different functions of
department heads discretionary in the question hour. the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to
So clearly was this distinction conveyed to the members of the conduct inquiries during the question hour. Commissioner Davide's
Commission that the Committee on Style, precisely in recognition of only concern was that the two provisions on these distinct powers be
this distinction, later moved the provision on question hour from its placed closely together, they being complementary to each other.
original position as Section 20 in the original draft down to Section 31, Neither Commissioner considered them as identical functions of
far from the provision on inquiries in aid of legislation. This gave rise to Congress.
the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the The foregoing opinion was not the two Commissioners' alone. From
Committee on Style] We now go, Mr. Presiding Officer, to the Article the above-quoted exchange, Commissioner Maambong's committee -
on Legislative and may I request the chairperson of the Legislative the Committee on Style - shared the view that the two provisions
Department, Commissioner Davide, to give his reaction. reflected distinct functions of Congress. Commissioner Davide, on the
other hand, was speaking in his capacity as Chairman of the Committee
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is on the Legislative Department. His views may thus be presumed as
recognized. representing that of his Committee.

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one In the context of a parliamentary system of government, the "question
reaction to the Question Hour. I propose that instead of putting it as hour" has a definite meaning. It is a period of confrontation initiated by
Parliament to hold the Prime Minister and the other ministers effectiveness solely upon information parceled out ex gratia by the
accountable for their acts and the operation of the government,[85] executive.[89] (Emphasis and underscoring supplied)
corresponding to what is known in Britain as the question period. There Sections 21 and 22, therefore, while closely related and complementary
was a specific provision for a question hour in the 1973 Constitution[86] to each other, should not be considered as pertaining to the same power
which made the appearance of ministers mandatory. The same perfectly of Congress. One specifically relates to the power to conduct inquiries
conformed to the parliamentary system established by that Constitution, in aid of legislation, the aim of which is to elicit information that may be
where the ministers are also members of the legislature and are directly used for legislation, while the other pertains to the power to conduct a
accountable to it. question hour, the objective of which is to obtain information in pursuit
An essential feature of the parliamentary system of government is the of Congress' oversight function.
immediate accountability of the Prime Minister and the Cabinet to the
National Assembly. They shall be responsible to the National Assembly When Congress merely seeks to be informed on how department heads
for the program of government and shall determine the guidelines of are implementing the statutes which it has issued, its right to such
national policy. Unlike in the presidential system where the tenure of information is not as imperative as that of the President to whom, as
office of all elected officials cannot be terminated before their term Chief Executive, such department heads must give a report of their
expired, the Prime Minister and the Cabinet remain in office only as performance as a matter of duty. In such instances, Section 22, in
long as they enjoy the confidence of the National Assembly. The keeping with the separation of powers, states that Congress may only
moment this confidence is lost the Prime Minister and the Cabinet may request their appearance. Nonetheless, when the inquiry in which
be changed.[87] Congress requires their appearance is "in aid of legislation" under
The framers of the 1987 Constitution removed the mandatory nature of Section 21, the appearance is mandatory for the same reasons stated in
such appearance during the question hour in the present Constitution Arnault.[90]
so as to conform more fully to a system of separation of powers.[88] To
that extent, the question hour, as it is presently understood in this In fine, the oversight function of Congress may be facilitated by
jurisdiction, departs from the question period of the parliamentary compulsory process only to the extent that it is performed in pursuit of
system. That department heads may not be required to appear in a legislation. This is consistent with the intent discerned from the
question hour does not, however, mean that the legislature is rendered deliberations of the Constitutional Commission.
powerless to elicit information from them in all circumstances. In fact,
in light of the absence of a mandatory question period, the need to Ultimately, the power of Congress to compel the appearance of
enforce Congress' right to executive information in the performance of executive officials under Section 21 and the lack of it under Section 22
its legislative function becomes more imperative. As Schwartz observes: find their basis in the principle of separation of powers. While the
Indeed, if the separation of powers has anything to tell us on the executive branch is a co-equal branch of the legislature, it cannot
subject under discussion, it is that the Congress has the right to frustrate the power of Congress to legislate by refusing to comply with
obtain information from any source - even from officials of its demands for information.
departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a parliamentary When Congress exercises its power of inquiry, the only way for
system such as that in Britain, a clear separation between the legislative department heads to exempt themselves therefrom is by a valid
and executive branches. It is this very separation that makes the claim of privilege. They are not exempt by the mere fact that they
congressional right to obtain information from the executive so are department heads. Only one executive official may be exempted
essential, if the functions of the Congress as the elected from this power - the President on whom executive power is vested,
representatives of the people are adequately to be carried out. The hence, beyond the reach of Congress except through the power of
absence of close rapport between the legislative and executive branches impeachment. It is based on her being the highest official of the
in this country, comparable to those which exist under a parliamentary executive branch, and the due respect accorded to a co-equal branch of
system, and the nonexistence in the Congress of an institution such as government which is sanctioned by a long-standing custom.
the British question period have perforce made reliance by the Congress
upon its right to obtain information from the executive essential, if it is By the same token, members of the Supreme Court are also exempt
intelligently to perform its legislative tasks. Unless the Congress from this power of inquiry. Unlike the Presidency, judicial power is
possesses the right to obtain executive information, its power of vested in a collegial body; hence, each member thereof is exempt on the
oversight of administration in a system such as ours becomes a power basis not only of separation of powers but also on the fiscal autonomy
devoid of most of its practical content, since it depends for its and the constitutional independence of the judiciary. This point is not in
dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it doctrine. Executive privilege, as discussed above, is properly invoked in
during the oral argument upon interpellation of the Chief Justice. relation to specific categories of information and not to categories of
persons.
Having established the proper interpretation of Section 22, Article VI of
the Constitution, the Court now proceeds to pass on the In light, however, of Sec 2(a) of E.O. 464 which deals with the nature,
constitutionality of Section 1 of E.O. 464. scope and coverage of executive privilege, the reference to persons
being "covered by the executive privilege" may be read as an
Section 1, in view of its specific reference to Section 22 of Article abbreviated way of saying that the person is in possession of
VI of the Constitution and the absence of any reference to information which is, in the judgment of the head of office concerned,
inquiries in aid of legislation, must be construed as limited in its privileged as defined in Section 2(a). The Court shall thus proceed on
application to appearances of department heads in the question the assumption that this is the intention of the challenged order.
hour contemplated in the provision of said Section 22 of Article VI.
The reading is dictated by the basic rule of construction that issuances Upon a determination by the designated head of office or by the
must be interpreted, as much as possible, in a way that will render it President that an official is "covered by the executive privilege," such
constitutional. official is subjected to the requirement that he first secure the consent
of the President prior to appearing before Congress. This requirement
The requirement then to secure presidential consent under effectively bars the appearance of the official concerned unless the same
Section 1, limited as it is only to appearances in the question hour, is permitted by the President. The proviso allowing the President to give
is valid on its face. For under Section 22, Article VI of the its consent means nothing more than that the President may reverse a
Constitution, the appearance of department heads in the question hour prohibition which already exists by virtue of E.O. 464.
is discretionary on their part.
Thus, underlying this requirement of prior consent is the determination
Section 1 cannot, however, be applied to appearances of department by a head of office, authorized by the President under E.O. 464, or by
heads in inquiries in aid of legislation. Congress is not bound in such the President herself, that such official is in possession of information
instances to respect the refusal of the department head to appear in that is covered by executive privilege. This determination then becomes
such inquiry, unless a valid claim of privilege is subsequently made, the basis for the official's not showing up in the legislative investigation.
either by the President herself or by the Executive Secretary.
In view thereof, whenever an official invokes E.O. 464 to justify his
Validity of Sections 2 and 3 failure to be present, such invocation must be construed as a declaration
to Congress that the President, or a head of office authorized by the
Section 3 of E.O. 464 requires all the public officials enumerated in President, has determined that the requested information is privileged,
Section 2(b) to secure the consent of the President prior to appearing and that the President has not reversed such determination. Such
before either house of Congress. The enumeration is broad. It covers all declaration, however, even without mentioning the term "executive
senior officials of executive departments, all officers of the AFP and the privilege," amounts to an implied claim that the information is being
PNP, and all senior national security officials who, in the judgment of withheld by the executive branch, by authority of the President, on the
the heads of offices designated in the same section (i.e. department basis of executive privilege. Verily, there is an implied claim of
heads, Chief of Staff of the AFP, Chief of the PNP, and the National privilege.
Security Adviser), are "covered by the executive privilege."
The letter dated September 28, 2005 of respondent Executive Secretary
The enumeration also includes such other officers as may be Ermita to Senate President Drilon illustrates the implied nature of the
determined by the President. Given the title of Section 2 - "Nature, claim of privilege authorized by E.O. 464. It reads:
Scope and Coverage of Executive Privilege" -, it is evident that under In connection with the inquiry to be conducted by the Committee of
the rule of ejusdem generis, the determination by the President under this the Whole regarding the Northrail Project of the North Luzon Railways
provision is intended to be based on a similar finding of coverage under Corporation on 29 September 2005 at 10:00 a.m., please be informed
executive privilege. that officials of the Executive Department invited to appear at the
meeting will not be able to attend the same without the consent of the
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states President, pursuant to Executive Order No. 464 (s. 2005), entitled
that executive privilege actually covers persons. Such is a misuse of the "Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The is not the situation in the instant case.[91] (Emphasis and underscoring
Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of supplied)
Legislation Under The Constitution, And For Other Purposes". Said Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid
officials have not secured the required consent from the President. by the mere fact that it sanctions claims of executive privilege. This
(Underscoring supplied) Court must look further and assess the claim of privilege authorized by
The letter does not explicitly invoke executive privilege or that the the Order to determine whether it is valid.
matter on which these officials are being requested to be resource
persons falls under the recognized grounds of the privilege to justify While the validity of claims of privilege must be assessed on a case to
their absence. Nor does it expressly state that in view of the lack of case basis, examining the ground invoked therefor and the particular
consent from the President under E.O. 464, they cannot attend the circumstances surrounding it, there is, in an implied claim of privilege, a
hearing. defect that renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive Secretary quoted
Significant premises in this letter, however, are left unstated, deliberately above, the implied claim authorized by Section 3 of E.O. 464 is not
or not. The letter assumes that the invited officials are covered by E.O. accompanied by any specific allegation of the basis thereof (e.g.,
464. As explained earlier, however, to be covered by the order means whether the information demanded involves military or diplomatic
that a determination has been made, by the designated head of office or secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
the President, that the invited official possesses information that is enumerates the types of information that are covered by the privilege
covered by executive privilege. Thus, although it is not stated in the under the challenged order, Congress is left to speculate as to which
letter that such determination has been made, the same must be deemed among them is being referred to by the executive. The enumeration is
implied. Respecting the statement that the invited officials have not not even intended to be comprehensive, but a mere statement of what
secured the consent of the President, it only means that the President is included in the phrase "confidential or classified information between
has not reversed the standing prohibition against their appearance the President and the public officers covered by this executive order."
before Congress.
Certainly, Congress has the right to know why the executive considers
Inevitably, Executive Secretary Ermita's letter leads to the conclusion the requested information privileged. It does not suffice to merely
that the executive branch, either through the President or the heads of declare that the President, or an authorized head of office, has
offices authorized under E.O. 464, has made a determination that the determined that it is so, and that the President has not overturned that
information required by the Senate is privileged, and that, at the time of determination. Such declaration leaves Congress in the dark on how the
writing, there has been no contrary pronouncement from the President. requested information could be classified as privileged. That the
In fine, an implied claim of privilege has been made by the executive. message is couched in terms that, on first impression, do not seem like a
claim of privilege only makes it more pernicious. It threatens to make
While there is no Philippine case that directly addresses the issue of Congress doubly blind to the question of why the executive branch is
whether executive privilege may be invoked against Congress, it is not providing it with the information that it has requested.
gathered from Chavez v. PEA that certain information in the possession
of the executive may validly be claimed as privileged even against A claim of privilege, being a claim of exemption from an obligation to
Congress. Thus, the case holds: disclose information, must, therefore, be clearly asserted. As U.S. v.
There is no claim by PEA that the information demanded by petitioner Reynolds teaches:
is privileged information rooted in the separation of powers. The The privilege belongs to the government and must be asserted by it; it
information does not cover Presidential conversations, can neither be claimed nor waived by a private party. It is not to be
correspondences, or discussions during closed-door Cabinet lightly invoked. There must be a formal claim of privilege, lodged
meetings which, like internal-deliberations of the Supreme Court by the head of the department which has control over the matter, after
and other collegiate courts, or executive sessions of either house actual personal consideration by that officer. The court itself must
of Congress, are recognized as confidential. This kind of determine whether the circumstances are appropriate for the claim of
information cannot be pried open by a co-equal branch of privilege, and yet do so without forcing a disclosure of the very thing
government. A frank exchange of exploratory ideas and assessments, the privilege is designed to protect.[92] (Underscoring supplied)
free from the glare of publicity and pressure by interested parties, is Absent then a statement of the specific basis of a claim of executive
essential to protect the independence of decision-making of those privilege, there is no way of determining whether it falls under one of
tasked to exercise Presidential, Legislative and Judicial power. This the traditional privileges, or whether, given the circumstances in which
it is made, it should be respected.[93] These, in substance, were the same Due respect for a co-equal branch of government, moreover, demands
criteria in assessing the claim of privilege asserted against the no less than a claim of privilege clearly stating the grounds therefor.
Ombudsman in Almonte v. Vasquez[94] and, more in point, against a Apropos is the following ruling in McPhaul v. U.S:[102]
committee of the Senate in Senate Select Committee on Presidential We think the Court's decision in United States v. Bryan, 339 U.S. 323,
Campaign Activities v. Nixon.[95] 70 S. Ct. 724, is highly relevant to these questions. For it is as true here
as it was there, that "if (petitioner) had legitimate reasons for failing to
A.O. Smith v. Federal Trade Commission is enlightening: produce the records of the association, a decent respect for the
[T]he lack of specificity renders an assessment of the potential harm House of Representatives, by whose authority the subpoenas
resulting from disclosure impossible, thereby preventing the Court from issued, would have required that (he) state (his) reasons for
balancing such harm against plaintiffs' needs to determine whether to noncompliance upon the return of the writ. Such a statement would
override any claims of privilege.[96] (Underscoring supplied) have given the Subcommittee an opportunity to avoid the blocking of
And so is U.S. v. Article of Drug:[97] its inquiry by taking other appropriate steps to obtain the records. "To
On the present state of the record, this Court is not called upon to deny the Committee the opportunity to consider the objection or
perform this balancing operation. In stating its objection to claimant's remedy is in itself a contempt of its authority and an obstruction
interrogatories, government asserts, and nothing more, that the of its processes. His failure to make any such statement was "a patent
disclosures sought by claimant would inhibit the free expression evasion of the duty of one summoned to produce papers before a
of opinion that non-disclosure is designed to protect. The congressional committee[, and] cannot be condoned." (Emphasis and
government has not shown - nor even alleged - that those who underscoring supplied; citations omitted)
evaluated claimant's product were involved in internal policymaking, Upon the other hand, Congress must not require the executive to state
generally, or in this particular instance. Privilege cannot be set up by the reasons for the claim with such particularity as to compel disclosure
an unsupported claim. The facts upon which the privilege is of the information which the privilege is meant to protect.[103] A useful
based must be established. To find these interrogatories analogy in determining the requisite degree of particularity would be the
objectionable, this Court would have to assume that the evaluation and privilege against self-incrimination. Thus, Hoffman v. U.S.[104] declares:
classification of claimant's products was a matter of internal policy The witness is not exonerated from answering merely because he
formulation, an assumption in which this Court is unwilling to indulge declares that in so doing he would incriminate himself - his say-so
sua sponte.[98] (Emphasis and underscoring supplied) does not of itself establish the hazard of incrimination. It is for the
Mobil Oil Corp. v. Department of Energy[99] similarly emphasizes that "an court to say whether his silence is justified, and to require him to
agency must provide "precise and certain" reasons for preserving the answer if "it clearly appears to the court that he is mistaken."
confidentiality of requested information." However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be
Black v. Sheraton Corp. of America[100] amplifies, thus: established in court, he would be compelled to surrender the very
A formal and proper claim of executive privilege requires a specific protection which the privilege is designed to guarantee. To sustain the
designation and description of the documents within its scope as well as privilege, it need only be evident from the implications of the
precise and certain reasons for preserving their confidentiality. question, in the setting in which it is asked, that a responsive
Without this specificity, it is impossible for a court to analyze the claim answer to the question or an explanation of why it cannot be
short of disclosure of the very thing sought to be protected. As the answered might be dangerous because injurious disclosure could
affidavit now stands, the Court has little more than its sua sponte result." x x x (Emphasis and underscoring supplied)
speculation with which to weigh the applicability of the claim. An The claim of privilege under Section 3 of E.O. 464 in relation to Section
improperly asserted claim of privilege is no claim of privilege. 2(b) is thus invalid per se. It is not asserted. It is merely implied.
Therefore, despite the fact that a claim was made by the proper Instead of providing precise and certain reasons for the claim, it merely
executive as Reynolds requires, the Court can not recognize the claim in invokes E.O. 464, coupled with an announcement that the President
the instant case because it is legally insufficient to allow the Court to has not given her consent. It is woefully insufficient for Congress to
make a just and reasonable determination as to its applicability. To determine whether the withholding of information is justified under the
recognize such a broad claim in which the Defendant has given circumstances of each case. It severely frustrates the power of inquiry of
no precise or compelling reasons to shield these documents from Congress.
outside scrutiny, would make a farce of the whole procedure.[101]
(Emphasis and underscoring supplied) In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
further invalid on this score.
No infirmity, however, can be imputed to Section 2(a) as it merely
provides guidelines, binding only on the heads of office mentioned in It follows, therefore, that when an official is being summoned by
Section 2(b), on what is covered by executive privilege. It does not Congress on a matter which, in his own judgment, might be covered by
purport to be conclusive on the other branches of government. It may executive privilege, he must be afforded reasonable time to inform the
thus be construed as a mere expression of opinion by the President President or the Executive Secretary of the possible need for invoking
regarding the nature and scope of executive privilege. the privilege. This is necessary in order to provide the President or the
Executive Secretary with fair opportunity to consider whether the
Petitioners, however, assert as another ground for invalidating the matter indeed calls for a claim of executive privilege. If, after the lapse
challenged order the alleged unlawful delegation of authority to the of that reasonable time, neither the President nor the Executive
heads of offices in Section 2(b). Petitioner Senate of the Philippines, in Secretary invokes the privilege, Congress is no longer bound to respect
particular, cites the case of the United States where, so it claims, only the failure of the official to appear before Congress and may then opt to
the President can assert executive privilege to withhold information avail of the necessary legal means to compel his appearance.
from Congress.
The Court notes that one of the expressed purposes for requiring
Section 2(b) in relation to Section 3 virtually provides that, once the officials to secure the consent of the President under Section 3 of E.O.
head of office determines that a certain information is privileged, such 464 is to ensure "respect for the rights of public officials appearing in
determination is presumed to bear the President's authority and has the inquiries in aid of legislation." That such rights must indeed be
effect of prohibiting the official from appearing before Congress, respected by Congress is an echo from Article VI Section 21 of the
subject only to the express pronouncement of the President that it is Constitution mandating that "[t]he rights of persons appearing in or
allowing the appearance of such official. These provisions thus allow affected by such inquiries shall be respected."
the President to authorize claims of privilege by mere silence.
In light of the above discussion of Section 3, it is clear that it is
Such presumptive authorization, however, is contrary to the exceptional essentially an authorization for implied claims of executive privilege, for
nature of the privilege. Executive privilege, as already discussed, is which reason it must be invalidated. That such authorization is partly
recognized with respect to information the confidential nature of which motivated by the need to ensure respect for such officials does not
is crucial to the fulfillment of the unique role and responsibilities of the change the infirm nature of the authorization itself.
executive branch,[105] or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive Right to Information
responsibilities.[106] The doctrine of executive privilege is thus premised
on the fact that certain informations must, as a matter of necessity, be E.O 464 is concerned only with the demands of Congress for the
kept confidential in pursuit of the public interest. The privilege being, appearance of executive officials in the hearings conducted by it, and
by definition, an exemption from the obligation to disclose information, not with the demands of citizens for information pursuant to their right
in this case to Congress, the necessity must be of such high degree as to to information on matters of public concern. Petitioners are not amiss
outweigh the public interest in enforcing that obligation in a particular in claiming, however, that what is involved in the present controversy is
case. not merely the legislative power of inquiry, but the right of the people
to information.
In light of this highly exceptional nature of the privilege, the Court finds
it essential to limit to the President the power to invoke the privilege. There are, it bears noting, clear distinctions between the right of
She may of course authorize the Executive Secretary to invoke the Congress to information which underlies the power of inquiry and the
privilege on her behalf, in which case the Executive Secretary must state right of the people to information on matters of public concern. For
that the authority is "By order of the President," which means that he one, the demand of a citizen for the production of documents pursuant
personally consulted with her. The privilege being an extraordinary to his right to information does not have the same obligatory force as a
power, it must be wielded only by the highest official in the executive subpoena duces tecum issued by Congress. Neither does the right to
hierarchy. In other words, the President may not authorize her information grant a citizen the power to exact testimony from
subordinates to exercise such power. There is even less reason to government officials. These powers belong only to Congress and not to
uphold such authorization in the instant case where the authorization is an individual citizen.
not explicit but by mere silence. Section 3, in relation to Section 2(b), is
Thus, while Congress is composed of representatives elected by the therefore, a matter of public interest which members of the body politic
people, it does not follow, except in a highly qualified sense, that in may question before this Court. Due process thus requires that the
every exercise of its power of inquiry, the people are exercising their people should have been apprised of this issuance before it was
right to information. implemented.

To the extent that investigations in aid of legislation are generally Conclusion


conducted in public, however, any executive issuance tending to unduly
limit disclosures of information in such investigations necessarily Congress undoubtedly has a right to information from the executive
deprives the people of information which, being presumed to be in aid branch whenever it is sought in aid of legislation. If the executive
of legislation, is presumed to be a matter of public concern. The citizens branch withholds such information on the ground that it is privileged, it
are thereby denied access to information which they can use in must so assert it and state the reason therefor and why it must be
formulating their own opinions on the matter before Congress - respected.
opinions which they can then communicate to their representatives and
other government officials through the various legal means allowed by The infirm provisions of E.O. 464, however, allow the executive branch
their freedom of expression. Thus holds Valmonte v. Belmonte: to evade congressional requests for information without need of clearly
It is in the interest of the State that the channels for free political asserting a right to do so and/or proffering its reasons therefor. By the
discussion be maintained to the end that the government may mere expedient of invoking said provisions, the power of Congress to
perceive and be responsive to the people's will. Yet, this open conduct inquiries in aid of legislation is frustrated. That is
dialogue can be effective only to the extent that the citizenry is impermissible. For
informed and thus able to formulate its will intelligently. Only [w]hat republican theory did accomplish-was to reverse the old
when the participants in the discussion are aware of the issues and have presumption in favor of secrecy, based on the divine right of kings and
access to information relating thereto can such bear fruit.[107] (Emphasis nobles, and replace it with a presumption in favor of publicity, based on
and underscoring supplied) the doctrine of popular sovereignty. (Underscoring supplied)[109]
The impairment of the right of the people to information as a Resort to any means then by which officials of the executive branch
consequence of E.O. 464 is, therefore, in the sense explained above, could refuse to divulge information cannot be presumed valid.
just as direct as its violation of the legislature's power of inquiry. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall
Implementation of E.O. 464 prior to its publication have given up something of much greater value - our right as a people
to take part in government.
While E.O. 464 applies only to officials of the executive branch, it does
not follow that the same is exempt from the need for publication. On WHEREFORE, the petitions are PARTLY GRANTED. Sections
the need for publishing even those statutes that do not directly apply to 2(b) and 3 of Executive Order No. 464 (series of 2005), "ENSURING
people in general, Tañada v. Tuvera states: OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF
The term "laws" should refer to all laws and not only to those of general POWERS, ADHERENCE TO THE RULE ON EXECUTIVE
application, for strictly speaking all laws relate to the people in general PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC
albeit there are some that do not apply to them directly. An example is a OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID
law granting citizenship to a particular individual, like a relative of OF LEGISLATION UNDER THE CONSTITUTION, AND FOR
President Marcos who was decreed instant naturalization. It surely OTHER PURPOSES," ARE DECLARED VOID. SECTIONS 1
cannot be said that such a law does not affect the public although AND 2(A) ARE, HOWEVER, VALID.
it unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any SO ORDERED.
member of the body politic may question in the political forums or,
if he is a proper party, even in courts of justice.[108] (Emphasis and Panganiban, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
underscoring supplied) Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia,
Although the above statement was made in reference to statutes, logic and Velasco, Jr., JJ., concur.
dictates that the challenged order must be covered by the publication Puno, J., on leave.
requirement. As explained above, E.O. 464 has a direct effect on the
right of the people to information on matters of public concern. It is,
[30] Sec. 21. The Senate or the House of Representatives or any of its SEC. 2. Declaration of Policy. - The State shall promote proportional
respective committees may conduct inquiries in aid of legislation in representation in the election of representatives to the House of
accordance with its duly published rules of procedure. The rights of Representatives through a party-list system of registered national,
persons appearing in or affected by such inquiries shall be respected. regional and sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to marginalized and
[31] Sec. 22. The heads of departments may upon their own initiative, underrepresented sectors, organizations and parties, and who lack well-
with the consent of the President, or upon the request of either House, defined political constituencies but who could contribute to the
as the rules of each House shall provide, appear before and be heard by formulation and enactment of appropriate legislation that will benefit
such House on any matter pertaining to their departments. Written the nation as a whole, to become members of the House of
questions shall be submitted to the President of the Senate or the Representatives. Towards this end, the State shall develop and guarantee
Speaker of the House of Representatives at least three days before their a full, free and open party system in order to attain the broadest
scheduled appearance. Interpellations shall not be limited to written possible representation of party, sectoral or group interests in the
questions, but may cover matters related thereto. When the security of House of Representatives by enhancing their chances to compete for
the State or the public interest so requires and the President so states in and win seats in the legislature, and shall provide the simplest scheme
writing, the appearance shall be conducted in executive session. possible.

[32] Sec. 1. The legislative power shall be vested in the Congress of the [62] "WHEREAS, pursuant to the rule on executive privilege, the
Philippines which shall consist of a Senate and a House of President and those who assist her must be free to explore the
Representatives, except to the extent reserved to the people by the alternatives in the process of shaping policies and making decisions
provision on initiative and referendum. since this is fundamental to the operation of the government and is
rooted in the separation of powers under the Constitution;
[33] Sec. 1. Public office is a public trust. Public officers and employees xxxx
must at all times be accountable to the people, serve them with utmost "WHEREAS, recent events, particularly with respect to the invitation of
responsibility, integrity, loyalty, and efficiency, act with patriotism and a member of the Cabinet by the Senate as well as various heads of
justice, and lead modest lives. offices, civilian and military, have highlighted the need to ensure the
observance of the principle of separation of powers, adherence to the
[34] Sec. 7. The right of the people to information on matters of public rule on executive privilege and respect for the rights of persons
concern shall be recognized. Access to official records, and to appearing in such inquiries in aid of legislation and due regard to
documents, and papers pertaining to official acts, transactions, or constitutional mandate; x x x"
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such [76 N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996)
limitations as may be provided by law. states in Note 24: "Now that the Supreme Court decision has
specifically recognized a "privilege of confidentiality of Presidential
[35] Sec. 4. No law shall be passed abridging the freedom of speech, of communications," the Select Committee decision appears even stronger. If
expression, or of the press, or the right of the people peaceably to the need of the Watergate Committee for evidence was not enough
assemble and petition the government for redress of grievances. before the Supreme Court recognized executive privilege, the same
would surely have been true after the recognition. And, if the demand
[36] Sec. 16. The right of the people and their organizations to effective of the Watergate Committee, engaged in a specific investigation of such
and reasonable participation at all levels of social, political, and importance, was not enough to outweigh the nondisclosure claim, it is
economic decision-making shall not be abridged. The State shall, by law, hard to see what Congressional demand will fare better when met by an
facilitate the establishment of adequate consultation mechanisms. assertion of privilege."

[37] Sec. 28. Subject to reasonable conditions prescribed by law, the State [78] Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: "To
adopts and implements a policy of full public disclosure of all its put this case in perspective it should be stated at the outset that it does
transactions involving public interest. not concern a demand by a citizen for information under the freedom
of information guarantee of the Constitution."
[48] Section 2 of The Party-List System Act (Republic Act 7941) reads:
Supreme Court of the Philippines constitutional questions raised by them would have come to fore. Such
a scenario could have very well been presented to the Court in such
EN BANC manner, without the petitioners having had to violate a direct order
from their commanding officer. Instead, the Court has to resolve
G.R. NO. 170165, August 15, 2006 whether petitioners may be subjected to military discipline on account
of their defiance of a direct order of the AFP Chief of Staff.
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL.
ALEXANDER F. BALUTAN PETITIONERS, VS. LT./GEN. The solicited writs of certiorari and prohibition do not avail; the petition
GENEROSO S. SENGA AS CHIEF OF STAFF OF THE must be denied.
ARMED FORCES OF THE PHILIPPINES, COL. GILBERTO
JOSE C. ROA AS THE PRE-TRIAL INVESTIGATING I.
OFFICER, THE PROVOST MARSHALL GENERAL OF THE
ARMED FORCES OF THE PHILIPPINES AND THE The petitioners are high-ranking officers of the Armed Forces of the
GENERAL COURT-MARTIAL, RESPONDENTS. Philippines (AFP). Both petitioners, Brigadier General Francisco
Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col.
DECISION Balutan), belonged to the Philippine Marines. At the time of the subject
incidents, both Gen. Gudani and Col. Balutan were assigned to the
TINGA, J.: Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant
&
Commandant of Cadets.[2]

A most dangerous general proposition is foisted on the Court — that


On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited
soldiers who defy orders of their superior officers are exempt from the
several senior officers of the AFP to appear at a public hearing before
strictures of military law and discipline if such defiance is predicated on
the Senate Committee on National Defense and Security (Senate
an act otherwise valid under civilian law. Obedience and deference to
Committee) scheduled on 28 September 2005. The hearing was
the military chain of command and the President as commander-in-
scheduled after topics concerning the conduct of the 2004 elections
chief are the cornerstones of a professional military in the firm cusp of
emerged in the public eye, particularly allegations of massive cheating
civilian control. These values of obedience and deference expected of
and the surfacing of copies of an audio excerpt purportedly of a phone
military officers are content-neutral, beyond the sway of the officer's
conversation between President Gloria Macapagal Arroyo and an
own sense of what is prudent or rash, or more elementally, of right or
official of the Commission on Elections (COMELEC) widely reputed
wrong. A self-righteous military invites itself as the scoundrel's activist
as then COMELEC Commissioner Virgilio Garcillano. At the time of
solution to the "ills" of participatory democracy.
the 2004 elections, Gen. Gudani had been designated as commander,
and Col. Balutan a member, of "Joint Task Force Ranao" by the AFP
Petitioners seek the annulment of a directive from President Gloria
Southern Command. "Joint Task Force Ranao" was tasked with the
Macapagal-Arroyo[1] enjoining them and other military officers from
maintenance of peace and order during the 2004 elections in the
testifying before Congress without the President's consent. Petitioners
provinces of Lanao del Norte and Lanao del Sur.[3] `
also pray for injunctive relief against a pending preliminary investigation
against them, in preparation for possible court-martial proceedings,
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General
initiated within the military justice system in connection with
Generoso Senga (Gen. Senga) were among the several AFP officers
petitioners' violation of the aforementioned directive.
who received a letter invitation from Sen. Biazon to attend the 28
September 2005 hearing. On 23 September 2005, Gen. Senga replied
The Court is cognizant that petitioners, in their defense, invoke weighty
through a letter to Sen. Biazon that he would be unable to attend the
constitutional principles that center on fundamental freedoms enshrined
hearing due to a previous commitment in Brunei, but he nonetheless
in the Bill of Rights. Although these concerns will not be addressed to
"directed other officers from the AFP who were invited to attend the
the satisfaction of petitioners, the Court recognizes these values as of
hearing."[4]
paramount importance to our civil society, even if not determinative of
the resolution of this petition. Had the relevant issue before us been the
On 26 September 2005, the Office of the Chief of Staff of the AFP
right of the Senate to compel the testimony of petitioners, the
issued a Memorandum addressed to the Superintendent of the PMA
Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. take Gen. Senga's call.[8]
Hernando DCA Iriberri in behalf of Gen. Senga.[5] Noting that Gen.
Gudani and Col. Balutan had been invited to attend the Senate A few hours after Gen. Gudani and Col. Balutan had concluded their
Committee hearing on 28 September 2005, the Memorandum directed testimony, the office of Gen. Senga issued a statement which noted that
the two officers to attend the hearing.[6] Conformably, Gen. Gudani and the two had appeared before the Senate Committee "in spite of the fact
Col. Balutan filed their respective requests for travel authority addressed that a guidance has been given that a Presidential approval should be
to the PMA Superintendent. sought prior to such an appearance;" that such directive was "in keeping
with the time[-]honored principle of the Chain of Command;" and that
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, the two officers "disobeyed a legal order, in violation of A[rticles of]
requesting the postponement of the hearing scheduled for the following W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be
day, since the AFP Chief of Staff was himself unable to attend said subjected to General Court Martial proceedings x x x" Both Gen.
hearing, and that some of the invited officers also could not attend as Gudani and Col. Balutan were likewise relieved of their assignments
they were "attending to other urgent operational matters." By this time, then.[9]
both Gen. Gudani and Col. Balutan had already departed Baguio for
Manila to attend the hearing. On the very day of the hearing, 28 September 2005, President Gloria-
Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The
Then on the evening of 27 September 2005, at around 10:10 p.m., a OSG notes that the E.O. "enjoined officials of the executive
message was transmitted to the PMA Superintendent from the office of department including the military establishment from appearing in any
Gen. Senga, stating as follows: legislative inquiry without her approval."[10] This Court subsequently
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP ruled on the constitutionality of the said executive order in Senate v.
PERSONNEL SHALL APPEAR BEFORE ANY Ermita.[11] The relevance of E.O. 464 and Senate to the present petition
CONGRESSIONAL OR SENATE HEARING WITHOUT HER shall be discussed forthwith.
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP
AND LTC ALEXANDER BALUTAN PA (GSC) In the meantime, on 30 September 2005, petitioners were directed by
ACCORDINGLY.[7] General Senga, through Col. Henry A. Galarpe of the AFP Provost
Marshal General, to appear before the Office of the Provost Marshal
The following day, Gen. Senga sent another letter to Sen. Biazon, this
General (OPMG) on 3 October 2005 for investigation. During their
time informing the senator that "no approval has been granted by the
appearance before Col. Galarpe, both petitioners invoked their right to
President to any AFP officer to appear" before the hearing scheduled
remain silent.[12] The following day, Gen. Gudani was compulsorily
on that day. Nonetheless, both Gen. Gudani and Col. Balutan were
retired from military service, having reached the age of 56.[13]
present as the hearing started, and they both testified as to the conduct
of the 2004 elections.
In an Investigation Report dated 6 October 2005, the OPMG
recommended that petitioners be charged with violation of Article of
The Office of the Solicitor General (OSG), representing the
War 65, on willfully disobeying a superior officer, in relation to Article
respondents before this Court, has offered additional information
of War 97, on conduct prejudicial to the good order and military
surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG
discipline.[14] As recommended, the case was referred to a Pre-Trial
manifests that the couriers of the AFP Command Center had attempted
Investigation Officer (PTIO) preparatory to trial by the General Court
to deliver the radio message to Gen. Gudani's residence in a subdivision
Martial (GCM).[15] Consequently, on 24 October 2005, petitioners were
in Parañaque City late in the night of 27 September 2005, but they were
separately served with Orders respectively addressed to them and signed
not permitted entry by the subdivision guards. The next day, 28
by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating
September 2005, shortly before the start of the hearing, a copy of Gen.
Officer of the PTIO. The Orders directed petitioners to appear in
Senga's letter to Sen. Biazon sent earlier that day was handed at the
person before Col. Roa at the Pre-Trial Investigation of the Charges for
Senate by Commodore Amable B. Tolentino of the AFP Office for
violation of Articles 65[16] and 97[17] of Commonwealth Act No. 408,[18]
Legislative Affairs to Gen. Gudani, who replied that he already had a
and to submit their counter-affidavits and affidavits of witnesses at the
copy. Further, Gen. Senga called Commodore Tolentino on the latter's
Office of the Judge Advocate General.[19] The Orders were
cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused.
accompanied by respective charge sheets against petitioners, accusing
In response, Gen. Senga instructed Commodore Tolentino to inform
them of violating Articles of War 65 and 97.
Gen. Gudani that "it was an order," yet Gen. Gudani still refused to
It was from these premises that the present petition for certiorari and the Court, having been commonly alleged by petitioners and the OSG
prohibition was filed, particularly seeking that (1) the order of President (for respondents). Petitioners were called by the Senate Committee to
Arroyo coursed through Gen. Senga preventing petitioners from testify in its 28 September 2005 hearing. Petitioners attended such
testifying before Congress without her prior approval be declared hearing and testified before the Committee, despite the fact that the day
unconstitutional; (2) the charges stated in the charge sheets against before, there was an order from Gen. Senga (which in turn was sourced
petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and "per instruction" from President Arroyo) prohibiting them from
their successors-in-interest or persons acting for and on their behalf or testifying without the prior approval of the President. Petitioners do not
orders, be permanently enjoined from proceeding against petitioners, as precisely admit before this Court that they had learned of such order
a consequence of their having testified before the Senate on 28 prior to their testimony, although the OSG asserts that at the very least,
September 2005.[20] Gen. Gudani already knew of such order before he testified.[22] Yet
while this fact may be ultimately material in the court-martial
Petitioners characterize the directive from President Arroyo requiring proceedings, it is not determinative of this petition, which as stated
her prior approval before any AFP personnel appear before Congress as earlier, does not proffer as an issue whether petitioners are guilty of
a "gag order," which violates the principle of separation of powers in violating the Articles of War.
government as it interferes with the investigation of the Senate
Committee conducted in aid of legislation. They also equate the "gag What the Court has to consider though is whether the violation of the
order" with culpable violation of the Constitution, particularly in aforementioned order of Gen. Senga, which emanated from the
relation to the public's constitutional right to information and President, could lead to any investigation for court-martial of
transparency in matters of public concern. Plaintively, petitioners claim petitioners. It has to be acknowledged as a general principle[23] that AFP
that "the Filipino people have every right to hear the [petitioners'] personnel of whatever rank are liable under military law for violating a
testimonies," and even if the "gag order" were unconstitutional, it still direct order of an officer superior in rank. Whether petitioners did
was tantamount to "the crime of obstruction of justice." Petitioners violate such an order is not for the Court to decide, but it will be
further argue that there was no law prohibiting them from testifying necessary to assume, for the purposes of this petition, that petitioners
before the Senate, and in fact, they were appearing in obeisance to the did so.
authority of Congress to conduct inquiries in aid of legislation.
III.
Finally, it is stressed in the petition that Gen. Gudani was no longer
subject to military jurisdiction on account of his compulsory retirement Preliminarily, we must discuss the effect of E.O. 464 and the Court's
on 4 October 2005. It is pointed out that Article 2, Title I of the ruling in Senate on the present petition. Notably, it is not alleged that
Articles of War defines persons subject to military law as "all officers petitioners were in any way called to task for violating E.O. 464,
and soldiers in the active service" of the AFP. but instead, they were charged for violating the direct order of
Gen. Senga not to appear before the Senate Committee, an order
II. that stands independent of the executive order. Distinctions are
called for, since Section 2(b) of E.O. 464 listed "generals and flag
We first proceed to define the proper litigable issues. Notably, the guilt officers of the Armed Forces of the Philippines and such other officers
or innocence of petitioners in violating Articles 65 and 97 of the who in the judgment of the Chief of Staff are covered by the executive
Articles of War is not an issue before this Court, especially considering privilege," as among those public officials required in Section 3 of E.O.
that per records, petitioners have not yet been subjected to court martial 464 "to secure prior consent of the President prior to appearing before
proceedings. Owing to the absence of such proceedings, the correct either House of Congress." The Court in Senate declared both Section
inquiry should be limited to whether respondents could properly initiate 2(b) and Section 3 void,[24] and the impression may have been left
such proceedings preparatory to a formal court-martial, such as the following Senate that it settled as doctrine, that the President is
aforementioned preliminary investigation, on the basis of petitioners' prohibited from requiring military personnel from attending
acts surrounding their testimony before the Senate on 28 September congressional hearings without having first secured prior presidential
2005. Yet this Court, consistent with the principle that it is not a trier of consent. That impression is wrong.
facts at first instance,[21] is averse to making any authoritative findings of
fact, for that function is first for the court-martial court to fulfill. Senate turned on the nature of executive privilege, a presidential
prerogative which is encumbered by significant limitations. Insofar as
Thus, we limit ourselves to those facts that are not controverted before E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of Citing Colonel Winthrop's treatise on Military Law, the Court further
executive control also comes into consideration.[25] However, the ability stated:
of the President to require a military official to secure prior consent We have gone through the treatise of Colonel Winthrop and We find
before appearing before Congress pertains to a wholly different and the following passage which goes against the contention of the
independent specie of presidential authority—the commander-in-chief petitioners, viz —
powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by 3. Offenders in general — Attaching of
the same degree of restriction as that which may attach to executive jurisdiction. It has further been held, and
privilege or executive control. is now settled law, in regard to military
offenders in general, that if the military
During the deliberations in Senate, the Court was very well aware of the jurisdiction has once duly attached to
pendency of this petition as well as the issues raised herein. The them previous to the date of the
decision in Senate was rendered with the comfort that the nullification of termination of their legal period of
portions of E.O. 464 would bear no impact on the present petition service, they may be brought to trial by
since petitioners herein were not called to task for violating the court-martial after that date, their
executive order. Moreover, the Court was then cognizant that Senate discharge being meanwhile withheld.
and this case would ultimately hinge on disparate legal issues. This principle has mostly been applied
Relevantly, Senate purposely did not touch upon or rule on the faculty of to cases where the offense was
the President, under the aegis of the commander-in-chief powers[26] to committed just prior to the end of the
require military officials from securing prior consent before appearing term. In such cases the interests of
before Congress. The pertinent factors in considering that question are discipline clearly forbid that the offender
markedly outside of those which did become relevant in adjudicating should go unpunished. It is held
the issues raised in Senate. It is in this petition that those factors come therefore that if before the day on
into play. which his service legally terminates
and his right to a discharge is
At this point, we wish to dispose of another peripheral issue before we complete, proceedings with a view to
strike at the heart of the matter. General Gudani argues that he can no trial are commenced against him —
longer fall within the jurisdiction of the court-martial, considering his as by arrest or the service of charges,
retirement last 4 October 2005. He cites Article 2, Title I of — the military jurisdiction will fully
Commonwealth Act No. 408, which defines persons subject to military attach and once attached may be
law as, among others, "all officers and soldiers in the active service of continued by a trial by court-martial
the [AFP]," and points out that he is no longer in the active service. ordered and held after the end of the
term of the enlistment of the accused
This point was settled against Gen. Gudani's position in Abadilla v. x x x [29]
Ramos,[27] where the Court declared that an officer whose name was
dropped from the roll of officers cannot be considered to be outside Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch
the jurisdiction of military authorities when military justice proceedings as both the acts complained of and the initiation of the proceedings
were initiated against him before the termination of his service. Once against him occurred before he compulsorily retired on 4 October 2005.
jurisdiction has been acquired over the officer, it continues until his case We see no reason to unsettle the Abadilla doctrine. The OSG also
is terminated. Thus, the Court held: points out that under Section 28 of Presidential Decree No. 1638, as
The military authorities had jurisdiction over the person of Colonel amended, "[a]n officer or enlisted man carried in the retired list [of the
Abadilla at the time of the alleged offenses. This jurisdiction having Armed Forces of the Philippines] shall be subject to the Articles of War
been vested in the military authorities, it is retained up to the end of the x x x"[30] To this citation, petitioners do not offer any response, and in
proceedings against Colonel Abadilla. Well-settled is the rule that fact have excluded the matter of Gen. Gudani's retirement as an issue in
jurisdiction once acquired is not lost upon the instance of the parties their subsequent memorandum.
but continues until the case is terminated.[28]
IV.
otherwise be sanctioned under civilian law.
We now turn to the central issues.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col.
Petitioners wish to see annulled the "gag order" that required them to Kapunan was ordered confined under "house arrest" by then Chief of
secure presidential consent prior to their appearance before the Senate, Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as
claiming that it violates the constitutional right to information and a condition for his house arrest, that he may not issue any press
transparency in matters of public concern; or if not, is tantamount at statements or give any press conference during his period of detention.
least to the criminal acts of obstruction of justice and grave coercion. The Court unanimously upheld such restrictions, noting:
However, the proper perspective from which to consider this issue [T]he Court is of the view that such is justified by the requirements of
entails the examination of the basis and authority of the President to military discipline. It cannot be gainsaid that certain liberties of
issue such an order in the first place to members of the AFP and the persons in the military service, including the freedom of speech,
determination of whether such an order is subject to any limitations. may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the
The vitality of the tenet that the President is the commander-in-chief of effectiveness of the military in fulfilling its duties under the law
the Armed Forces is most crucial to the democratic way of life, to depends to a large extent on the maintenance of discipline within
civilian supremacy over the military, and to the general stability of our its ranks. Hence, lawful orders must be followed without question
representative system of government. The Constitution reposes final and rules must be faithfully complied with, irrespective of a
authority, control and supervision of the AFP to the President, a civilian soldier's personal views on the matter. It is from this viewpoint that
who is not a member of the armed forces, and whose duties as the restrictions imposed on petitioner Kapunan, an officer in the AFP,
commander-in-chief represent only a part of the organic duties imposed have to be considered.[39]
upon the office, the other functions being clearly civil in nature.[31]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that
Civilian supremacy over the military also countermands the notion that
the military way of life circumscribes several of the cherished freedoms
the military may bypass civilian authorities, such as civil courts, on
of civilian life. It is part and parcel of the military package. Those who
matters such as conducting warrantless searches and seizures.[32]
cannot abide by these limitations normally do not pursue a military
career and instead find satisfaction in other fields; and in fact many of
Pursuant to the maintenance of civilian supremacy over the military, the
those discharged from the service are inspired in their later careers
Constitution has allocated specific roles to the legislative and executive
precisely by their rebellion against the regimentation of military life.
branches of government in relation to military affairs. Military
Inability or unwillingness to cope with military discipline is not a stain
appropriations, as with all other appropriations, are determined by
on character, for the military mode is a highly idiosyncratic path which
Congress, as is the power to declare the existence of a state of war.[33]
persons are not generally conscripted into, but volunteer themselves to
Congress is also empowered to revoke a proclamation of martial law or
be part of. But for those who do make the choice to be a soldier,
the suspension of the writ of habeas corpus.[34] The approval of the
significant concessions to personal freedoms are expected. After all, if
Commission on Appointments is also required before the President can
need be, the men and women of the armed forces may be commanded
promote military officers from the rank of colonel or naval captain.[35]
upon to die for country, even against their personal inclinations.
Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-
It may be so that military culture is a remnant of a less democratic era,
in-chief clause which is fertile in meaning and implication as to
yet it has been fully integrated into the democratic system of
whatever inherent martial authority the President may possess.[36]
governance. The constitutional role of the armed forces is as protector
of the people and of the State.[40] Towards this end, the military must
The commander-in-chief provision in the Constitution is denominated
insist upon a respect for duty and a discipline without counterpart in
as Section 18, Article VII, which begins with the simple declaration that
civilian life.[41] The laws and traditions governing that discipline have a
"[t]he President shall be the Commander-in-Chief of all armed forces of
long history; but they are founded on unique military exigencies as
the Philippines x x x"[37] Outside explicit constitutional limitations, such
powerful now as in the past.[42] In the end, it must be borne in mind
as those found in Section 5, Article XVI, the commander-in-chief clause
that the armed forces has a distinct subculture with unique needs, a
vests on the President, as commander-in-chief, absolute authority over
specialized society separate from civilian society. [43] In the elegant prose
the persons and actions of the members of the armed forces. Such
of the eminent British military historian, John Keegan:
authority includes the ability of the President to restrict the travel,
movement and speech of military officers, activities which may
[Warriors who fight wars have] values and skills [which] are not those of country's recent past is marked by regime changes wherein active
politicians and diplomats. They are those of a world apart, a very military dissent from the chain of command formed a key, though not
ancient world, which exists in parallel with the everyday world but does exclusive, element. The Court is not blind to history, yet it is a judge not
not belong to it. Both worlds change over time, and the warrior world of history but of the Constitution. The Constitution, and indeed our
adopts in step to the civilian. It follows it, however, at a distance. The modern democratic order, frown in no uncertain terms on a politicized
distance can never be closed, for the culture of the warrior can never be military, informed as they are on the trauma of absolute martial rule.
that of civilization itself.....[44] Our history might imply that a political military is part of the natural
order, but this view cannot be affirmed by the legal order. The
Critical to military discipline is obeisance to the military chain of
evolutionary path of our young democracy necessitates a reorientation
command. Willful disobedience of a superior officer is punishable by
from this view, reliant as our socio-political culture has become on it. At
court-martial under Article 65 of the Articles of War.[45] "An individual
the same time, evolution mandates a similar demand that our system of
soldier is not free to ignore the lawful orders or duties assigned by his
governance be more responsive to the needs and aspirations of the
immediate superiors. For there would be an end of all discipline if the
citizenry, so as to avoid an environment vulnerable to a military
seaman and marines on board a ship of war [or soldiers deployed in the
apparatus able at will to exert an undue influence in our polity.
field], on a distant service, were permitted to act upon their own
opinion of their rights [or their opinion of the President"s intent], and
Of possibly less gravitas, but of equal importance, is the principle that
to throw off the authority of the commander whenever they
mobility of travel is another necessary restriction on members of the
supposed it to be unlawfully exercised."[46]
military. A soldier cannot leave his/her post without the consent of the
commanding officer. The reasons are self-evident. The commanding
Further traditional restrictions on members of the armed forces are
officer has to be aware at all times of the location of the troops under
those imposed on free speech and mobility. Kapunan is ample precedent
command, so as to be able to appropriately respond to any exigencies.
in justifying that a soldier may be restrained by a superior officer from
For the same reason, commanding officers have to be able to restrict
speaking out on certain matters. As a general rule, the discretion of a
the movement or travel of their soldiers, if in their judgment, their
military officer to restrain the speech of a soldier under his/her
presence at place of call of duty is necessary. At times, this may lead to
command will be accorded deference, with minimal regard if at all to
unsentimental, painful consequences, such as a soldier being denied
the reason for such restraint. It is integral to military discipline that the
permission to witness the birth of his first-born, or to attend the funeral
soldier's speech be with the consent and approval of the military
of a parent. Yet again, military life calls for considerable personal
commander.
sacrifices during the period of conscription, wherein the higher duty is
not to self but to country.
The necessity of upholding the ability to restrain speech becomes even
more imperative if the soldier desires to speak freely on political
Indeed, the military practice is to require a soldier to obtain permission
matters. The Constitution requires that "[t]he armed forces shall be
from the commanding officer before he/she may leave his destination.
insulated from partisan politics," and that "[n]o member of the military
A soldier who goes from the properly appointed place of duty or
shall engage directly or indirectly in any partisan political activity, except
absents from his/her command, guard, quarters, station, or camp
to vote."[47] Certainly, no constitutional provision or military
without proper leave is subject to punishment by court-martial.[48] It is
indoctrination will eliminate a soldier's ability to form a personal
even clear from the record that petitioners had actually requested for
political opinion, yet it is vital that such opinions be kept out of the
travel authority from the PMA in Baguio City to Manila, to attend the
public eye. For one, political belief is a potential source of discord
Senate Hearing.[49] Even petitioners are well aware that it was necessary
among people, and a military torn by political strife is incapable of
for them to obtain permission from their superiors before they could
fulfilling its constitutional function as protectors of the people and of
travel to Manila to attend the Senate Hearing.
the State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against the
It is clear that the basic position of petitioners impinges on these
President, the commander-in-chief of the armed forces. Soldiers are
fundamental principles we have discussed. They seek to be exempted
constitutionally obliged to obey a President they may dislike or distrust.
from military justice for having traveled to the Senate to testify before
This fundamental principle averts the country from going the way of
the Senate Committee against the express orders of Gen. Senga, the
banana republics.
AFP Chief of Staff. If petitioners' position is affirmed, a considerable
exception would be carved from the unimpeachable right of military
Parenthetically, it must be said that the Court is well aware that our
officers to restrict the speech and movement of their juniors. The
ruinous consequences to the chain of command and military discipline holds significant control over the armed forces in matters such as
simply cannot warrant the Court's imprimatur on petitioner's position. budget appropriations and the approval of higher-rank promotions,[51]
yet it is on the President that the Constitution vests the title as
V. commander-in-chief and all the prerogatives and functions appertaining
to the position. Again, the exigencies of military discipline and the chain
Still, it would be highly myopic on our part to resolve the issue solely on of command mandate that the President's ability to control the
generalities surrounding military discipline. After all, petitioners seek to individual members of the armed forces be accorded the utmost
impress on us that their acts are justified as they were responding to an respect. Where a military officer is torn between obeying the President
invitation from the Philippine Senate, a component of the legislative and obeying the Senate, the Court will without hesitation affirm that the
branch of government. At the same time, the order for them not to officer has to choose the President. After all, the Constitution
testify ultimately came from the President, the head of the executive prescribes that it is the President, and not the Senate, who is the
branch of government and the commander-in-chief of the armed commander-in-chief of the armed forces.[52]
forces.
At the same time, the refusal of the President to allow members of the
Thus, we have to consider the question: may the President prevent a military to appear before Congress is still subject to judicial relief. The
member of the armed forces from testifying before a legislative inquiry? Constitution itself recognizes as one of the legislature's functions is the
We hold that the President has constitutional authority to do so, by conduct of inquiries in aid of legislation.[53] Inasmuch as it is ill-advised
virtue of her power as commander-in-chief, and that as a consequence a for Congress to interfere with the President's power as commander-in-
military officer who defies such injunction is liable under military chief, it is similarly detrimental for the President to unduly interfere with
justice. At the same time, we also hold that any chamber of Congress Congress's right to conduct legislative inquiries. The impasse did not
which seeks the appearance before it of a military officer against the come to pass in this petition, since petitioners testified anyway despite
consent of the President has adequate remedies under law to compel the presidential prohibition. Yet the Court is aware that with its
such attendance. Any military official whom Congress summons to pronouncement today that the President has the right to require prior
testify before it may be compelled to do so by the President. If the consent from members of the armed forces, the clash may soon loom
President is not so inclined, the President may be commanded by or actualize.
judicial order to compel the attendance of the military officer. Final
judicial orders have the force of the law of the land which the President We believe and hold that our constitutional and legal order sanctions a
has the duty to faithfully execute.[50] modality by which members of the military may be compelled to attend
legislative inquiries even if the President desires otherwise, a modality
Explication of these principles is in order. which does not offend the Chief Executive's prerogatives as
commander-in-chief. The remedy lies with the courts.
As earlier noted, we ruled in Senate that the President may not issue a
blanket requirement of prior consent on executive officials summoned The fact that the executive branch is an equal, coordinate branch of
by the legislature to attend a congressional hearing. In doing so, the government to the legislative creates a wrinkle to any basic rule that
Court recognized the considerable limitations on executive privilege, persons summoned to testify before Congress must do so. There is
and affirmed that the privilege must be formally invoked on specified considerable interplay between the legislative and executive branches,
grounds. However, the ability of the President to prevent military informed by due deference and respect as to their various constitutional
officers from testifying before Congress does not turn on functions. Reciprocal courtesy idealizes this relationship; hence, it is
executive privilege, but on the Chief Executive's power as only as a last resort that one branch seeks to compel the other to a
commander-in-chief to control the actions and speech of particular mode of behavior. The judiciary, the third coordinate branch
members of the armed forces. The President's prerogatives as of government, does not enjoy a similar dynamic with either the
commander-in-chief are not hampered by the same limitations as legislative or executive branches. Whatever weakness inheres on judicial
in executive privilege. power due to its inability to originate national policies and legislation,
such is balanced by the fact that it is the branch empowered by the
Our ruling that the President could, as a general rule, require military Constitution to compel obeisance to its rulings by the other branches of
officers to seek presidential approval before appearing before Congress government.
is based foremost on the notion that a contrary rule unduly diminishes
the prerogatives of the President as commander-in-chief. Congress As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon
Committee,[55] among others, the Court has not shirked from reviewing appearing in or affected by such inquiries be respected, an imposition
the exercise by Congress of its power of legislative inquiry.[56] Arnault that obligates Congress to adhere to the guarantees in the Bill of Rights.
recognized that the legislative power of inquiry and the process to
enforce it, "is an essential and appropriate auxiliary to the legislative These abuses are, of course, remediable before the courts, upon the
function."[57] On the other hand, Bengzon acknowledged that the power proper suit filed by the persons affected, even if they belong to the
of both houses of Congress to conduct inquiries in aid of legislation is executive branch. Nonetheless, there may be exceptional circumstances'
not "absolute or unlimited", and its exercise is circumscribed by Section wherein a clear pattern of abuse of the legislative power of inquiry
21, Article VI of the Constitution.[58] From these premises, the Court might be established, resulting in palpable violations of the rights
enjoined the Senate Blue Ribbon Committee from requiring the guaranteed to members of the executive department under the Bill of
petitioners in Bengzon from testifying and producing evidence before the Rights. In such instances, depending on the particulars of each case,
committee, holding that the inquiry in question did not involve any attempts by the Executive Branch to forestall these abuses may be
intended legislation. accorded judicial sanction[59].

In Senate, the Court ruled that the President could not impose a blanket
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the
prohibition barring executive officials from testifying before Congress
constitutional scope and limitations on the constitutional power of
without the President's consent notwithstanding the invocation of
congressional inquiry. Thus:
executive privilege to justify such prohibition. The Court did not rule
As discussed in Arnault, the power of inquiry, "with process to enforce
that the power to conduct legislative inquiry ipso facto superseded the
it," is grounded on the necessity of information in the legislative
claim of executive privilege, acknowledging instead that the viability of
process. If the information possessed by executive officials on the
executive privilege stood on a case to case basis. Should neither branch
operation of their offices is necessary for wise legislation on that
yield to the other branch's assertion, the constitutional recourse is to the
subject, by parity of reasoning, Congress has the right to that
courts, as the final arbiter if the dispute. It is only the courts that can
information and the power to compel the disclosure thereof.
compel, with conclusiveness, attendance or non-attendance in legislative
inquiries.
As evidenced by the American experience during the so-called
"McCarthy era", however, the right of Congress to conduct inquirites in
Following these principles, it is clear that if the President or the Chief of
aid of legislation is, in theory, no less susceptible to abuse than
Staff refuses to allow a member of the AFP to appear before Congress,
executive or judicial power. It may thus be subjected to judicial review
the legislative body seeking such testimony may seek judicial relief to
pursuant to the Court's certiorari powers under Section 1, Article VIII
compel the attendance. Such judicial action should be directed at the
of the Constitution.
heads of the executive branch or the armed forces, the persons who
wield authority and control over the actions of the officers concerned.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry
The legislative purpose of such testimony, as well as any defenses
itself might not properly be in aid of legislation, and thus beyond the
against the same — whether grounded on executive privilege, national
constitutional power of Congress. Such inquiry could not usurp judicial
security or similar concerns — would be accorded due judicial
functions. Parenthetically, one possible way for Congress to avoid such
evaluation. All the constitutional considerations pertinent to either
result as occurred in Bengzon is to indicate in its invitations to the public
branch of government may be raised, assessed, and ultimately weighed
officials concerned, or to any person for that matter, the possible
against each other. And once the courts speak with finality, both
needed statute which prompted the need for the inquiry. Given such
branches of government have no option but to comply with the
statement in its invitations, along with the usual indication of the subject
decision of the courts, whether the effect of the decision is to their
of inquiry and the questions relative to and in furtherance thereof, there
liking or disfavor.
would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Courts are empowered, under the constitutional principle of judicial
review, to arbitrate disputes between the legislative and executive
Section 21, Article VI likewise establishes critical safeguards that
branches of government on the proper constitutional parameters of
proscribe the legislative power of inquiry. The provision requires that
power.[60] This is the fair and workable solution implicit in the
the inquiry be done in accordance with the Senate or House's duly
constitutional allocation of powers among the three branches of
published rules of procedure, necessarily implying the constitutional
government. The judicial filter helps assure that the particularities of
infirmity of an inquiry conducted without duly published rules of
each case would ultimately govern, rather than any overarching principle
procedure. Section 21 also mandates that the rights of persons
unduly inclined towards one branch of government at the expense of SO ORDERED.
the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
issues before one branch is compelled to yield to the other. Moreover, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr., Chico-Nazario, Garcia
judicial review does not preclude the legislative and executive branches and Velasco, Jr., JJ., concur.
from negotiating a mutually acceptable solution to the impasse. After Corona, J., on leave.
all, the two branches, exercising as they do functions and responsibilities Azcuna, J., on official business.
that are political in nature, are free to smooth over the thorns in their
relationship with a salve of their own choosing.
[36] Laurence Tribe notes in his opus, American Constitutional Law, that
And if emphasis be needed, if the courts so rule, the duty falls on "[m]ore recently, it has become the practice to refer to the Commander
the shoulders of the President, as commander-in-chief, to in Chief Clause for whatever inherent martial authority the Executive
authorize the appearance of the military officers before Congress. may possess." L. Tribe, I American Constitutional Law, 3rd ed. (2000),
Even if the President has earlier disagreed with the notion of at 658. A similar trend appears to have developed in this jurisdiction.
officers appearing before the legislature to testify, the Chief
Executive is nonetheless obliged to comply with the final orders [41] Schelsinger v. Councilman, 420 US 738, 757 (1975). "[T]he rights of men
of the courts. in the armed forces must perforce be conditioned to meet certain
overriding demands of discipline and duty, and the civil courts are not
Petitioners have presented several issues relating to the tenability or the agencies which must determine the precise balance to be struck in
wisdom of the President's order on them and other military officers not this adjustment." Burns v. Wilson, 346 U.S. 138, 140 (1952); citing Re:
to testify before Congress without the President's consent. Yet these Grimley (United States v. Grimley) 137 U.S. 147, 34 L ed 636, 11 S Ct 52
issues ultimately detract from the main point — that they testified (1890); Hiatt v. Brown, 339 U.S. 103, 94 L ed. 691, 70 S Ct 495 (1950).
before the Senate despite an order from their commanding officer and
their commander-in-chief for them not to do so,[61] in contravention of [56] "The "allocation of constitutional boundaries" is a task that this
the traditions of military discipline which we Court must perform under the Constitution.... The Court is thus of the
considered view that it has jurisdiction over the present controversy for
affirm today. The issues raised by petitioners could have very well been the purpose of determining the scope and extent of the power of the
raised and properly adjudicated if the proper procedure was observed. Senate Blue Ribbon Committee to conduct inquiries into private affairs
Petitioners could have been appropriately allowed to testify before the in purported aid of legislation." Bengzon, Jr. v. Senate Blue Ribbon
Senate without having to countermand their Commander-in-chief and Committee, id., at 777.
superior officer under the setup we have prescribed.
[60] See e.g., Angara v. Electoral Commission, 63 Phil. 139, 156-157 (1936).
We consider the other issues raised by petitioners unnecessary to the Further, "[t]he role of the judiciary in mapping the metes and bounds of
resolution of this petition. powers of the different branches of government was redefined in the
1987 Constitution which expanded the jurisdiction of this Court to
Petitioners may have been of the honest belief that they were defying a include the determination of grave abuse of discretion amounting to
direct order of their Commander-in-Chief and Commanding General in lack or excess of jurisdiction on the part of any branch or
obeisance to a paramount idea formed within their consciences, which instrumentality of the Government." Macalintal v. COMELEC, 453 Phil.
could not be lightly ignored. Still, the Court, in turn, is guided by the 586, 740 (2003), J. Puno, Concurring and Dissenting Opinion.
superlative principle that is the Constitution, the embodiment of the
national conscience. The Constitution simply does not permit the [61] As stated earlier though, it is controverted whether petitioners were
infraction which petitioners have allegedly committed, and moreover, actually aware of the directive from the President before they testified
provides for an orderly manner by which the same result could have before the Senate. See note 21. This factual matter, which will necessarily
been achieved without offending constitutional principles. impact on the deliberate intent of the petitioners, is for the court-martial
to decide.
WHEREFORE, the petition is DENIED. No pronouncement as to
costs.
Supreme Court of the Philippines
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á
EN BANC RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL
ARROYO TO DIRECT THE CANCELLATION OF THE ZTE
G.R. No. 180643, March 25, 2008 CONTRACT

ROMULO L. NERI, PETITIONER, vs. SENATE (3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson,
COMMITTEE ON ACCOUNTABILITY OF PUBLIC entitled RESOLUTION DIRECTING THE COMMITTEE ON
OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE NATIONAL DEFENSE AND SECURITY TO CONDUCT AN
ON TRADE AND COMMERCE, AND SENATE INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, SECURITY IMPLICATIONS OF AWARDING THE NATIONAL
RESPONDENTS. BROADBAND NETWORK CONTRACT TO THE CHINESE
FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT
DECISION COMPANY LIMITED (ZTE CORPORATION) WITH THE END
IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT
LEONARDO-DE CASTRO, J.: WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY
AND TERRITORIAL INTEGRITY.
At bar is a petition for certiorari under Rule 65 of the Rules of Court
assailing the show cause Letter[1] dated November 22, 2007 and
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor
contempt Order[2] dated January 30, 2008 concurrently issued by
Santiago, entitled RESOLUTION DIRECTING THE PROPER
respondent Senate Committees on Accountability of Public Officers
SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID
and Investigations,[3] Trade and Commerce,[4] and National Defense and
OF LEGISLATION, ON THE LEGAL AND ECONOMIC
Security[5] against petitioner Romulo L. Neri, former Director General
JUSTIFICATION OF THE NATIONAL BROADBAND
of the National Economic and Development Authority (NEDA).
NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.
The facts, as culled from the pleadings, are as follows:
At the same time, the investigation was claimed to be relevant to the
consideration of three (3) pending bills in the Senate, to wit:
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
1. Senate Bill No. 1793, introduced by
Telecommunications Equipment (ZTE) for the supply of equipment
Senator Mar Roxas, entitled AN ACT
and services for the National Broadband Network (NBN) Project in the
SUBJECTING TREATIES,
amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
INTERNATIONAL OR EXECUTIVE
Project was to be financed by the People's Republic of China.
AGREEMENTS INVOLVING
FUNDING IN THE
In connection with this NBN Project, various Resolutions were
PROCUREMENT OF
introduced in the Senate, as follows:
INFRASTRUCTURE PROJECTS,
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr.,
GOODS, AND CONSULTING
entitled RESOLUTION DIRECTING THE BLUE RIBBON
SERVICES TO BE INCLUDED IN
COMMITTEE AND THE COMMITTEE ON TRADE AND
THE SCOPE AND APPLICATION
INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION,
OF PHILIPPINE PROCUREMENT
THE CIRCUMSTANCES LEADING TO THE APPROVAL OF
LAWS, AMENDING FOR THE
THE BROADBAND CONTRACT WITH ZTE AND THE ROLE
PURPOSE REPUBLIC ACT NO.
PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
9184, OTHERWISE KNOWN AS
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO
THE GOVERNMENT
HALE TO THE COURTS OF LAW THE PERSONS
PROCUREMENT REFORM ACT,
RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
AND FOR OTHER PURPOSES;
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN
THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.
2. Senate Bill No. 1794, introduced by
Senator Mar Roxas, entitled AN ACT Unrelenting, respondent Committees issued a Subpoena Ad Testificandum
IMPOSING SAFEGUARDS IN to petitioner, requiring him to appear and testify on November 20,
CONTRACTING LOANS 2007.
CLASSIFIED AS OFFICIAL
DEVELOPMENT ASSISTANCE, However, in the Letter dated November 15, 2007, Executive Secretary
AMENDING FOR THE PURPOSE Eduardo R. Ermita requested respondent Committees to dispense with
REPUBLIC ACT NO. 8182, AS petitioner's testimony on the ground of executive privilege. The
AMENDED BY REPUBLIC ACT pertinent portion of the letter reads:
NO. 8555, OTHERWISE KNOWN AS With reference to the subpoena ad testificandum issued to Secretary Romulo
THE OFFICIAL DEVELOPMENT Neri to appear and testify again on 20 November 2007 before the Joint
ASSISTANCE ACT OF 1996, AND Committees you chair, it will be recalled that Sec. Neri had already
FOR OTHER PURPOSES; and testified and exhaustively discussed the ZTE / NBN project, including
his conversation with the President thereon last 26 September 2007.
3. Senate Bill No. 1317, introduced by
Senator Miriam Defensor Santiago, Asked to elaborate further on his conversation with the President, Sec.
entitled AN ACT MANDATING Neri asked for time to consult with his superiors in line with the ruling
CONCURRENCE TO of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
INTERNATIONAL AGREEMENTS
AND EXECUTIVE AGREEMENTS. Specifically, Sec. Neri sought guidance on the possible invocation of
executive privilege on the following questions, to wit:
Respondent Committees initiated the investigation by sending
a) Whether the President followed up the (NBN) project?
invitations to certain personalities and cabinet officials involved in the
b) Were you dictated to prioritize the ZTE?
NBN Project. Petitioner was among those invited. He was summoned
c) Whether the President said to go ahead and approve the project after b
to appear and testify on September 18, 20, and 26 and October 25,
bribe?
2007. However, he attended only the September 26 hearing, claiming he
Following the ruling in Senate v. Ermita, the foregoing questions fall
was "out of town" during the other dates.
under conversations and correspondence between the President and
public officials which are considered executive privilege (Almonte v.
In the September 18, 2007 hearing, businessman Jose de Venecia III
Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
testified that several high executive officials and power brokers were
2002). Maintaining the confidentiality of conversations of the President
using their influence to push the approval of the NBN Project by the
is necessary in the exercise of her executive and policy decision making
NEDA. It appeared that the Project was initially approved as a Build-
process. The expectation of a President to the confidentiality of her
Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA
conversations and correspondences, like the value which we accord
acquiesced to convert it into a government-to- government project, to
deference for the privacy of all citizens, is the necessity for protection of
be financed through a loan from the Chinese Government.
the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. Disclosure of conversations
On September 26, 2007, petitioner testified before respondent
of the President will have a chilling effect on the President, and will
Committees for eleven (11) hours. He disclosed that then Commission
hamper her in the effective discharge of her duties and responsibilities,
on Elections (COMELEC) Chairman Benjamin Abalos offered him
if she is not protected by the confidentiality of her conversations.
P200 Million in exchange for his approval of the NBN Project. He
further narrated that he informed President Arroyo about the bribery
The context in which executive privilege is being invoked is that the
attempt and that she instructed him not to accept the bribe. However,
information sought to be disclosed might impair our diplomatic as well
when probed further on what they discussed about the NBN Project,
as economic relations with the People's Republic of China. Given the
petitioner refused to answer, invoking "executive privilege". In
confidential nature in which these information were conveyed to the
particular, he refused to answer the questions on (a) whether or not
President, he cannot provide the Committee any further details of these
President Arroyo followed up the NBN Project,[6] (b) whether or not
conversations, without disclosing the very thing the privilege is designed
she directed him to prioritize it,[7] and (c) whether or not she directed
to protect.
him to approve.[8]
loss of confidence of foreign investors and lenders in the Philippines.
In light of the above considerations, this Office is constrained to invoke The letter ended with a reiteration of petitioner's request that he "be
the settled doctrine of executive privilege as refined in Senate v. Ermita, furnished in advance" as to what else he needs to clarify so that he may
and has advised Secretary Neri accordingly. adequately prepare for the hearing.

Considering that Sec. Neri has been lengthily interrogated on the In the interim, on December 7, 2007, petitioner filed with this Court the
subject in an unprecedented 11-hour hearing, wherein he has answered present petition for certiorari assailing the show cause Letter dated
all questions propounded to him except the foregoing questions November 22, 2007.
involving executive privilege, we therefore request that his testimony on
20 November 2007 on the ZTE / NBN project be dispensed with. Respondent Committees found petitioner's explanations unsatisfactory.
Without responding to his request for advance notice of the matters
On November 20, 2007, petitioner did not appear before respondent
that he should still clarify, they issued the Order dated January 30, 2008,
Committees. Thus, on November 22, 2007, the latter issued the show
citing him in contempt of respondent Committees and ordering his
cause Letter requiring him to explain why he should not be cited in
arrest and detention at the Office of the Senate Sergeant-At-Arms until
contempt. The Letter reads:
such time that he would appear and give his testimony. The said Order
Since you have failed to appear in the said hearing, the Committees on
states:
Accountability of Public Officers and Investigations (Blue Ribbon),
ORDER
Trade and Commerce and National Defense and Security require you to
show cause why you should not be cited in contempt under Section 6,
For failure to appear and testify in the Committee's hearing on Tuesday,
Article 6 of the Rules of the Committee on Accountability of Public
September 18, 2007; Thursday, September 20, 2007; Thursday, October
Officers and Investigations (Blue Ribbon).
25, 2007; and Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him, which
The Senate expects your explanation on or before 2 December 2007.
thereby delays, impedes and obstructs, as it has in fact delayed, impeded
On November 29, 2007, petitioner replied to respondent Committees,
and obstructed the inquiry into the subject reported irregularities, AND
manifesting that it was not his intention to ignore the Senate hearing
for failure to explain satisfactorily why he should not be cited for
and that he thought the only remaining questions were those he claimed
contempt (Neri letter of 29 November 2007), herein attached)
to be covered by executive privilege, thus:
ROMULO L. NERI is hereby cited in contempt of this (sic)
It was not my intention to snub the last Senate hearing. In fact, I have
Committees and ordered arrested and detained in the Office of
cooperated with the task of the Senate in its inquiry in aid of legislation
the Senate Sergeant-At-Arms until such time that he will appear
as shown by my almost 11 hours stay during the hearing on 26
and give his testimony.
September 2007. During said hearing, I answered all the questions that
were asked of me, save for those which I thought was covered by
The Sergeant-At-Arms is hereby directed to carry out and implement
executive privilege, and which was confirmed by the Executive
this Order and make a return hereof within twenty four (24) hours from
Secretary in his Letter 15 November 2007. In good faith, after that
its enforcement.
exhaustive testimony, I thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege.
SO ORDERED.
Hence, his request that my presence be dispensed with.
On the same date, petitioner moved for the reconsideration of the
above Order.[9] He insisted that he has not shown "any contemptible
Be that as it may, should there be new matters that were not yet taken
conduct worthy of contempt and arrest." He emphasized his willingness
up during the 26 September 2007 hearing, may I be furnished in
to testify on new matters, however, respondent Committees did not
advance as to what else I need to clarify, so that as a resource person, I
respond to his request for advance notice of questions. He also
may adequately prepare myself.
mentioned the petition for certiorari he filed on December 7, 2007.
In addition, petitioner submitted a letter prepared by his counsel, Atty.
According to him, this should restrain respondent Committees from
Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-
enforcing the show cause Letter "through the issuance of declaration of
appearance was upon the order of the President; and (2) his
contempt" and arrest.
conversation with President Arroyo dealt with delicate and sensitive
national security and diplomatic matters relating to the impact of the
In view of respondent Committees' issuance of the contempt Order,
bribery scandal involving high government officials and the possible
petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari
(With Urgent Application for TRO/Preliminary Injunction), seeking to restrain 1.b.Did petitioner Neri correctly invoke executive privilege to avoid
the implementation of the said contempt Order. testifying on his conversations with the President on the NBN
contract on his assertions that the said conversations "dealt with
On February 5, 2008, the Court issued a Status Quo Ante Order (a) delicate and sensitive national security and diplomatic matters
enjoining respondent Committees from implementing their contempt relating to the impact of bribery scandal involving high
Order, (b) requiring the parties to observe the status quo prevailing prior government officials and the possible loss of confidence of
to the issuance of the assailed order, and (c) requiring respondent foreign investors and lenders in the Philippines" x x x within
Committees to file their comment. the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?

Petitioner contends that respondent Committees' show cause Letter 1.c Will the claim of executive privilege in this case violate the following
and contempt Order were issued with grave abuse of discretion provisions of the Constitution:
amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are "candid discussions meant Sec. 28, Art. II (Full public disclosure of all transactions involving
to explore options in making policy decisions." According to him, public interest)
these discussions "dwelt on the impact of the bribery scandal
involving high government officials on the country's diplomatic Sec. 7, Art. III (The right of the people to information on matters
relations and economic and military affairs and the possible loss of public concern)
of confidence of foreign investors and lenders in the Philippines."
He also emphasizes that his claim of executive privilege is upon the Sec. 1, Art. XI (Public office is a public trust)
order of the President and within the parameters laid down in Senate v.
Ermita[10] and United States v. Reynolds. [11] Lastly, he argues that he is Sec. 17, Art. VII (The President shall ensure that the laws be
precluded from disclosing communications made to him in official faithfully executed)
confidence under Section 7[12] of Republic Act No. 6713, otherwise
known as Code of Conduct and Ethical Standards for Public Officials and and the due process clause and the principle of separation of
Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court. powers?

Respondent Committees assert the contrary. They argue that (1) 2.


petitioner's testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for 3. What is the proper procedure to be
petitioner to claim executive privilege; (3) there is no abuse of their followed in invoking executive privilege?
authority to order petitioner's arrest; and (4) petitioner has not come to
court with clean hands. 4. Did the Senate Committees gravely
abuse their discretion in ordering the
In the oral argument held last March 4, 2008, the following issues were arrest of petitioner for non-compliance
ventilated: with the subpoena?

1. What communications between the After the oral argument, the parties were directed to manifest to the
President and petitioner Neri are Court within twenty-four (24) hours if they are amenable to the Court's
covered by the principle of `executive proposal of allowing petitioner to immediately resume his testimony
privilege'? before the Senate Committees to answer the other questions of the
Senators without prejudice to the decision on the merits of this pending
1.a Did Executive Secretary Ermita correctly invoke the principle of
petition. It was understood that petitioner may invoke executive
executive privilege, by order of the President, to cover (i)
privilege in the course of the Senate Committees proceedings, and if the
conversations of the President in the exercise of her executive and
respondent Committees disagree thereto, the unanswered questions will
policy decision-making and (ii) information, which might impair
be the subject of a supplemental pleading to be resolved along with the
our diplomatic as well as economic relations with the People's
three (3) questions subject of the present petition.[14] At the same time,
Republic of China?
respondent Committees were directed to submit several pertinent
documents.[15] Ermita[18]becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the
The Senate did not agree with the proposal for the reasons stated in the Congress, as embodied under Sections 21 and 22, respectively, of
Manifestation dated March 5, 2008. As to the required documents, the Article VI of the Constitution, to wit:
Senate and respondent Committees manifested that they would not be SECTION 21. The Senate or the House of Representatives or any of
able to submit the latter's "Minutes of all meetings" and the "Minute its respective committees may conduct inquiries in aid of legislation in
Book" because it has never been the "historical and traditional accordance with its duly published rules of procedure. The rights of
legislative practice to keep them."[16] They instead submitted the persons appearing in or affected by such inquiries shall be respected.
Transcript of Stenographic Notes of respondent Committees' joint
public hearings. SECTION 22. The heads of department may upon their own initiative,
with the consent of the President, or upon the request of either House,
On March 17, 2008, the Office of the Solicitor General (OSG) filed a or as the rules of each House shall provide, appear before and be heard
Motion for Leave to Intervene and to Admit Attached Memorandum, founded on by such House on any matter pertaining to their departments. Written
the following arguments: questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their
(1) The communications between petitioner and the President are
scheduled appearance. Interpellations shall not be limited to written
covered by the principle of "executive privilege."
questions, but may cover matters related thereto. When the security of
the state or the public interest so requires and the President so states in
(2) Petitioner was not summoned by respondent Senate Committees in
writing, the appearance shall be conducted in executive session.
accordance with the law-making body's power to conduct inquiries
in aid of legislation as laid down in Section 21, Article VI of the Senate cautions that while the above provisions are closely related and
Constitution and Senate v. Ermita. complementary to each other, they should not be considered as
pertaining to the same power of Congress. Section 21 relates to the

(3) Respondent Senate Committees gravely abused its discretion for power to conduct inquiries in aid of legislation, Its aim is to elicit

alleged non-compliance with the Subpoena dated November 13, information that may be used for legislation, while Section 22 pertains

2007. to the power to conduct a question hour, the objective of which is to

The Court granted the OSG's motion the next day, March 18, 2008. obtain information in pursuit of Congress' oversight function.[19] Simply
stated, while both powers allow Congress or any of its committees to

As the foregoing facts unfold, related events transpired. conduct inquiry, their objectives are different.

On March 6, 2008, President Arroyo issued Memorandum Circular No. This distinction gives birth to another distinction with regard to the use

151, revoking Executive Order No. 464 and Memorandum Circular No. of compulsory process. Unlike in Section 21, Congress cannot compel

108. She advised executive officials and employees to follow and abide the appearance of executive officials under Section 22. The Court's

by the Constitution, existing laws and jurisprudence, including, among pronouncement in Senate v. Ermita[20]is clear:

others, the case of Senate v. Ermita[17] when they are invited to legislative When Congress merely seeks to be informed on how department heads

inquiries in aid of legislation. are implementing the statutes which it has issued, its right to such
information is not as imperative as that of the President to whom, as

At the core of this controversy are the two (2) crucial queries, to wit: Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in

First, are the communications elicited by the subject three (3) questions keeping with the separation of powers, states that Congress may only

covered by executive privilege? request their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is `in aid of legislation' under

And second, did respondent Committees commit grave abuse of Section 21, the appearance is mandatory for the same reasons stated in

discretion in issuing the contempt Order? Arnault.

We grant the petition. In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in

At the outset, a glimpse at the landmark case of Senate v. pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission status by enacting the Freedom of Information Act[23] and the Federal
Advisory Committee Act,[24] the Philippines has retained its constitutional
Ultimately, the power of Congress to compel the appearance of origination, occasionally interpreted only by this Court in various cases.
executive officials under section 21 and the lack of it under Section 22 The most recent of these is the case of Senate v. Ermita where this Court
find their basis in the principle of separation of powers. While the declared unconstitutional substantial portions of E.O. 464. In this
executive branch is a co-equal branch of the legislature, it cannot regard, it is worthy to note that Executive Ermita's Letter dated
frustrate the power of Congress to legislate by refusing to comply with November 15, 2007 limits its bases for the claim of executive privilege
its demands for information. (Emphasis supplied.) to Senate v. Ermita, Almonte v. Vasquez,[25] and Chavez v. PEA.[26] There
was never a mention of E.O. 464.
The availability of the power of judicial review to resolve the issues
raised in this case has also been settled in Senate v. Ermita, when it held:
While these cases, especially Senate v. Ermita, [27] have comprehensively
As evidenced by the American experience during the so-called
discussed the concept of executive privilege, we deem it imperative to
"McCarthy era," however, the right of Congress to conduct inquiries in
explore it once more in view of the clamor for this Court to clearly
aid of legislation is, in theory, no less susceptible to abuse than
define the communications covered by executive privilege.
executive or judicial power. It may thus be subjected to judicial review
pursuant to the Court's certiorari powers under Section 1, Article VIII
The Nixon and post-Watergate cases established the broad contours of the
of the Constitution.
presidential communications privilege.[28] In United States v. Nixon,[29]
Hence, this decision.
the U.S. Court recognized a great public interest in preserving "the
I
confidentiality of conversations that take place in the President's
performance of his official duties." It thus considered presidential
The Communications Elicited by the Three (3)
communications as "presumptively privileged." Apparently, the
Questions are Covered by Executive Privilege
presumption is founded on the "President's generalized interest in
confidentiality." The privilege is said to be necessary to guarantee the
We start with the basic premises where the parties have conceded.
candor of presidential advisors and to provide "the President and
those who assist him... with freedom to explore alternatives in the
The power of Congress to conduct inquiries in aid of legislation is broad.
process of shaping policies and making decisions and to do so in
This is based on the proposition that a legislative body cannot legislate
a way many would be unwilling to express except privately."
wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change.[21]
In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled
Inevitably, adjunct thereto is the compulsory process to enforce it. But,
that there are two (2) kinds of executive privilege; one is the
the power, broad as it is, has limitations. To be valid, it is imperative
presidential communications privilege and, the other is the
that it is done in accordance with the Senate or House duly published
deliberative process privilege. The former pertains to
rules of procedure and that the rights of the persons appearing in or
"communications, documents or other materials that reflect
affected by such inquiries be respected.
presidential decision-making and deliberations and that the
President believes should remain confidential." The latter includes
The power extends even to executive officials and the only way for
`advisory opinions, recommendations and deliberations
them to be exempted is through a valid claim of executive privilege.[22]
comprising part of a process by which governmental decisions
This directs us to the consideration of the question -- is there a
and policies are formulated."
recognized claim of executive privilege despite the revocation of
E.O. 464?
Accordingly, they are characterized by marked distinctions.
Presidential communications privilege applies to decision-making
A-There is a Recognized Claim of Executive Privilege Despite the
of the President while, the deliberative process privilege, to
Revocation of E.O. 464
decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President's
At this juncture, it must be stressed that the revocation of E.O. 464
unique constitutional role; the second on common law privilege. Unlike
does not in any way diminish our concept of executive privilege. This is
the deliberative process privilege, the presidential
because this concept has Constitutional underpinnings. Unlike the
communications privilege applies to documents in their entirety,
United States which has further accorded the concept with statutory
and covers final and post-decisional materials as well as pre-
deliberative ones [31] As a consequence, congressional or judicial members. To admit, then, a right in the House of Representatives to
negation of the presidential communications privilege is always demand and to have as a matter of course all the papers respecting a
subject to greater scrutiny than denial of the deliberative process negotiation with a foreign power would be to establish a dangerous
privilege. precedent.

Majority of the above jurisprudence have found their way in our


Turning on who are the officials covered by the presidential
jurisdiction. In Chavez v. PCGG , [38]this Court held that there is a
communications privilege, In Re: Sealed Case confines the privilege
"governmental privilege against public disclosure with respect to state
only to White House Staff that has "operational proximity" to direct
secrets regarding military, diplomatic and other security matters." In
presidential decision-making. Thus, the privilege is meant to encompass
Chavez v. PEA,[39] there is also a recognition of the confidentiality of
only those functions that form the core of presidential authority,
Presidential conversations, correspondences, and discussions in closed-
involving what the court characterized as "quintessential and non-
door Cabinet meetings. In Senate v. Ermita, the concept of presidential
delegable Presidential power," such as commander-in-chief power,
communications privilege is fully discussed.
appointment and removal power, the power to grant pardons and
reprieves, the sole-authority to receive ambassadors and other public
As may be gleaned from the above discussion, the claim of executive
officers, the power to negotiate treaties, etc.[32]
privilege is highly recognized in cases where the subject of inquiry
relates to a power textually committed by the Constitution to the
The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In
President, such as the area of military and foreign relations. Under our
Re: Sealed Case principles. There, while the presidential decision involved
Constitution, the President is the repository of the commander-in-
is the exercise of the President's pardon power, a non-delegable, core-
chief,[40] appointing,[41] pardoning,[42] and diplomatic [43] powers.
presidential function, the Deputy Attorney General and the Pardon
Consistent with the doctrine of separation of powers, the information
Attorney were deemed to be too remote from the President and his
relating to these powers may enjoy greater confidentiality than others.
senior White House advisors to be protected. The Court conceded that
functionally those officials were performing a task directly related to the
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch,
President's pardon power, but concluded that an organizational test was
somehow provide the elements of presidential communications
more appropriate for confining the potentially broad sweep that would
privilege, to wit:
result from the In Re: Sealed Case's functional test. The majority
concluded that, the lesser protections of the deliberative process 1) The protected communication must relate to a "quintessential and
privilege would suffice. That privilege was, however, found insufficient non-delegable presidential power."
to justify the confidentiality of the 4,341 withheld documents.
2) The communication must be authored or "solicited and received" by
But more specific classifications of communications covered by a close advisor of the President or the President himself. The
executive privilege are made in older cases. Courts ruled early that the judicial test is that an advisor must be in "operational proximity"
Executive has a right to withhold documents that might reveal military with the President.
or state secrets[34] identity of government informers in some
circumstances[35] and information related to pending 3) The presidential communications privilege remains a qualified
investigations.[36] An area where the privilege is highly revered is in privilege that may be overcome by a showing of adequate need, such
foreign relations. In United States v. Curtiss-Wright Export Corp.[37] the that the information sought "likely contains important evidence"
U.S. Court, citing President George Washington, pronounced: and by the unavailability of the information elsewhere by an
The nature of foreign negotiations requires caution, and their success appropriate investigating authority.[44]
must often depend on secrecy, and even when brought to a conclusion, In the case at bar, Executive Secretary Ermita premised his claim of
a full disclosure of all the measures, demands, or eventual concessions executive privilege on the ground that the communications elicited by
which may have been proposed or contemplated would be extremely the three (3) questions "fall under conversation and correspondence
impolitic, for this might have a pernicious influence on future between the President and public officials" necessary in "her executive
negotiations or produce immediate inconveniences, perhaps danger and and policy decision-making process" and, that "the information sought
mischief, in relation to other powers. The necessity of such caution and to be disclosed might impair our diplomatic as well as economic
secrecy was one cogent reason for vesting the power of making treaties relations with the People's Republic of China." Simply put, the bases are
in the President, with the advice and consent of the Senate, the principle presidential communications privilege and executive privilege on
on which the body was formed confining it to a small number of matters relating to diplomacy or foreign relations.
not guard against a possible disclosure of a crime or wrongdoing. We
Using the above elements, we are convinced that, indeed, the see no dispute on this. It is settled in United States v. Nixon[48] that
communications elicited by the three (3) questions are covered by the "demonstrated, specific need for evidence in pending criminal trial"
presidential communications privilege. First, the communications outweighs the President's "generalized interest in confidentiality."
relate to a "quintessential and non-delegable power" of the President, However, the present case's distinction with the Nixon case is very
i.e. the power to enter into an executive agreement with other countries. evident. In Nixon, there is a pending criminal proceeding where the
This authority of the President to enter into executive agreements without information is requested and it is the demands of due process of law
the concurrence of the Legislature has traditionally been recognized in and the fair administration of criminal justice that the information be
Philippine jurisprudence.[45] Second, the communications are disclosed. This is the reason why the U.S. Court was quick to "limit the
"received" by a close advisor of the President. Under the "operational scope of its decision." It stressed that it is "not concerned here with
proximity" test, petitioner can be considered a close advisor, being a the balance between the President's generalized interest in
member of President Arroyo's cabinet. And third, there is no adequate confidentiality x x x and congressional demands for information."
showing of a compelling need that would justify the limitation of the Unlike in Nixon, the information here is elicited, not in a criminal
privilege and of the unavailability of the information elsewhere by an proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita
appropriate investigating authority. stressed that the validity of the claim of executive privilege depends not
only on the ground invoked but, also, on the procedural setting or the
The third element deserves a lengthy discussion. context in which the claim is made. Furthermore, in Nixon, the
President did not interpose any claim of need to protect military,
United States v. Nixon held that a claim of executive privilege is subject to diplomatic or sensitive national security secrets. In the present case,
balancing against other interest. In other words, confidentiality in Executive Secretary Ermita categorically claims executive privilege on
executive privilege is not absolutely protected by the Constitution. The the grounds of presidential communications privilege in relation to
U.S. Court held: her executive and policy decision-making process and diplomatic
[N]either the doctrine of separation of powers, nor the need for secrets.
confidentiality of high-level communications, without more, can sustain
an absolute, unqualified Presidential privilege of immunity from judicial The respondent Committees should cautiously tread into the
process under all circumstances. investigation of matters which may present a conflict of interest that
may provide a ground to inhibit the Senators participating in the inquiry
The foregoing is consistent with the earlier case of Nixon v. Sirica,
[46]where if later on an impeachment proceeding is initiated on the same subject
it was held that presidential communications privilege are
matter of the present Senate inquiry. Pertinently, in Senate Select
presumptively privileged and that the presumption can be overcome
Committee on Presidential Campaign Activities v. Nixon,[49] it was held that
only by mere showing of public need by the branch seeking access to
since an impeachment proceeding had been initiated by a House
conversations. The courts are enjoined to resolve the competing
Committee, the Senate Select Committee's immediate oversight need
interests of the political branches of the government "in the manner
for five presidential tapes should give way to the House Judiciary
that preserves the essential functions of each Branch."[47] Here, the
Committee which has the constitutional authority to inquire into
record is bereft of any categorical explanation from respondent
presidential impeachment. The Court expounded on this issue in this
Committees to show a compelling or citical need for the answers to the
wise:
three (3) questions in the enactment of a law. Instead, the questions
It is true, of course, that the Executive cannot, any more than the other
veer more towards the exercise of the legislative oversight function
branches of government, invoke a general confidentiality privilege to
under Section 22 of Article VI rather than Section 21 of the same
shield its officials and employees from investigations by the proper
Article. Senate v. Ermita ruled that the "the oversight function of
governmental institutions into possible criminal wrongdoing. The
Congress may be facilitated by compulsory process only to the
Congress learned this as to its own privileges in Gravel v. United States, as
extent that it is performed in pursuit of legislation." It is conceded
did the judicial branch, in a sense, in Clark v. United States, and the
that it is difficult to draw the line between an inquiry in aid of legislation
executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica,
and an inquiry in the exercise of oversight function of Congress. In this
the showing required to overcome the presumption favoring
regard, much will depend on the content of the questions and the
confidentiality turned, not on the nature of the presidential conduct
manner the inquiry is conducted.
that the subpoenaed material might reveal, but, instead, on the nature
and appropriateness of the function in the performance of which
Respondent Committees argue that a claim of executive privilege does
the material was sought, and the degree to which the material was
necessary to its fulfillment. Here also our task requires and our crimes. If, for example, as in Nixon v. Sirica, one of those crimes is
decision implies no judgment whatever concerning possible perjury concerning the content of certain conversations, the grand jury's
presidential involvement in culpable activity. On the contrary, we need for the most precise evidence, the exact text of oral statements
think the sufficiency of the Committee's showing must depend recorded in their original form, is undeniable. We see no comparable
solely on whether the subpoenaed evidence is demonstrably need in the legislative process, at least not in the circumstances of
critical to the responsible fulfillment of the Committee's this case. Indeed, whatever force there might once have been in the
functions. Committee's argument that the subpoenaed materials are necessary to
its legislative judgments has been substantially undermined by
In its initial briefs here, the Committee argued that it has shown exactly subsequent events. (Emphasis supplied)
this. It contended that resolution, on the basis of the subpoenaed tapes,
Respondent Committees further contend that the grant of petitioner's
of the conflicts in the testimony before it `would aid in a determination
claim of executive privilege violates the constitutional provisions on the
whether legislative involvement in political campaigns is necessary' and
right of the people to information on matters of public concern.[50] We
`could help engender the public support needed for basic reforms in
might have agreed with such contention if petitioner did not appear
our electoral system.' Moreover, Congress has, according to the
before them at all. But petitioner made himself available to them during
Committee, power to oversee the operations of the executive branch, to
the September 26 hearing, where he was questioned for eleven (11)
investigate instances of possible corruption and malfeasance in office,
hours. Not only that, he expressly manifested his willingness to answer
and to expose the results of its investigations to public view. The
more questions from the Senators, with the exception only of those
Committee says that with respect to Watergate-related matters, this
covered by his claim of executive privilege.
power has been delegated to it by the Senate, and that to exercise its
power responsibly, it must have access to the subpoenaed tapes.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
We turn first to the latter contention. In the circumstances of this case,
The right of the people to information on matters of public concern
we need neither deny that the Congress may have, quite apart from its
shall be recognized. Access to official records, and to documents, and
legislative responsibilities, a general oversight power, nor explore what
papers pertaining to official acts, transactions, or decisions, as well as to
the lawful reach of that power might be under the Committee's
government research data used as basis for policy development, shall be
constituent resolution. Since passage of that resolution, the House
afforded the citizen, subject to such limitations as may be provided
Committee on the Judiciary has begun an inquiry into presidential
by law.
impeachment. The investigative authority of the Judiciary Committee
The provision itself expressly provides the limitation, i.e. as may be
with respect to presidential conduct has an express constitutional
provided by law. Some of these laws are Section 7 of Republic Act
source. x x x We have been shown no evidence indicating that
(R.A.) No. 6713,[51] Article 229[52] of the Revised Penal Code, Section 3
Congress itself attaches any particular value to this interest. In
(k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130 of the Rules of
these circumstances, we think the need for the tapes premised
Court. These are in addition to what our body of jurisprudence classifies
solely on an asserted power to investigate and inform cannot
as confidential[55] and what our Constitution considers as belonging to
justify enforcement of the Committee's subpoena.
the larger concept of executive privilege. Clearly, there is a recognized
public interest in the confidentiality of certain information. We find the
The sufficiency of the Committee's showing of need has come to
information subject of this case belonging to such kind.
depend, therefore, entirely on whether the subpoenaed materials are
critical to the performance of its legislative functions. There is a clear
More than anything else, though, the right of Congress or any of its
difference between Congress' legislative tasks and the responsibility of a
Committees to obtain information in aid of legislation cannot be equated
grand jury, or any institution engaged in like functions. While fact-
with the people's right to public information. The former cannot claim
finding by a legislative committee is undeniably a part of its task,
that every legislative inquiry is an exercise of the people's right to
legislative judgments normally depend more on the predicted
information. The distinction between such rights is laid down in Senate
consequences of proposed legislative actions and their political
v. Ermita:
acceptability, than on precise reconstruction of past events;
There are, it bears noting, clear distinctions between the right of
Congress frequently legislates on the basis of conflicting information
Congress to information which underlies the power of inquiry and the
provided in its hearings. In contrast, the responsibility of the grand jury
right of people to information on matters of public concern. For one,
turns entirely on its ability to determine whether there is probable cause
the demand of a citizen for the production of documents pursuant to
to believe that certain named individuals did or did not commit specific
his right to information does not have the same obligatory force as a comprehensive."[58] The following statement of grounds satisfies the
subpoena duces tecum issued by Congress. Neither does the right to requirement:
information grant a citizen the power to exact testimony from The context in which executive privilege is being invoked is that the
government officials. These powers belong only to Congress, not to an information sought to be disclosed might impair our diplomatic as well
individual citizen. as economic relations with the People's Republic of China. Given the
confidential nature in which these information were conveyed to the
Thus, while Congress is composed of representatives elected by President, he cannot provide the Committee any further details of these
the people, it does not follow, except in a highly qualified sense, conversations, without disclosing the very thing the privilege is designed
that in every exercise of its power of inquiry, the people are to protect.
exercising their right to information.
At any rate, as held further in Senate v. Ermita, [59] the Congress must not
The members of respondent Committees should not invoke as require the executive to state the reasons for the claim with such
justification in their exercise of power a right properly belonging to the particularity as to compel disclosure of the information which the
people in general. This is because when they discharge their power, they privilege is meant to protect. This is a matter of respect to a coordinate
do so as public officials and members of Congress. Be that as it may, and co-equal department.
the right to information must be balanced with and should give way, in
appropriate cases, to constitutional precepts particularly those II
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided Respondent Committees Committed Grave Abuse
cases. of Discretion in Issuing the Contempt Order

B- The Claim of Executive Privilege is Properly Invoked Grave abuse of discretion means "such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other
We now proceed to the issue -- whether the claim is properly words where the power is exercised in an arbitrary or despotic manner
invoked by the President. Jurisprudence teaches that for the claim to by reason of passion or personal hostility and it must be so patent and
be properly invoked, there must be a formal claim of privilege, lodged gross as to amount to an evasion of positive duty or to a virtual refusal
by the head of the department which has control over the matter."[56] A to perform the duty enjoined or to act at all in contemplation of law."[60]
formal and proper claim of executive privilege requires a "precise and
certain reason" for preserving their confidentiality.[57] It must be reiterated that when respondent Committees issued the show
cause Letter dated November 22, 2007, petitioner replied immediately,
The Letter dated November 17, 2007 of Executive Secretary Ermita manifesting that it was not his intention to ignore the Senate hearing
satisfies the requirement. It serves as the formal claim of privilege. and that he thought the only remaining questions were the three (3)
There, he expressly states that "this Office is constrained to invoke questions he claimed to be covered by executive privilege. In addition
the settled doctrine of executive privilege as refined in Senate v. thereto, he submitted Atty. Bautista's letter, stating that his non-
Ermita, and has advised Secretary Neri accordingly." Obviously, appearance was upon the order of the President and specifying the
he is referring to the Office of the President. That is more than enough reasons why his conversations with President Arroyo are covered by
compliance. In Senate v. Ermita, a less categorical letter was even executive privilege. Both correspondences include an expression of
adjudged to be sufficient. his willingness to testify again, provided he "be furnished in
advance" copies of the questions. Without responding to his request
With regard to the existence of "precise and certain reason," we find the for advance list of questions, respondent Committees issued the Order
grounds relied upon by Executive Secretary Ermita specific enough so dated January 30, 2008, citing him in contempt of respondent
as not "to leave respondent Committees in the dark on how the Committees and ordering his arrest and detention at the Office of the
requested information could be classified as privileged." The case of Senate Sergeant-At- Arms until such time that he would appear and give
Senate v. Ermita only requires that an allegation be made "whether the his testimony. Thereupon, petitioner filed a motion for reconsideration,
information demanded involves military or diplomatic secrets, closed- informing respondent Committees that he had filed the present petition
door Cabinet meetings, etc." The particular ground must only be for certiorari.
specified. The enumeration is not even intended to be
Respondent Committees committed grave abuse of discretion in issuing
the contempt Order in view of five (5) reasons.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think,
First, there being a legitimate claim of executive privilege, the issuance with consulting the other committees. But I am of the opinion
of the contempt Order suffers from constitutional infirmity. that the Blue Ribbon Committee is the lead committee, and
therefore, it should have preference in enforcing its own
Second, respondent Committees did not comply with the requirement decisions. Meaning to say, it is not something that is subject to
laid down in Senate v. Ermita that the invitations should contain the consultation with other committees. I am not sure that is the right
"possible needed statute which prompted the need for the inquiry," interpretation. I think that once we decide here, we enforce what
along with "the usual indication of the subject of inquiry and the we decide, because otherwise, before we know it, our
questions relative to and in furtherance thereof." Compliance with this determination is watered down by delay and, you know, the so-
requirement is imperative, both under Sections 21 and 22 of Article VI called "consultation" that inevitably will have to take place if we
of the Constitution. This must be so to ensure that the rights of both follow the premise that has been explained.
persons appearing in or affected by such inquiry are respected as
mandated by said Section 21 and by virtue of the express language of So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should
Section 22. Unfortunately, despite petitioner's repeated demands, not forget it's the lead committee here, and therefore, the will of the
respondent Committees did not send him an advance list of questions. lead committee prevails over all the other, you, know reservations that
other committees might have who are only secondary or even tertiary
Third, a reading of the transcript of respondent Committees' January committees, Mr. Chairman.
30, 2008 proceeding reveals that only a minority of the members of the
Senate Blue Ribbon Committee was present during the deliberation. [61] THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much
Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation to the Minority Leader. And I agree with the wisdom of his statements.
provides that: I was merely mentioning that under Section 6 of the Rules of the
"The Committee, by a vote of majority of all its members, may punish Committee and under Section 6, "The Committee by a vote of a
for contempt any witness before it who disobeys any order of the majority of all its members may punish for contempt any witness before
Committee or refuses to be sworn or to testify or to answer proper it who disobeys any order of the Committee."
questions by the Committee or any of its members."
So the Blue Ribbon Committee is more than willing to take that
Clearly, the needed vote is a majority of all the members of the
responsibility. But we only have six members here today, I am the
Committee. Apparently, members who did not actually participate in
seventh as chair and so we have not met that number. So I am
the deliberation were made to sign the contempt Order. Thus, there is a
merely stating that, sir, that when we will prepare the documentation, if
cloud of doubt as to the validity of the contempt Order dated January
a majority of all members sign and I am following the Sabio v. Gordon
30, 2008. We quote the pertinent portion of the transcript, thus:
rule wherein I do believe, if I am not mistaken, Chairman Gordon
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x
prepared the documentation and then either in caucus or in session
x The Chair will call either a caucus or will ask the Committee on
asked the other members to sign. And once the signatures are obtained,
Rules if there is a problem. Meaning, if we do not have the
solely for the purpose that Secretary Neri or Mr. Lozada will not be able
sufficient numbers. But if we have a sufficient number, we will
to legally question our subpoena as being insufficient in accordance
just hold a caucus to be able to implement that right away
with law.
because...Again, our Rules provide that any one held in contempt
and ordered arrested, need the concurrence of a majority of all
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is
members of the said committee and we have three committees
suggesting is very well-taken. But I'd like to advert to the fact that the
conducting this.
quorum of the committee is only two as far as I remember. Any two-
member senators attending a Senate committee hearing provide that
So thank you very much to the members...
quorum, and therefore there is more than a quorum demanded by our
Rules as far as we are concerned now, and acting as Blue Ribbon
SEN. PIMENTEL. Mr. Chairman.
Committee, as Senator Enrile pointed out. In any event, the signatures
that will follow by the additional members will only tend to strengthen
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the
the determination of this Committee to put its foot forward - put down
Minority Leader and give him the floor, Senator Pimentel.
on what is happening in this country, Mr. Chairman, because it really
looks terrible if the primary Committee of the Senate, which is the Blue privilege and inform petitioner of their finding thereon, instead of
Ribbon Committee, cannot even sanction people who openly defy, you peremptorily dismissing his explanation as "unsatisfactory."
know, the summons of this Committee. I know that the Chair is going Undoubtedly, respondent Committees' actions constitute grave abuse of
through an agonizing moment here. I know that. But nonetheless, I discretion for being arbitrary and for denying petitioner due process of
think we have to uphold, you know, the institution that we are law. The same quality afflicted their conduct when they (a) disregarded
representing because the alternative will be a disaster for all of us, Mr. petitioner's motion for reconsideration alleging that he had filed the
Chairman. So having said that, I'd like to reiterate my point. present petition before this Court and (b) ignored petitioner's repeated
request for an advance list of questions, if there be any aside from the
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 three (3) questions as to which he claimed to be covered by executive
percent with the intentions of the Minority Leader. But let me very privilege.
respectfully disagree with the legal requirements. Because, yes,
we can have a hearing if we are only two but both under Section Even the courts are repeatedly advised to exercise the power of
18 of the Rules of the Senate and under Section 6 of the Rules of contempt judiciously and sparingly with utmost self-restraint with the
the Blue Ribbon Committee, there is a need for a majority of all end in view of utilizing the same for correction and preservation of the
members if it is a case of contempt and arrest. So, I am simply dignity of the court, not for retaliation or vindication.[63] Respondent
trying to avoid the court rebuking the Committee, which will instead of Committees should have exercised the same restraint, after all petitioner
strengthening will weaken us. But I do agree, Mr. Minority Leader, that is not even an ordinary witness. He holds a high position in a co-equal
we should push for this and show the executive branch that the well- branch of government.
decided - the issue has been decided upon the Sabio versus Gordon
case. And it's very clear that we are all allowed to call witnesses. And if In this regard, it is important to mention that many incidents of judicial
they refure or they disobey not only can we cite them in contempt and review could have been avoided if powers are discharged with
have them arrested. x x x [62] circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
Fourth, we find merit in the argument of the OSG that respondent
branch of the government.
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the "duly
One last word.
published rules of procedure." We quote the OSG's explanation:
The phrase `duly published rules of procedure' requires the Senate of
The Court was accused of attempting to abandon its constitutional duty
every Congress to publish its rules of procedure governing inquiries in
when it required the parties to consider a proposal that would lead to a
aid of legislation because every Senate is distinct from the one before it
possible compromise. The accusation is far from the truth. The Court
or after it. Since Senatorial elections are held every three (3) years for
did so, only to test a tool that other jurisdictions find to be effective in
one-half of the Senate's membership, the composition of the Senate
settling similar cases, to avoid a piecemeal consideration of the
also changes by the end of each term. Each Senate may thus enact a
questions for review and to avert a constitutional crisis between the
different set of rules as it may deem fit. Not having published its
executive and legislative branches of government.
Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.
In United States v. American Tel. & Tel Co., [64]the court refrained from
And fifth, respondent Committees' issuance of the contempt Order is
deciding the case because of its desire to avoid a resolution that might
arbitrary and precipitate. It must be pointed out that respondent
disturb the balance of power between the two branches and inaccurately
Committees did not first pass upon the claim of executive privilege and
reflect their true needs. Instead, it remanded the record to the District
inform petitioner of their ruling. Instead, they curtly dismissed his
Court for further proceedings during which the parties are required to
explanation as "unsatisfactory" and simultaneously issued the Order
negotiate a settlement. In the subsequent case of United States v. American
citing him in contempt and ordering his immediate arrest and detention.
Tel. &Tel Co.,[65] it was held that "much of this spirit of compromise is
reflected in the generality of language found in the Constitution." It
A fact worth highlighting is that petitioner is not an unwilling
proceeded to state:
witness. He manifested several times his readiness to testify before
Under this view, the coordinate branches do not exist in an exclusively
respondent Committees. He refused to answer the three (3) questions
adversary relationship to one another when a conflict in authority arises.
because he was ordered by the President to claim executive privilege. It
Rather each branch should take cognizance of an implicit constitutional
behooves respondent Committees to first rule on the claim of executive
mandate to seek optimal accommodation through a realistic evaluation Tinga, J., Please see separate concurring opinion.
of the needs of the conflicting branches in the particular fact situation. Chico-Nazario, J. , (with reservation to file a separate concurring opinion.
Velasco, Jr., J., Pls. see separate concurring opinion.
It thereafter concluded that: "The Separation of Powers often
Nachura, J., See Separate Concurring Opinion.
impairs efficiency, in terms of dispatch and the immediate
Brion, J., With Separate Concurring Opinion.
functioning of government. It is the long-term staying power of
government that is enhanced by the mutual accommodation
[12] Section 7. Prohibited Acts and Transactions. - In addition to acts
required by the separation of powers."
and omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
In rendering this decision, the Court emphasizes once more that the
acts and transactions of any public official and employee and are hereby
basic principles of constitutional law cannot be subordinated to the
declared to be unlawful: x x x
needs of a particular situation. As magistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes'
(c) Disclosure and/or misuse of confidential information. -
warning on the dangers inherent in cases of this nature, thus:
"some accident of immediate and overwhelming interest...appeals to the
Public officials and employees shall not use or divulge, confidential or
feelings and distorts the judgment. These immediate interests exercise a
classified information officially known to them by reason of their office
kind of hydraulic pressure which makes what previously was clear seem
and not made available to the public, either:
doubtful, and before which even well settled principles of law will
bend."[66]
(1) To further their private interests, or give undue advantage to
In this present crusade to "search for truth," we should turn to the
anyone; or
fundamental constitutional principles which underlie our tripartite
(2) To prejudice the public interest.
system of government, where the Legislature enacts the law, the
[13] SEC. 24. Disqualification by reason of privileged
Judiciary interprets it and the Executive implements it. They are
communication. - The following persons cannot testify as to matters
considered separate, co-equal, coordinate and supreme within their
learned in confidence in the following cases. (e) A public officer cannot
respective spheres but, imbued with a system of checks and balances to
be examined during his term of office or afterwards, as to
prevent unwarranted exercise of power. The Court's mandate is to
communications made to him in official confidence, when the court
preserve these constitutional principles at all times to keep the political
finds that the public interest would suffer by disclosure.
branches of government within constitutional bounds in the exercise of
their respective powers and prerogatives, even if it be in the search for
[15] (1) Minutes of all meetings of the three (3) committees held in
truth. This is the only way we can preserve the stability of our
January and February, 2008; (2) Notice for joint meeting of three (3)
democratic institutions and uphold the Rule of Law.
committees held on 30 January 2008 duly received by the members of
the committees; (3) Minute Books of the three (3) committees; (4)
WHEREFORE, the petition is hereby GRANTED. The subject
Composition of the three (3) committees; and (5) Other documents
Order dated January 30, 2008, citing petitioner Romulo L. Neri in
required of them in the course of the oral argument.
contempt of the Senate Committees and directing his arrest and
detention, is hereby nullified.
[51] Section 7. Prohibited Acts and Transactions. - In addition to acts
and omissions of public officials and employees now prescribed in the
SO ORDERED.
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
Puno, C.J., Pls. see Dissenting Opinion.
declared to be unlawful: x x x
Quisumbing, and Reyes JJ., In the result
(c) Disclosure and/or misuse of confidential information. - Public
Ynares-Santiago, J., I certify that J. C.Y. Santiago filed her Separate
officials and employees shall not use or divulge, confidential or
Opinion.
classified information officially known to them by reason of their
Carpio, J., See Dissenting & Concurring Opinion.
office and not made available to the public, either:
Austria-Martinez, and Azcuna, JJ. , I join C.J. Puno in his dissenting
opinion.
(1) To further their private interests, or give undue advantage to
Corona, J., See concurring opinion.
Carpio Morales, J., See my Dissenting Opinion.
anyone; or
(2) To prejudice the public interest.

[52] Article 229. Revelation of secrets by an officer. - Any public


officer who shall reveal any secret known to him by reason of his
official capacity, or shall wrongfully deliver papers or copies of papers
of which he may have charge and which should not be published, shall
suffer the penalties of prision correccional in its medium and maximum
periods, perpetual special disqualification and a fine not exceeding 2,000
pesos if the revelation of such secrets or the delivery of such papers
shall have caused serious damage to the public interest; otherwise, the
penalties of prision correccional in its minimum period, temporary special
disqualification and a fine not exceeding 500 pesos shall be imposed.

[53] Section 3. Corrupt practices of public officers. - In addition to


acts or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
(k) Divulging valuable information of a confidential character, acquired
by his office or by him on account of his official position to
unauthorized persons, or releasing such information in advance of its
authorized release date.

[54] Sec. 24. Disqualification by reason of privileged


communications. - The following persons cannot testify as to matters
learned in confidence in the following case: x x x
(a) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure.

[55] In Chavez v. Public Estates Authority, supra., the Supreme Court


recognized matters which the Court has long considered as confidential
such as "information on military and diplomatic secrets, information
affecting national security, and information on investigations of crimes
by law enforcement agencies before the prosecution of the accused." It
also stated that "presidential conversations, correspondences, or
discussions during close-door cabinet meetings which, like internal
deliberations of the Supreme Court or other collegiate courts, or
executive sessions of either House of Congress, are recognized as
confidential. Such information cannot be pried-open by a co-equal
branch of government.
Supreme Court of the Philippines Barrel System. Due to the complexity of the subject matter, the Court
shall heretofore discuss the system‘s conceptual underpinnings before
EN BANC detailing the particulars of the constitutional challenge.

G.R. No. 208566, November 19, 2013 The Facts

GRECO ANTONIOUS BEDA B. BELGICA, JOSE M. I. Pork Barrel: General Concept.


VILLEGAS, JR., JOSE L. GONZALEZ, REUBEN M. ABANTE,
AND QUINTIN PAREDES SAN DIEGO, PETITIONERS, VS. "Pork Barrel” is political parlance of American-English origin.[3]
HONORABLE EXECUTIVE SECRETARY PAQUITO N. Historically, its usage may be traced to the degrading ritual of rolling out
OCHOA, JR., SECRETARY OF BUDGET AND a barrel stuffed with pork to a multitude of black slaves who would cast
MANAGEMENT FLORENCIO B. ABAD, NATIONAL their famished bodies into the porcine feast to assuage their hunger with
TREASURER ROSALIA V. DE LEON, SENATE OF THE morsels coming from the generosity of their well-fed master.[4] This
PHILIPPINES, REPRESENTED BY FRANKLIN M. DRILON practice was later compared to the actions of American legislators in
IN HIS CAPACITY AS SENATE PRESIDENT, AND HOUSE trying to direct federal budgets in favor of their districts.[5] While the
OF REPRESENTATIVES, REPRESENTED BY FELICIANO advent of refrigeration has made the actual pork barrel obsolete, it
S. BELMONTE, JR. IN HIS CAPACITY AS SPEAKER OF persists in reference to political bills that "bring home the bacon” to a
THE HOUSE, RESPONDENTS. legislator‘s district and constituents.[6] In a more technical sense, "Pork
Barrel” refers to an appropriation of government spending meant
[G.R. NO. 208493] for localized projects and secured solely or primarily to bring
money to a representative's district.[7] Some scholars on the subject
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. further use it to refer to legislative control of local appropriations.[8]
ALCANTARA, PETITIONER, VS. HONORABLE FRANKLIN
M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, In the Philippines, "Pork Barrel” has been commonly referred to as
AND HONORABLE FELICIANO S. BELMONTE, JR., IN lump-sum, discretionary funds of Members of the Legislature,[9]
HIS CAPACITY AS SPEAKER OF THE HOUSE OF although, as will be later discussed, its usage would evolve in reference
REPRESENTATIVES, RESPONDENTS. to certain funds of the Executive.

[G.R. NO. 209251] II. History of Congressional Pork Barrel in the Philippines.

PEDRITO M. NEPOMUCENO, FORMER MAYOR-BOAC, A. Pre-Martial Law Era (1922-1972).


MARINDUQUE FORMER PROVINCIAL BOARD MEMBER
– PROVINCE OF MARINDUQUE, PETITIONER, VS. Act 3044,[10] or the Public Works Act of 1922, is considered[11] as the
PRESIDENT BENIGNO SIMEON C. AQUINO III* AND earliest form of "Congressional Pork Barrel” in the Philippines since the
SECRETARY FLORENCIO “BUTCH” ABAD, utilization of the funds appropriated therein were subjected to post-
DEPARTMENT OF BUDGET AND MANAGEMENT, enactment legislator approval. Particularly, in the area of fund release,
RESPONDENTS. Section 3[12] provides that the sums appropriated for certain public
works projects[13] "shall be distributed x x x subject to the approval
DECISION of a joint committee elected by the Senate and the House of
Representatives.” "[T]he committee from each House may [also]
PERLAS-BERNABE, J.: authorize one of its members to approve the distribution made by the
Secretary of Commerce and Communications.”[14] Also, in the area of
"Experience is the oracle of truth.”[1]
fund realignment, the same section provides that the said secretary,
"with the approval of said joint committee, or of the authorized
- James Madison
members thereof, may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation under this Act to
Before the Court are consolidated petitions[2] taken under Rule 65 of
any other item hereunder.”
the Rules of Court, all of which assail the constitutionality of the Pork
In 1950, it has been documented[15] that post-enactment legislator the form of the "Mindanao Development Fund” and the "Visayas
participation broadened from the areas of fund release and realignment Development Fund” which were created with lump-sum
to the area of project identification. During that year, the mechanics of appropriations of P480 Million and P240 Million, respectively, for the
the public works act was modified to the extent that the discretion of funding of development projects in the Mindanao and Visayas areas in
choosing projects was transferred from the Secretary of Commerce and 1989. It has been documented[23] that the clamor raised by the Senators
Communications to legislators. "For the first time, the law carried a list and the Luzon legislators for a similar funding, prompted the creation
of projects selected by Members of Congress, they 'being the of the "Countrywide Development Fund” (CDF) which was
representatives of the people, either on their own account or by integrated into the 1990 GAA[24] with an initial funding of P2.3 Billion
consultation with local officials or civil leaders.‘“[16] During this period, to cover "small local infrastructure and other priority community
the pork barrel process commenced with local government councils, projects.”
civil groups, and individuals appealing to Congressmen or Senators for
projects. Petitions that were accommodated formed part of a legislator‘s Under the GAAs for the years 1991 and 1992,[25] CDF funds were, with
allocation, and the amount each legislator would eventually get is the approval of the President, to be released directly to the
determined in a caucus convened by the majority. The amount was then implementing agencies but "subject to the submission of the
integrated into the administration bill prepared by the Department of required list of projects and activities.” Although the GAAs from
Public Works and Communications. Thereafter, the Senate and the 1990 to 1992 were silent as to the amounts of allocations of the
House of Representatives added their own provisions to the bill until it individual legislators, as well as their participation in the identification of
was signed into law by the President – the Public Works Act.[17] In the projects, it has been reported[26] that by 1992, Representatives were
1960‘s, however, pork barrel legislation reportedly ceased in view of the receiving P12.5 Million each in CDF funds, while Senators were
stalemate between the House of Representatives and the Senate.[18] receiving P18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or
B. Martial Law Era (1972-1986). infrastructure projects such as roads, bridges, and buildings to "soft
projects” such as textbooks, medicines, and scholarships.[27]
While the previous "Congressional Pork Barrel” was apparently
discontinued in 1972 after Martial Law was declared, an era when "one D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
man controlled the legislature,”[19] the reprieve was only temporary. By
1982, the Batasang Pambansa had already introduced a new item in the The following year, or in 1993,[28] the GAA explicitly stated that the
General Appropriations Act (GAA) called the "Support for Local release of CDF funds was to be made upon the submission of the list
Development Projects” (SLDP) under the article on "National Aid to of projects and activities identified by, among others, individual
Local Government Units”. Based on reports,[20] it was under the SLDP legislators. For the first time, the 1993 CDF Article included an
that the practice of giving lump-sum allocations to individual allocation for the Vice-President.[29] As such, Representatives were
legislators began, with each assemblyman receiving P500,000.00. allocated P12.5 Million each in CDF funds, Senators, P18 Million each,
Thereafter, assemblymen would communicate their project and the Vice- President, P20 Million.
preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the In 1994,[30] 1995,[31] and 1996,[32] the GAAs contained the same
Ministry of Local Governments, which would, in turn, issue the checks provisions on project identification and fund release as found in the
to the city or municipal treasurers in the assemblyman‘s locality. It has 1993 CDF Article. In addition, however, the Department of Budget and
been further reported that "Congressional Pork Barrel” projects under Management (DBM) was directed to submit reports to the Senate
the SLDP also began to cover not only public works projects, or so- Committee on Finance and the House Committee on
called "hard projects”, but also "soft projects”,[21] or non-public works Appropriations on the releases made from the funds.[33]
projects such as those which would fall under the categories of, among
others, education, health and livelihood.[22] Under the 1997[34] CDF Article, Members of Congress and the Vice-
President, in consultation with the implementing agency
C. Post-Martial Law Era: concerned, were directed to submit to the DBM the list of 50% of
Corazon Cojuangco Aquino Administration (1986-1992). projects to be funded from their respective CDF allocations which shall
be duly endorsed by (a) the Senate President and the Chairman of the
After the EDSA People Power Revolution in 1986 and the restoration Committee on Finance, in the case of the Senate, and (b) the Speaker of
of Philippine democracy, "Congressional Pork Barrel” was revived in the House of Representatives and the Chairman of the Committee on
Appropriations, in the case of the House of Representatives; while the 2000 GAA for the year 2001.
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 F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
be published by the DBM,[35] "shall be the basis for the release of
funds” and that "[n]o funds appropriated herein shall be disbursed The 2002[49] PDAF Article was brief and straightforward as it merely
for projects not included in the list herein required.” contained a single special provision ordering the release of the funds
directly to the implementing agency or local government unit
The following year, or in 1998,[36] the foregoing provisions regarding the concerned, without further qualifications. The following year, 2003,[50]
required lists and endorsements were reproduced, except that the the same single provision was present, with simply an expansion of
publication of the project list was no longer required as the list itself purpose and express authority to realign. Nevertheless, the provisions in
sufficed for the release of CDF Funds. the 2003 budgets of the Department of Public Works and Highways[51]
(DPWH) and the DepEd[52] required prior consultation with
The CDF was not, however, the lone form of "Congressional Pork Members of Congress on the aspects of implementation delegation
Barrel” at that time. Other forms of "Congressional Pork Barrel” were and project list submission, respectively. In 2004, the 2003 GAA was re-
reportedly fashioned and inserted into the GAA (called enacted.[53]
"Congressional Insertions” or "CIs”) in order to perpetuate the
administration‘s political agenda.[37] It has been articulated that since CIs In 2005, [54] the PDAF Article provided that the PDAF shall be used "to
"formed part and parcel of the budgets of executive departments, fund priority programs and projects under the ten point agenda of the
they were not easily identifiable and were thus harder to monitor.” national government and shall be released directly to the implementing
Nonetheless, the lawmakers themselves as well as the finance and agencies.” It also introduced the program menu concept,[55] which is
budget officials of the implementing agencies, as well as the DBM, essentially a list of general programs and implementing agencies
purportedly knew about the insertions.[38] Examples of these CIs are the from which a particular PDAF project may be subsequently
Department of Education (DepEd) School Building Fund, the chosen by the identifying authority. The 2005 GAA was re-
Congressional Initiative Allocations, the Public Works Fund, the El enacted[56] in 2006 and hence, operated on the same bases. In similar
Niño Fund, and the Poverty Alleviation Fund.[39] The allocations for the regard, the program menu concept was consistently integrated into the
School Building Fund, particularly, "shall be made upon prior 2007,[57] 2008,[58] 2009,[59] and 2010[60] GAAs.
consultation with the representative of the legislative district
concerned.”[40] Similarly, the legislators had the power to direct how, Textually, the PDAF Articles from 2002 to 2010 were silent with
where and when these appropriations were to be spent.[41] respect to the specific amounts allocated for the individual legislators, as
well as their participation in the proposal and identification of PDAF
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001). projects to be funded. In contrast to the PDAF Articles, however, the
provisions under the DepEd School Building Program and the DPWH
In 1999,[42] the CDF was removed in the GAA and replaced by three (3) budget, similar to its predecessors, explicitly required prior
separate forms of CIs, namely, the "Food Security Program Fund,”[43] consultation with the concerned Member of Congress[61] anent
the "Lingap Para Sa Mahihirap Program Fund,”[44] and the "Rural/Urban certain aspects of project implementation.
Development Infrastructure Program Fund,”[45] all of which contained a
special provision requiring “prior consultation” with the Members of Significantly, it was during this era that provisions which allowed
Congress for the release of the funds. formal participation of non-governmental organizations (NGO) in
the implementation of government projects were introduced. In the
It was in the year 2000[46] that the "Priority Development Assistance Supplemental Budget for 2006, with respect to the appropriation for
Fund” (PDAF) appeared in the GAA. The requirement of "prior school buildings, NGOs were, by law, encouraged to participate. For
consultation with the respective Representative of the District” before such purpose, the law stated that "the amount of at least P250 Million
PDAF funds were directly released to the implementing agency of the P500 Million allotted for the construction and completion of
concerned was explicitly stated in the 2000 PDAF Article. Moreover, school buildings shall be made available to NGOs including the
realignment of funds to any expense category was expressly allowed, Federation of Filipino-Chinese Chambers of Commerce and Industry,
with the sole condition that no amount shall be used to fund personal Inc. for its "Operation Barrio School” program[,] with capability and
services and other personnel benefits.[47] The succeeding PDAF proven track records in the construction of public school buildings x x
provisions remained the same in view of the re-enactment[48] of the 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 Finally, any realignment of PDAF funds, modification and revision
Government Procurement Policy Board[64] (GPPB) issued of project identification, as well as requests for release of funds,
Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution 12- were all required to be favorably endorsed by the House
2007), amending the implementing rules and regulations[65] of RA Committee on Appropriations and the Senate Committee on
9184,[66] the Government Procurement Reform Act, to include, as a Finance, as the case may be.[79]
form of negotiated procurement,[67] the procedure whereby the
Procuring Entity[68] (the implementing agency) may enter into a III. History of Presidential Pork Barrel in the Philippines.
memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically While the term "Pork Barrel” has been typically associated with lump-
contracted out to NGOs.”[69] sum, discretionary funds of Members of Congress, the present cases
and the recent controversies on the matter have, however, shown that
G. Present Administration (2010-Present). the term‘s usage has expanded to include certain funds of the President
such as the Malampaya Funds and the Presidential Social Fund.
Differing from previous PDAF Articles but similar to the CDF Articles,
the 2011[70] PDAF Article included an express statement on lump- sum On the one hand, the Malampaya Funds was created as a special fund
amounts allocated for individual legislators and the Vice-President: under Section 8[80] of Presidential Decree No. (PD) 910,[81] issued by
Representatives were given P70 Million each, broken down into P40 then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In
Million for "hard projects” and P30 Million for "soft projects”; while enacting the said law, Marcos recognized the need to set up a special
P200 Million was given to each Senator as well as the Vice-President, fund to help intensify, strengthen, and consolidate government efforts
with a P100 Million allocation each for "hard” and "soft projects.” relating to the exploration, exploitation, and development of indigenous
Likewise, a provision on realignment of funds was included, but with energy resources vital to economic growth.[82] Due to the energy-related
the qualification that it may be allowed only once. The same provision activities of the government in the Malampaya natural gas field in
also allowed the Secretaries of Education, Health, Social Welfare and Palawan, or the "Malampaya Deep Water Gas-to-Power Project”,[83] the
Development, Interior and Local Government, Environment and special fund created under PD 910 has been currently labeled as
Natural Resources, Energy, and Public Works and Highways to realign Malampaya Funds.
PDAF Funds, with the further conditions that: (a) realignment is within
the same implementing unit and same project category as the original On the other hand the Presidential Social Fund was created under
project, for infrastructure projects; (b) allotment released has not yet Section 12, Title IV[84] of PD 1869,[85] or the Charter of the Philippine
been obligated for the original scope of work, and (c) the request for Amusement and Gaming Corporation (PAGCOR). PD 1869 was
realignment is with the concurrence of the legislator concerned.[71] similarly issued by Marcos on July 11, 1983. More than two (2) years
after, he amended PD 1869 and accordingly issued PD 1993 on
In the 2012[72] and 2013[73] PDAF Articles, it is stated that the October 31, 1985,[86] amending Section 1287 of the former law. As it
"[i]dentification of projects and/or designation of beneficiaries shall stands, the Presidential Social Fund has been described as a special
conform to the priority list, standard or design prepared by each funding facility managed and administered by the Presidential
implementing agency [(priority list requirement)] x x x.” However, as Management Staff through which the President provides direct
practiced, it would still be the individual legislator who would choose assistance to priority programs and projects not funded under the
and identify the project from the said priority list.[74] regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88
Provisions on legislator allocations[75] as well as fund realignment[76]
were included in the 2012 and 2013 PDAF Articles; but the allocation IV. Controversies in the Philippines.
for the Vice-President, which was pegged at P200 Million in the 2011
GAA, had been deleted. In addition, the 2013 PDAF Article now Over the decades, "pork” funds in the Philippines have increased
allowed LGUs to be identified as implementing agencies if they tremendously,[89] owing in no small part to previous Presidents who
have the technical capability to implement the projects.[77] Legislators reportedly used the "Pork Barrel” in order to gain congressional
were also allowed to identify programs/projects, except for assistance to support.[90] It was in 1996 when the first controversy surrounding the
indigent patients and scholarships, outside of his legislative district "Pork Barrel” erupted. Former Marikina City Representative Romeo
provided that he secures the written concurrence of the legislator of the Candazo (Candazo), then an anonymous source, "blew the lid on the
intended outside-district, endorsed by the Speaker of the House.[78] huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks.”[91] He said that ?the kickbacks projects by the appropriate implementing agencies and several
were 'SOP‘ (standard operating procedure) among legislators and government-owned-and-controlled corporations (GOCCs).[101] The
ranged from a low 19 percent to a high 52 percent of the cost of each total releases covered by the audit amounted to P8.374 Billion in PDAF
project, which could be anything from dredging, rip rapping, asphalting, and P32.664 Billion in VILP, representing 58% and 32%, respectively,
concreting, and construction of school buildings.”[92] "Other sources of of the total PDAF and VILP releases that were found to have been
kickbacks that Candazo identified were public funds intended for made nationwide during the audit period.[102] Accordingly, the CoA‘s
medicines and textbooks. A few days later, the tale of the money trail findings contained in its Report No. 2012-03 (CoA Report), entitled
became the banner story of the [Philippine Daily] Inquirer issue of "Priority Development Assistance Fund (PDAF) and Various
[August] 13, 1996, accompanied by an illustration of a roasted pig.” [93] Infrastructures including Local Projects (VILP),” were made public, the
"The publication of the stories, including those about congressional highlights of which are as follows:[103]
initiative allocations of certain lawmakers, including P3.6 [B]illion for a
[C]ongressman, sparked public outrage.”[94]  Amounts released for projects identified
by a considerable number of legislators
Thereafter, or in 2004, several concerned citizens sought the significantly exceeded their respective
nullification of the PDAF as enacted in the 2004 GAA for being allocations.
unconstitutional. Unfortunately, for lack of "any pertinent evidentiary  Amounts were released for projects
support that illegal misuse of PDAF in the form of kickbacks has outside of legislative districts of
become a common exercise of unscrupulous Members of Congress,” sponsoring members of the Lower
the petition was dismissed.[95] House.
 Total VILP releases for the period
Recently, or in July of the present year, the National Bureau of exceeded the total amount appropriated
Investigation (NBI) began its probe into allegations that "the under the 2007 to 2009 GAAs.
government has been defrauded of some P10 Billion over the past 10  Infrastructure projects were constructed
years by a syndicate using funds from the pork barrel of lawmakers and on private lots without these having
various government agencies for scores of ghost projects.”[96] The been turned over to the government.
investigation was spawned by sworn affidavits of six (6) whistle-blowers  Significant amounts were released to
who declared that JLN Corporation – "JLN” standing for Janet Lim [implementing agencies] without the
Napoles (Napoles) – had swindled billions of pesos from the public latter‘s endorsement and without
coffers for "ghost projects” using no fewer than 20 dummy NGOs for considering their mandated functions,
an entire decade. While the NGOs were supposedly the ultimate administrative and technical capabilities
recipients of PDAF funds, the whistle-blowers declared that the money to implement projects.
was diverted into Napoles‘ private accounts.[97] Thus, after its  Implementation of most livelihood
investigation on the Napoles controversy, criminal complaints were projects was not undertaken by the
filed before the Office of the Ombudsman, charging five (5) lawmakers [implementing agencies] themselves but
for Plunder, and three (3) other lawmakers for Malversation, Direct by [NGOs] endorsed by the proponent
Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. legislators to which the Funds were
Also recommended to be charged in the complaints are some of the transferred. • The funds were
lawmakers‘ chiefs-of-staff or representatives, the heads and other transferred to the NGOs in spite of the
officials of three (3) implementing agencies, and the several presidents absence of any appropriation law or
of the NGOs set up by Napoles.[98] ordinance.
 Selection of the NGOs were not
On August 16, 2013, the Commission on Audit (CoA) released the compliant with law and regulations.
results of a three-year audit investigation[99] covering the use of  Eighty-Two (82) NGOs entrusted with
legislators' PDAF from 2007 to 2009, or during the last three (3) years implementation of seven hundred
of the Arroyo administration. The purpose of the audit was to seventy two (772) projects amount to
determine the propriety of releases of funds under PDAF and the [P]6.156 Billion were either found
Various Infrastructures including Local Projects (VILP)[100] by the questionable, or submitted
DBM, the application of these funds and the implementation of questionable/spurious documents, or
failed to liquidate in whole or in part being acts constituting grave abuse of discretion. Also, they pray that
their utilization of the Funds. the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
 Procurement by the NGOs, as well as Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their
some implementing agencies, of goods respective capacities as the incumbent Executive Secretary, Secretary of
and services reportedly used in the the Department of Budget and Management (DBM), and National
projects were not compliant with law. 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
As for the "Presidential Pork Barrel”, whistle-blowers alleged that "[a]t public: (a) "the complete schedule/list of legislators who have availed of
least P900 Million from royalties in the operation of the Malampaya gas their PDAF and VILP from the years 2003 to 2013, specifying the use
project off Palawan province intended for agrarian reform beneficiaries of the funds, the project or activity and the recipient entities or
has gone into a dummy [NGO].”[104] According to incumbent CoA individuals, and all pertinent data thereto”; and (b) "the use of the
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, Executive‘s [lump-sum, discretionary] funds, including the proceeds
as of this writing, in the process of preparing "one consolidated report” from the x x x Malampaya Fund[s] [and] remittances from the
on the Malampaya Funds.[105] [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
V. The Procedural Antecedents. thereto.”[108] Also, they pray for the "inclusion in budgetary
deliberations with the Congress of all presently off-budget, [lump-sum],
Spurred in large part by the findings contained in the CoA Report and discretionary funds including, but not limited to, proceeds from the
the Napoles controversy, several petitions were lodged before the Court Malampaya Fund[s] [and] remittances from the [PAGCOR].”[109] The
similarly seeking that the "Pork Barrel System” be declared Belgica Petition was docketed as G.R. No. 208566.[110]
unconstitutional. To recount, the relevant procedural antecedents in
these cases are as follows: Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
(Nepomuceno), filed a Petition dated August 23, 2012 (Nepomuceno
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), Petition), seeking that the PDAF be declared unconstitutional, and a
President of the Social Justice Society, filed a Petition for Prohibition of cease and desist order be issued restraining President Benigno Simeon
even date under Rule 65 of the Rules of Court (Alcantara Petition), S. Aquino III (President Aquino) and Secretary Abad from releasing
seeking that the "Pork Barrel System” be declared unconstitutional, and such funds to Members of Congress and, instead, allow their release to
a writ of prohibition be issued permanently restraining respondents fund priority projects identified and approved by the Local
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective Development Councils in consultation with the executive departments,
capacities as the incumbent Senate President and Speaker of the House such as the DPWH, the Department of Tourism, the Department of
of Representatives, from further taking any steps to enact legislation Health, the Department of Transportation, and Communication and the
appropriating funds for the "Pork Barrel System,” in whatever form and National Economic Development Authority.[111] The Nepomuceno
by whatever name it may be called, and from approving further releases Petition was docketed as UDK-14951.[112]
pursuant thereto.[106] The Alcantara Petition was docketed as G.R. No.
208493. On September 10, 2013, the Court issued a Resolution of even date (a)
consolidating all cases; (b) requiring public respondents to comment on
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO)
Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San Diego enjoining the DBM, National Treasurer, the Executive Secretary, or any
(Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent of the persons acting under their authority from releasing (1) the
Petition For Certiorari and Prohibition With Prayer For The Immediate remaining PDAF allocated to Members of Congress under the GAA of
Issuance of Temporary Restraining Order (TRO) and/or Writ of 2013, and (2) Malampaya Funds under the phrase "for such other
Preliminary Injunction dated August 27, 2013 under Rule 65 of the purposes as may be hereafter directed by the President” pursuant to
Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel Section 8 of PD 910 but not for the purpose of "financ[ing] energy
System,” presently embodied in the provisions of the GAA of 2013 resource development and exploitation programs and projects of the
which provided for the 2013 PDAF, and the Executive‘s lump-sum, government” under the same provision; and (d) setting the consolidated
discretionary funds, such as the Malampaya Funds and the Presidential cases for Oral Arguments on October 8, 2013.
Social Fund,[107] be declared unconstitutional and null and void for
On September 23, 2013, the Office of the Solicitor General (OSG) filed entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and
a Consolidated Comment (Comment) of even date before the Court, Management”[115] (LAMP) bar the re- litigation of the issue of
seeking the lifting, or in the alternative, the partial lifting with respect to constitutionality of the "Pork Barrel System” under the principles of res
educational and medical assistance purposes, of the Court‘s September judicata and stare decisis.
10, 2013 TRO, and that the consolidated petitions be dismissed for lack
of merit.[113]
II. Substantive Issues on the “Congressional Pork Barrel.”

On September 24, 2013, the Court issued a Resolution of even date


Whether or not the 2013 PDAF Article and all other Congressional
directing petitioners to reply to the Comment.
Pork Barrel Laws similar thereto are unconstitutional considering that
they violate the principles of/constitutional provisions on (a) separation
Petitioners, with the exception of Nepomuceno, filed their respective
of powers; (b) non-delegability of legislative power; (c) checks and
replies to the Comment: (a) on September 30, 2013, Villegas filed a
balances; (d) accountability; (e) political dynasties; and (f) local
separate Reply dated September 27, 2013 (Villegas Reply); (b) on
autonomy.
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
III. Substantive Issues on the “Presidential Pork Barrel.”
dated October 1, 2013.

Whether or not the phrases (a) "and for such other purposes as may be
On October 1, 2013, the Court issued an Advisory providing for the
hereafter directed by the President” under Section 8 of PD 910,[116]
guidelines to be observed by the parties for the Oral Arguments
relating to the Malampaya Funds, and (b) "to finance the priority
scheduled on October 8, 2013. In view of the technicality of the issues
infrastructure development projects and to finance the restoration of
material to the present cases, incumbent Solicitor General Francis H.
damaged or destroyed facilities due to calamities, as may be directed and
Jardeleza (Solicitor General) was directed to bring with him during the
authorized by the Office of the President of the Philippines” under
Oral Arguments representative/s from the DBM and Congress who
Section 12 of PD 1869, as amended by PD 1993, relating to the
would be able to competently and completely answer questions related
Presidential Social Fund, are unconstitutional insofar as they constitute
to, among others, the budgeting process and its implementation.
undue delegations of legislative power.
Further, the CoA Chairperson was appointed as amicus curiae and
thereby requested to appear before the Court during the Oral
These main issues shall be resolved in the order that they have been
Arguments.
stated. In addition, the Court shall also tackle certain ancillary issues as
prompted by the present cases.
On October 8 and 10, 2013, the Oral Arguments were conducted.
Thereafter, the Court directed the parties to submit their respective
The Court’s Ruling
memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.
The petitions are partly granted.

The Issues Before the Court


I. Procedural Issues.

Based on the pleadings, and as refined during the Oral Arguments, the
The prevailing rule in constitutional litigation is that no question
following are the main issues for the Court‘s resolution:
involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless there is compliance with
I. Procedural Issues.
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)
Whether or not (a) the issues raised in the consolidated petitions involve
the person challenging the act must have the standing to question the
an actual and justiciable controversy; (b) the issues raised in the
validity of the subject act or issuance; (c) the question of
consolidated petitions are matters of policy not subject to judicial
constitutionality must be raised at the earliest opportunity; and (d) the
review; (c) petitioners have legal standing to sue; and (d) the Court‘s
issue of constitutionality must be the very lis mota of the case.[118] Of
Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766,
these requisites, case law states that the first two are the most
and 113888, entitled "Philippine Constitution Association v. Enriquez”[114]
important[119] and, therefore, shall be discussed forthwith.
(Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987,
the 2014 budget, and not the 2013 PDAF Article which, being a
A. Existence of an Actual Case or Controversy. distinct subject matter, remains legally effective and existing. Neither
will the President‘s declaration that he had already "abolished the
By constitutional fiat, judicial power operates only when there is an PDAF” render the issues on PDAF moot precisely because the
actual case or controversy.[120] This is embodied in Section 1, Article Executive branch of government has no constitutional authority to
VIII of the 1987 Constitution which pertinently states that "[j]udicial nullify or annul its legal existence. By constitutional design, the
power includes the duty of the courts of justice to settle actual annulment or nullification of a law may be done either by Congress,
controversies involving rights which are legally demandable and through the passage of a repealing law, or by the Court, through a
enforceable x x x.” Jurisprudence provides that an actual case or declaration of unconstitutionality. Instructive on this point is the
controversy is one which "involves a conflict of legal rights, an assertion following exchange between Associate Justice Antonio T. Carpio
of opposite legal claims, susceptible of judicial resolution as (Justice Carpio) and the Solicitor General during the Oral
distinguished from a hypothetical or abstract difference or dispute.”[121] Arguments:[126]
In other words, "[t]here must be a contrariety of legal rights that can
be interpreted and enforced on the basis of existing law and Justice Carpio: [T]he President has taken an oath to faithfully
jurisprudence.”[122] Related to the requirement of an actual case or execute the law,[127] correct?
controversy is the requirement of "ripeness,” meaning that the
questions raised for constitutional scrutiny are already ripe for Solicitor General Jardeleza: Yes, Your Honor.
adjudication. "A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging Justice Carpio: And so the President cannot refuse to implement the
it. It is a prerequisite that something had then been accomplished or General Appropriations Act, correct?
performed by either branch before a court may come into the picture,
and the petitioner must allege the existence of an immediate or Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the
threatened injury to itself as a result of the challenged action.”[123] case, for example of the PDAF, the President has a duty to execute
"Withal, courts will decline to pass upon constitutional issues through the laws but in the face of the outrage over PDAF, the President was
advisory opinions, bereft as they are of authority to resolve hypothetical saying, "I am not sure that I will continue the release of the soft
or moot questions.”[124] projects,” and that started, Your Honor. Now, whether or not that …
(interrupted)
Based on these principles, the Court finds that there exists an actual and
justiciable controversy in these cases. 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
The requirement of contrariety of legal rights is clearly satisfied by the investigate, and that is Section [38] of Chapter 5 of Book 6 of the
antagonistic positions of the parties on the constitutionality of the Revised Administrative Code[128] x x x. So at most the President can
"Pork Barrel System.” Also, the questions in these consolidated cases suspend, now if the President believes that the PDAF is
are ripe for adjudication since the challenged funds and the provisions unconstitutional, can he just refuse to implement it?
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 Solicitor General Jardeleza: No, Your Honor, as we were trying to say in
1993, for the Presidential Social Fund – are currently existing and the specific case of the PDAF because of the CoA Report, because of
operational; hence, there exists an immediate or threatened injury to the reported irregularities and this Court can take judicial notice, even
petitioners as a result of the unconstitutional use of these public funds. outside, outside of the COA Report, you have the report of the whistle-
blowers, the President was just exercising precisely the duty ….
As for the PDAF, the Court must dispel the notion that the issues
related thereto had been rendered moot and academic by the reforms xxxx
undertaken by respondents. A case becomes moot when there is no
more actual controversy between the parties or no useful purpose can Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report,
be served in passing upon the merits.[125] Differing from this there are anomalies, you stop and investigate, and prosecute, he has
description, the Court observes that respondents‘ proposed line-item done that. But, does that mean that PDAF has been repealed?
budgeting scheme would not terminate the controversy nor diminish
the useful purpose for its resolution since said reform is geared towards Solicitor General Jardeleza: No, Your Honor x x x.
[T]he CoA is endowed with enough latitude to determine,
xxxx prevent, and disallow irregular, unnecessary, excessive, extravagant
or unconscionable expenditures of government funds. It is tasked to be
Justice Carpio: So that PDAF can be legally abolished only in two vigilant and conscientious in safeguarding the proper use of the
(2) cases. Congress passes a law to repeal it, or this Court declares government's, and ultimately the people's, property. The exercise of its
it unconstitutional, correct? general audit power is among the constitutional mechanisms that
gives life to the check and balance system inherent in our form of
Solictor General Jardeleza: Yes, Your Honor. government.

Justice Carpio: The President has no power to legally abolish [I]t is the general policy of the Court to sustain the decisions of
PDAF. (Emphases supplied) 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
Even on the assumption of mootness, jurisprudence, nevertheless,
laws they are entrusted to enforce. Findings of administrative
dictates that "the 'moot and academic‘ principle is not a magical formula
agencies are accorded not only respect but also finality when the
that can automatically dissuade the Court in resolving a case.” The
decision and order are not tainted with unfairness or arbitrariness that
Court will decide cases, otherwise moot, if: first, there is a grave
would amount to grave abuse of discretion. It is only when the CoA has
violation of the Constitution; second, the exceptional character of the
acted without or in excess of jurisdiction, or with grave abuse of
situation and the paramount public interest is involved; third, when the
discretion amounting to lack or excess of jurisdiction, that this Court
constitutional issue raised requires formulation of controlling principles
entertains a petition questioning its rulings. x x x. (Emphases supplied)
to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review.[129]
Thus, if only for the purpose of validating the existence of an
The applicability of the first exception is clear from the fundamental actual and justiciable controversy in these cases, the Court deems
posture of petitioners – they essentially allege grave violations of the the findings under the CoA Report to be sufficient.
Constitution with respect to, inter alia, the principles of separation of
powers, non-delegability of legislative power, checks and balances, The Court also finds the third exception to be applicable largely due to
accountability and local autonomy. the practical need for a definitive ruling on the system‘s
constitutionality. As disclosed during the Oral Arguments, the CoA
The applicability of the second exception is also apparent from the Chairperson estimates that thousands of notices of disallowances will be
nature of the interests involved – the constitutionality of the very issued by her office in connection with the findings made in the CoA
system within which significant amounts of public funds have been and Report. In this relation, Associate Justice Marvic Mario Victor F.
continue to be utilized and expended undoubtedly presents a situation Leonen (Justice Leonen) pointed out that all of these would eventually
of exceptional character as well as a matter of paramount public find their way to the courts.[132] Accordingly, there is a compelling need
interest. The present petitions, in fact, have been lodged at a time when to formulate controlling principles relative to the issues raised herein in
the system‘s flaws have never before been magnified. To the Court‘s order to guide the bench, the bar, and the public, not just for the
mind, the coalescence of the CoA Report, the accounts of numerous expeditious resolution of the anticipated disallowance cases, but more
whistle-blowers, and the government‘s own recognition that reforms are importantly, so that the government may be guided on how public
needed "to address the reported abuses of the PDAF”[130] funds should be utilized in accordance with constitutional principles.
demonstrates a prima facie pattern of abuse which only underscores
the importance of the matter. It is also by this finding that the Court Finally, the application of the fourth exception is called for by the
finds petitioners‘ claims as not merely theorized, speculative or recognition that the preparation and passage of the national budget is,
hypothetical. Of note is the weight accorded by the Court to the by constitutional imprimatur, an affair of annual occurrence.[133] The
findings made by the CoA which is the constitutionally-mandated audit relevance of the issues before the Court does not cease with the passage
arm of the government. In Delos Santos v. CoA,[131] a recent case wherein of a "PDAF- free budget for 2014.”[134] The evolution of the "Pork
the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF Barrel System,” by its multifarious iterations throughout the course of
funds, it was emphasized that: 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 controversies involving rights which are legally demandable and
previous course of action yet the Court used the "capable of repetition enforceable, and to determine whether or not there has been a grave
but evading review” exception in order "[t]o prevent similar questions abuse of discretion amounting to lack or excess of jurisdiction on the
from re-emerging.”[137] The situation similarly holds true to these cases. part of any branch or instrumentality of the Government.” In Estrada v.
Indeed, the myriad of issues underlying the manner in which certain Desierto,[142] the expanded concept of judicial power under the 1987
public funds are spent, if not resolved at this most opportune time, are Constitution and its effect on the political question doctrine was
capable of repetition and hence, must not evade judicial review. explained as follows:[143]

B. Matters of Policy: the Political Question Doctrine. To a great degree, the 1987 Constitution has narrowed the reach of
the political question doctrine when it expanded the power of judicial
The "limitation on the power of judicial review to actual cases and review of this court not only to settle actual controversies involving
controversies” carries the assurance that "the courts will not intrude rights which are legally demandable and enforceable but also to
into areas committed to the other branches of government.”[138] determine whether or not there has been a grave abuse of
Essentially, the foregoing limitation is a restatement of the political discretion amounting to lack or excess of jurisdiction on the part
question doctrine which, under the classic formulation of Baker v. of any branch or instrumentality of government. Heretofore, the
Carr,[139] applies when there is found, among others, "a textually judiciary has focused on the "thou shalt not's" of the Constitution
demonstrable constitutional commitment of the issue to a coordinate directed against the exercise of its jurisdiction. With the new provision,
political department,” "a lack of judicially discoverable and manageable however, courts are given a greater prerogative to determine what it can
standards for resolving it” or "the impossibility of deciding without an do to prevent grave abuse of discretion amounting to lack or excess of
initial policy determination of a kind clearly for non-judicial discretion.” jurisdiction on the part of any branch or instrumentality of government.
Cast against this light, respondents submit that the "[t]he political Clearly, the new provision did not just grant the Court power of
branches are in the best position not only to perform budget-related doing nothing. x x x (Emphases supplied)
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
It must also be borne in mind that "when the judiciary mediates to
solution at this stage.”[140]
allocate constitutional boundaries, it does not assert any superiority over
the other departments; does not in reality nullify or invalidate an act of
The Court must deny respondents‘ submission.
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
Suffice it to state that the issues raised before the Court do not present
Court is laudably cognizant of the reforms undertaken by its co-equal
political but legal questions which are within its province to resolve. A
branches of government. But it is by constitutional force that the Court
political question refers to "those questions which, under the
must faithfully perform its duty. Ultimately, it is the Court‘s avowed
Constitution, are to be decided by the people in their sovereign capacity,
intention that a resolution of these cases would not arrest or in any
or in regard to which full discretionary authority has been delegated to
manner impede the endeavors of the two other branches but, in fact,
the Legislature or executive branch of the Government. It is concerned
help ensure that the pillars of change are erected on firm constitutional
with issues dependent upon the wisdom, not legality, of a particular
grounds. After all, it is in the best interest of the people that each great
measure.”[141] The intrinsic constitutionality of the “Pork Barrel
branch of government, within its own sphere, contributes its share
System” is not an issue dependent upon the wisdom of the
towards achieving a holistic and genuine solution to the problems of
political branches of government but rather a legal one which the
society. For all these reasons, the Court cannot heed respondents‘ plea
Constitution itself has commanded the Court to act upon.
for judicial restraint.
Scrutinizing the contours of the system along constitutional lines is a
task that the political branches of government are incapable of
C. Locus Standi.
rendering precisely because it is an exercise of judicial power. More
importantly, the present Constitution has not only vested the Judiciary
"The gist of the question of standing is whether a party alleges such
the right to exercise judicial power but essentially makes it a duty to
personal stake in the outcome of the controversy as to assure that
proceed therewith. Section 1, Article VIII of the 1987 Constitution
concrete adverseness which sharpens the presentation of issues upon
cannot be any clearer: "The judicial power shall be vested in one
which the court depends for illumination of difficult constitutional
Supreme Court and in such lower courts as may be established by law.
questions. Unless a person is injuriously affected in any of his
[It] includes the duty of the courts of justice to settle actual
constitutional rights by the operation of statute or ordinance, he has no ruling in LAMP is essentially a dismissal based on a procedural
standing.”[145] technicality – and, thus, hardly a judgment on the merits – in that
petitioners therein failed to present any "convincing proof x x x
Petitioners have come before the Court in their respective capacities as showing that, indeed, there were direct releases of funds to the
citizen-taxpayers and accordingly, assert that they "dutifully contribute Members of Congress, who actually spend them according to their sole
to the coffers of the National Treasury.”[146] Clearly, as taxpayers, they discretion” or "pertinent evidentiary support [to demonstrate the]
possess the requisite standing to question the validity of the existing illegal misuse of PDAF in the form of kickbacks [and] has become a
"Pork Barrel System” under which the taxes they pay have been and common exercise of unscrupulous Members of Congress.” As such, the
continue to be utilized. It is undeniable that petitioners, as taxpayers, are Court upheld, in view of the presumption of constitutionality accorded
bound to suffer from the unconstitutional usage of public funds, if the to every law, the 2004 PDAF Article, and saw "no need to review or
Court so rules. Invariably, taxpayers have been allowed to sue where reverse the standing pronouncements in the said case.” Hence, for the
there is a claim that public funds are illegally disbursed or that public foregoing reasons, the res judicata principle, insofar as the Philconsa and
money is being deflected to any improper purpose, or that public funds LAMP cases are concerned, cannot apply.
are wasted through the enforcement of an invalid or unconstitutional
law,[147] as in these cases. On the other hand, the focal point of stare decisis is the doctrine
created. The principle, entrenched under Article 8[152] of the Civil
Moreover, as citizens, petitioners have equally fulfilled the standing Code, evokes the general rule that, for the sake of certainty, a
requirement given that the issues they have raised may be classified as conclusion reached in one case should be doctrinally applied to those
matters "of transcendental importance, of overreaching significance to that follow if the facts are substantially the same, even though the
society, or of paramount public interest.”[148] The CoA Chairperson‘s parties may be different. It proceeds from the first principle of justice
statement during the Oral Arguments that the present controversy that, absent any powerful countervailing considerations, like cases
involves "not [merely] a systems failure” but a "complete breakdown of ought to be decided alike. Thus, where the same questions relating
controls”[149] amplifies, in addition to the matters above-discussed, the to the same event have been put forward by the parties similarly situated
seriousness of the issues involved herein. Indeed, of greater import than as in a previous case litigated and decided by a competent court, the rule
the damage caused by the illegal expenditure of public funds is the of stare decisis is a bar to any attempt to re-litigate the same issue.[153]
mortal wound inflicted upon the fundamental law by the enforcement
of an invalid statute.[150] All told, petitioners have sufficient locus standi to Philconsa was the first case where a constitutional challenge against a
file the instant cases. Pork Barrel provision, i.e., the 1994 CDF Article, was resolved by the
Court. To properly understand its context, petitioners‘ posturing was
D. Res Judicata and Stare Decisis. that "the power given to the [M]embers of Congress to propose and
identify projects and activities to be funded by the [CDF] is an
Res judicata (which means a "matter adjudged”) and stare decisisnon quieta et encroachment by the legislature on executive power, since said power in
movere ([or simply, stare decisis] which means "follow past precedents an appropriation act is in implementation of the law” and that "the
and do not disturb what has been settled”) are general procedural law proposal and identification of the projects do not involve the making of
principles which both deal with the effects of previous but factually laws or the repeal and amendment thereof, the only function given to
similar dispositions to subsequent cases. For the cases at bar, the Court the Congress by the Constitution.”[154] In deference to the foregoing
examines the applicability of these principles in relation to its prior submissions, the Court reached the following main conclusions: one,
rulings in Philconsa and LAMP. under the Constitution, the power of appropriation, or the "power of
the purse,” belongs to Congress; two, the power of appropriation
The focal point of res judicata is the judgment. The principle states carries with it the power to specify the project or activity to be funded
that a judgment on the merits in a previous case rendered by a court under the appropriation law and it can be detailed and as broad as
of competent jurisdiction would bind a subsequent case if, between the Congress wants it to be; and, three, the proposals and identifications
first and second actions, there exists an identity of parties, of subject made by Members of Congress are merely recommendatory. At once, it
matter, and of causes of action.[151] This required identity is not, is apparent that the Philconsa resolution was a limited response to a
however, attendant hereto since Philconsa and LAMP, respectively separation of powers problem, specifically on the propriety of
involved constitutional challenges against the 1994 CDF Article and conferring post-enactment identification authority to Members of
2004 PDAF Article, whereas the cases at bar call for a broader Congress. On the contrary, the present cases call for a more holistic
constitutional scrutiny of the entire “Pork Barrel System.” Also, the examination of (a) the inter-relation between the CDF and PDAF
Articles with each other, formative as they are of the entire "Pork Barrel cases. In fine, stare decisis would not apply.
System” as well as (b) the intra-relation of post-enactment measures
contained within a particular CDF or PDAF Article, including not only II. Substantive Issues.
those related to the area of project identification but also to the areas of A. Definition of Terms.
fund release and realignment. The complexity of the issues and the
Before the Court proceeds to resolve the substantive issues of these
broader legal analyses herein warranted may be, therefore, considered as
cases, it must first define the terms "Pork Barrel System,”
a powerful countervailing reason against a wholesale application of the
"Congressional Pork Barrel,” and "Presidential Pork Barrel” as they are
stare decisis principle.
essential to the ensuing discourse.

In addition, the Court observes that the Philconsa ruling was actually
Petitioners define the term "Pork Barrel System” as the "collusion
riddled with inherent constitutional inconsistencies which similarly
between the Legislative and Executive branches of government to
countervail against a full resort to stare decisis. As may be deduced from
accumulate lump-sum public funds in their offices with unchecked
the main conclusions of the case, Philconsa‘s fundamental premise in
discretionary powers to determine its distribution as political
allowing Members of Congress to propose and identify of projects
largesse.”[156] They assert that the following elements make up the Pork
would be that the said identification authority is but an aspect of the
Barrel System: (a) lump-sum funds are allocated through the
power of appropriation which has been constitutionally lodged in
appropriations process to an individual officer; (b) the officer is given
Congress. From this premise, the contradictions may be easily seen. If
sole and broad discretion in determining how the funds will be used or
the authority to identify projects is an aspect of appropriation and the
expended; (c) the guidelines on how to spend or use the funds in the
power of appropriation is a form of legislative power thereby lodged
appropriation are either vague, overbroad or inexistent; and (d) projects
in Congress, then it follows that: (a) it is Congress which should
funded are intended to benefit a definite constituency in a particular
exercise such authority, and not its individual Members; (b) such
part of the country and to help the political careers of the disbursing
authority must be exercised within the prescribed procedure of law
official by yielding rich patronage benefits.[157] They further state that
passage and, hence, should not be exercised after the GAA has already
the Pork Barrel System is comprised of two (2) kinds of discretionary
been passed; and (c) such authority, as embodied in the GAA, has the
public funds: first, the Congressional (or Legislative) Pork Barrel,
force of law and, hence, cannot be merely recommendatory. Justice
currently known as the PDAF;[158] and, second, the Presidential (or
Vitug‘s Concurring Opinion in the same case sums up the Philconsa
Executive) Pork Barrel, specifically, the Malampaya Funds under PD
quandary in this wise: ?Neither would it be objectionable for Congress,
910 and the Presidential Social Fund under PD 1869, as amended by
by law, to appropriate funds for such specific projects as it may be
PD 1993.[159]
minded; to give that authority, however, to the individual members of
Congress in whatever guise, I am afraid, would be constitutionally
Considering petitioners‘ submission and in reference to its local concept
impermissible.” As the Court now largely benefits from hindsight and
and legal history, the Court defines the Pork Barrel System as the
current findings on the matter, among others, the CoA Report, the
collective body of rules and practices that govern the manner by
Court must partially abandon its previous ruling in Philconsa insofar as
which lump-sum, discretionary funds, primarily intended for local
it validated the post-enactment identification authority of
projects, are utilized through the respective participations of the
Members of Congress on the guise that the same was merely
Legislative and Executive branches of government, including its
recommendatory. This postulate raises serious constitutional
members. The Pork Barrel System involves two (2) kinds of lump-sum
inconsistencies which cannot be simply excused on the ground that
discretionary funds:
such mechanism is "imaginative as it is innovative.” Moreover, it must
be pointed out that the recent case of Abakada Guro Party List v.
First, there is the Congressional Pork Barrel which is herein
Purisima[155] (Abakada) has effectively overturned Philconsa‘s allowance of
defined as a kind of lump-sum, discretionary fund wherein
post-enactment legislator participation in view of the separation of
legislators, either individually or collectively organized into
powers principle. These constitutional inconsistencies and the Abakada
committees, are able to effectively control certain aspects of the
rule will be discussed in greater detail in the ensuing section of this
fund’s utilization through various post-enactment measures
Decision.
and/or practices. In particular, petitioners consider the PDAF, as it
appears under the 2013 GAA, as Congressional Pork Barrel since it is,
As for LAMP, suffice it to restate that the said case was dismissed on a
inter alia, a post-enactment measure that allows individual legislators to
procedural technicality and, hence, has not set any controlling doctrine
wield a collective power;[160] and
susceptible of current application to the substantive issues in these
a function that more properly is entrusted to another.”[172] In other
Second, there is the Presidential Pork Barrel which is herein words, there is a violation of the principle when there is impermissible
defined as a kind of lump-sum, discretionary fund which allows (a) interference with and/or (b) assumption of another department‘s
the President to determine the manner of its utilization. For functions.
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. The enforcement of the national budget, as primarily contained in the
GAA, is indisputably a function both constitutionally assigned and
With these definitions in mind, the Court shall now proceed to discuss properly entrusted to the Executive branch of government. In Guingona,
the substantive issues of these cases. Jr. v. Hon. Carague[173] (Guingona, Jr.), the Court explained that the phase
of budget execution "covers the various operational aspects of
B. Substantive Issues on the Congressional Pork Barrel. budgeting” and accordingly includes "the evaluation of work and
1. Separation of Powers. financial plans for individual activities,” the "regulation and
a. Statement of Principle. release of funds” as well as all "other related activities” that
comprise the budget execution cycle.[174] This is rooted in the principle
The principle of separation of powers refers to the constitutional
that the allocation of power in the three principal branches of
demarcation of the three fundamental powers of government. In the
government is a grant of all powers inherent in them.[175] Thus, unless
celebrated words of Justice Laurel in Angara v. Electoral Commission, [162] it
the Constitution provides otherwise, the Executive department should
means that the "Constitution has blocked out with deft strokes and in
exclusively exercise all roles and prerogatives which go into the
bold lines, allotment of power to the executive, the legislative and the
implementation of the national budget as provided under the GAA as
judicial departments of the government.”[163] To the legislative branch
well as any other appropriation law.
of government, through Congress,[164] belongs the power to make laws;
to the executive branch of government, through the President,[165]
In view of the foregoing, the Legislative branch of government, much
belongs the power to enforce laws; and to the judicial branch of
more any of its members, should not cross over the field of
government, through the Court,[166] belongs the power to interpret laws.
implementing the national budget since, as earlier stated, the same is
Because the three great powers have been, by constitutional design,
properly the domain of the Executive. Again, in Guingona, Jr., the Court
ordained in this respect, "[e]ach department of the government has
stated that "Congress enters the picture [when it] deliberates or acts on
exclusive cognizance of matters within its jurisdiction, and is supreme
the budget proposals of the President. Thereafter, Congress, "in the
within its own sphere.”[167] Thus, "the legislature has no authority to
exercise of its own judgment and wisdom, formulates an appropriation act
execute or construe the law, the executive has no authority to make or
precisely following the process established by the Constitution, which
construe the law, and the judiciary has no power to make or execute the
specifies that no money may be paid from the Treasury except in
law.”[168] The principle of separation of powers and its concepts of
accordance with an appropriation made by law.” Upon approval and
autonomy and independence stem from the notion that the powers of
passage of the GAA, Congress‘ law-making role necessarily comes to an
government must be divided to avoid concentration of these powers in
end and from there the Executive‘s role of implementing the national
any one branch; the division, it is hoped, would avoid any single branch
budget begins. So as not to blur the constitutional boundaries between
from lording its power over the other branches or the citizenry.[169] To
them, Congress must "not concern itself with details for
achieve this purpose, the divided power must be wielded by co-equal
implementation by the Executive.”[176]
branches of government that are equally capable of independent action
in exercising their respective mandates. Lack of independence would
The foregoing cardinal postulates were definitively enunciated in
result in the inability of one branch of government to check the
Abakada where the Court held that "[f]rom the moment the law
arbitrary or self- interest assertions of another or others.[170]
becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or
Broadly speaking, there is a violation of the separation of powers
enforcement of the law violates the principle of separation of
principle when one branch of government unduly encroaches on the
powers and is thus unconstitutional.”[177] It must be clarified,
domain of another. US Supreme Court decisions instruct that the
however, that since the restriction only pertains to "any role in the
principle of separation of powers may be violated in two (2) ways:
implementation or enforcement of the law,” Congress may still exercise
firstly, "[o]ne branch may interfere impermissibly with the other’s
its oversight function which is a mechanism of checks and balances that
performance of its constitutionally assigned function”;[171] and
the Constitution itself allows. But it must be made clear that Congress‘
"[a]lternatively, the doctrine may be violated when one branch assumes
role must be confined to mere oversight. Any post- enactment-measure
allowing legislator participation beyond oversight is bereft of any forms of Congressional Pork Barrel would be the authority of legislators
constitutional basis and hence, tantamount to impermissible to participate in the post-enactment phases of project implementation.
interference and/or assumption of executive functions. As the Court
ruled in Abakada:[178] At its core, legislators – may it be through project lists,[185] prior
consultations[186] or program menus[187] – have been consistently
[A]ny post-enactment congressional measure x x x should be accorded post-enactment authority to identify the projects they desire
limited to scrutiny and investigation. In particular, congressional to be funded through various Congressional Pork Barrel allocations.
oversight must be confined to the following: Under the 2013 PDAF Article, the statutory authority of legislators to
(1) scrutiny based primarily on Congress‘ power of appropriation and identify projects post- GAA may be construed from the import of
the budget hearings conducted in connection with it, its power to ask Special Provisions 1 to 3 as well as the second paragraph of Special
heads of departments to appear before and be heard by either of its Provision 4. To elucidate, Special Provision 1 embodies the program
Houses on any matter pertaining to their departments and its power of menu feature which, as evinced from past PDAF Articles, allows
confirmation; and individual legislators to identify PDAF projects for as long as the
identified project falls under a general program listed in the said menu.
(2) investigation and monitoring of the implementation of laws Relatedly, Special Provision 2 provides that the implementing agencies
pursuant to the power of Congress to conduct inquiries in aid of shall, within 90 days from the GAA is passed, submit to Congress a
legislation. more detailed priority list, standard or design prepared and submitted by
implementing agencies from which the legislator may make his choice.
Any action or step beyond that will undermine the separation of
The same provision further authorizes legislators to identify PDAF
powers guaranteed by the Constitution. (Emphases supplied)
projects outside his district for as long as the representative of the
b. Application.
district concerned concurs in writing. Meanwhile, Special Provision 3
In these cases, petitioners submit that the Congressional Pork Barrel –
clarifies that PDAF projects refer to "projects to be identified by
among others, the 2013 PDAF Article – "wrecks the assignment of
legislators”[188] and thereunder provides the allocation limit for the total
responsibilities between the political branches” as it is designed to allow
amount of projects identified by each legislator. Finally, paragraph 2 of
individual legislators to interfere "way past the time it should have
Special Provision 4 requires that any modification and revision of the
ceased” or, particularly, "after the GAA is passed.”[179] They state that
project identification "shall be submitted to the House Committee on
the findings and recommendations in the CoA Report provide ?an
Appropriations and the Senate Committee on Finance for favorable
illustration of how absolute and definitive the power of legislators wield
endorsement to the DBM or the implementing agency, as the case may
over project implementation in complete violation of the constitutional
be.” From the foregoing special provisions, it cannot be seriously
[principle of separation of powers.]”[180] Further, they point out that the
doubted that legislators have been accorded post-enactment authority to
Court in the Philconsa case only allowed the CDF to exist on the
identify PDAF projects.
condition that individual legislators limited their role to recommending
projects and not if they actually dictate their implementation.[181]
Aside from the area of project identification, legislators have also been
accorded post-enactment authority in the areas of fund release and
For their part, respondents counter that the separations of powers
realignment. Under the 2013 PDAF Article, the statutory authority of
principle has not been violated since the President maintains "ultimate
legislators to participate in the area of fund release through
authority to control the execution of the GAA” and that he "retains the
congressional committees is contained in Special Provision 5 which
final discretion to reject” the legislators‘ proposals.[182] They maintain
explicitly states that "[a]ll request for release of funds shall be supported
that the Court, in Philconsa, "upheld the constitutionality of the power of
by the documents prescribed under Special Provision No. 1 and
members of Congress to propose and identify projects so long as such
favorably endorsed by House Committee on Appropriations and the
proposal and identification are recommendatory.”[183] As such, they
Senate Committee on Finance, as the case may be”; while their statutory
claim that "[e]verything in the Special Provisions [of the 2013 PDAF
authority to participate in the area of fund realignment is contained in:
Article] follows the Philconsa framework, and hence, remains
first, paragraph 2, Special Provision 4[189] which explicitly states, among
constitutional.”[184]
others, that "[a]ny realignment [of funds] shall be submitted to the
House Committee on Appropriations and the Senate Committee on
The Court rules in favor of petitioners.
Finance for favorable endorsement to the DBM or the implementing
agency, as the case may be”; and, second, paragraph 1, also of Special
As may be observed from its legal history, the defining feature of all
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 Justice Bernabe: So meaning you should have the identification of
Trade and Industry[190] x x x to approve realignment from one the project by the individual legislator?
project/scope to another within the allotment received from this Fund,
subject to [among others] (iii) the request is with the concurrence of the Solicitor General Jardeleza: Yes, Your Honor.
legislator concerned.”
xxxx
Clearly, these post-enactment measures which govern the areas of
project identification, fund release and fund realignment are not related Justice Bernabe: In short, the act of identification is mandatory?
to functions of congressional oversight and, hence, allow legislators to
intervene and/or assume duties that properly belong to the sphere of Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is
budget execution. Indeed, by virtue of the foregoing, legislators have not done and then there is no identification.
been, in one form or another, authorized to participate in – as Guingona,
Jr. puts it – "the various operational aspects of budgeting,” xxxx
including "the evaluation of work and financial plans for
individual activities” and the "regulation and release of funds” in Justice Bernabe: Now, would you know of specific instances when a
violation of the separation of powers principle. The fundamental rule, project was implemented without the identification by the individual
as categorically articulated in Abakada, cannot be overstated – from the legislator?
moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the Solicitor General Jardeleza: I do not know, Your Honor; I do not think
implementation or enforcement of the law violates the principle of so but I have no specific examples. I would doubt very much, Your
separation of powers and is thus unconstitutional.[191] That the said Honor, because to implement, there is a need [for] a SARO and the
authority is treated as merely recommendatory in nature does not alter NCA. And the SARO and the NCA are triggered by an
its unconstitutional tenor since the prohibition, to repeat, covers any identification from the legislator.
role in the implementation or enforcement of the law. Towards this
end, the Court must therefore abandon its ruling in Philconsa which xxxx
sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents‘ reliance on Solictor General Jardeleza: What we mean by mandatory, Your Honor,
the same falters altogether. 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
Besides, it must be pointed out that respondents have nonetheless failed must identify, in that sense, Your Honor. Otherwise, if he does not
to substantiate their position that the identification authority of identify, he cannot avail of the PDAF Funds and his district would not
legislators is only of recommendatory import. Quite the contrary, be able to have PDAF Funds, only in that sense, Your Honor.
respondents – through the statements of the Solicitor General during (Emphases supplied)
the Oral Arguments – have admitted that the identification of the
legislator constitutes a mandatory requirement before his PDAF can be
Thus, for all the foregoing reasons, the Court hereby declares the 2013
tapped as a funding source, thereby highlighting the indispensability of
PDAF Article as well as all other provisions of law which similarly allow
the said act to the entire budget execution process:[192]
legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to
Justice Bernabe: Now, without the individual legislator’s
congressional oversight, as violative of the separation of powers
identification of the project, can the PDAF of the legislator be
principle and thus unconstitutional. Corollary thereto, informal
utilized?
practices, through which legislators have effectively intruded into the
proper phases of budget execution, must be deemed as acts of grave
Solicitor General Jardeleza: No, Your Honor.
abuse of discretion amounting to lack or excess of jurisdiction and,
hence, accorded the same unconstitutional treatment. That such
Justice Bernabe: It cannot?
informal practices do exist and have, in fact, been constantly observed
throughout the years has not been substantially disputed here. As
Solicitor General Jardeleza: It cannot… (interrupted)
pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice restriction to delegate rule-making authority to implementing
Sereno) during the Oral Arguments of these cases:[193] agencies for the limited purpose of either filling up the details of the
law for its enforcement (supplementary rule-making) or ascertaining
Chief Justice Sereno: facts to bring the law into actual operation (contingent rule-
making).[199] The conceptual treatment and limitations of delegated
Now, from the responses of the representative of both, the DBM and rule-making were explained in the case of People v. Maceren[200] as follows:
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 The grant of the rule-making power to administrative agencies is a
neither the Executive nor Congress frontally faced the question of relaxation of the principle of separation of powers and is an
constitutional compatibility of how they were engineering the budget exception to the nondelegation of legislative powers.
process. In fact, the words you have been using, as the three lawyers [of Administrative regulations or "subordinate legislation” calculated to
the DBM, and both Houses of Congress] has also been using is promote the public interest are necessary because of "the growing
surprise; surprised that all of these things are now surfacing. In fact, I complexity of modern life, the multiplication of the subjects of
thought that what the 2013 PDAF provisions did was to codify in governmental regulations, and the increased difficulty of administering
one section all the past practice that [had] been done since 1991. the law.”
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) xxxx

[Nevertheless, it must be emphasized that] [t]he rule-making


Ultimately, legislators cannot exercise powers which they do not have,
power must be confined to details for regulating the mode or
whether through formal measures written into the law or informal
proceeding to carry into effect the law as it has been enacted. The
practices institutionalized in government agencies, else the Executive
power cannot be extended to amending or expanding the statutory
department be deprived of what the Constitution has vested as its own.
requirements or to embrace matters not covered by the statute. Rules
2. Non-delegability of Legislative Power.
that subvert the statute cannot be sanctioned. (Emphases supplied)
a. Statement of Principle.
b. Application.
As an adjunct to the separation of powers principle,[194] legislative
power shall be exclusively exercised by the body to which the In the cases at bar, the Court observes that the 2013 PDAF Article,
Constitution has conferred the same. In particular, Section 1, Article VI insofar as it confers post-enactment identification authority to
of the 1987 Constitution states that such power shall be vested in the individual legislators, violates the principle of non-delegability since said
Congress of the Philippines which shall consist of a Senate and a House legislators are effectively allowed to individually exercise the power of
of Representatives, except to the extent reserved to the people by the appropriation, which – as settled in Philconsa – is lodged in
provision on initiative and referendum.[195] Based on this provision, it is Congress.[201] That the power to appropriate must be exercised only
clear that only Congress, acting as a bicameral body, and the people, through legislation is clear from Section 29(1), Article VI of the 1987
through the process of initiative and referendum, may constitutionally Constitution which states that: "No money shall be paid out of the
wield legislative power and no other. This premise embodies the Treasury except in pursuance of an appropriation made by law.” To
principle of non-delegability of legislative power, and the only understand what constitutes an act of appropriation, the Court, in
recognized exceptions thereto would be: (a) delegated legislative power Bengzon v. Secretary of Justice and Insular Auditor[202] (Bengzon), held that the
to local governments which, by immemorial practice, are allowed to power of appropriation involves (a) the setting apart by law of a
legislate on purely local matters;[196] and (b) constitutionally-grafted certain sum from the public revenue for (b) a specified purpose.
exceptions such as the authority of the President to, by law, exercise Essentially, under the 2013 PDAF Article, individual legislators are
powers necessary and proper to carry out a declared national policy in given a personal lump-sum fund from which they are able to dictate (a)
times of war or other national emergency,[197] or fix within specified how much from such fund would go to (b) a specific project or
limits, and subject to such limitations and restrictions as Congress may beneficiary that they themselves also determine. As these two (2) acts
impose, tariff rates, import and export quotas, tonnage and wharfage comprise the exercise of the power of appropriation as described in
dues, and other duties or imposts within the framework of the national Bengzon, and given that the 2013 PDAF Article authorizes individual
development program of the Government.[198] legislators to perform the same, undoubtedly, said legislators have been
conferred the power to legislate which the Constitution does not,
Notably, the principle of non-delegability should not be confused as a however, allow. Thus, keeping with the principle of non-delegability of
legislative power, the Court hereby declares the 2013 PDAF Article, as power to the executive department. The Legislature has the
well as all other forms of Congressional Pork Barrel which contain the affirmative power to enact laws; the Chief Executive has the negative
similar legislative identification feature as herein discussed, as power by the constitutional exercise of which he may defeat the
unconstitutional. will of the Legislature. It follows that the Chief Executive must find
3. Checks and Balances. his authority in the Constitution. But in exercising that authority he may
a. Statement of Principle; Item-Veto Power. not be confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge every
The fact that the three great powers of government are intended to be
intendment in favor of the constitutionality of a veto [in the same
kept separate and distinct does not mean that they are absolutely
manner] as they will presume the constitutionality of an act as originally
unrestrained and independent of each other. The Constitution has also
passed by the Legislature. (Emphases supplied)
provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government.[203] 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
A prime example of a constitutional check and balance would be the fiscal restrictions on the legislature, as well as to fortify the executive
President’s power to veto an item written into an appropriation, branch‘s role in the budgetary process.[208] In Immigration and
revenue or tariff bill submitted to him by Congress for approval Naturalization Service v. Chadha, the US Supreme Court characterized the
through a process known as "bill presentment.” The President‘s item- President‘s item-power as "a salutary check upon the legislative body,
veto power is found in Section 27(2), Article VI of the 1987 calculated to guard the community against the effects of factions,
Constitution which reads as follows: precipitancy, or of any impulse unfriendly to the public good, which
may happen to influence a majority of that body”; phrased differently, it
Sec. 27. x x x. is meant to "increase the chances in favor of the community against
the passing of bad laws, through haste, inadvertence, or design.”[209]
xxxx
For the President to exercise his item-veto power, it necessarily
(2) The President shall have the power to veto any particular item or follows that there exists a proper “item” which may be the object
items in an appropriation, revenue, or tariff bill, but the veto shall not of the veto. An item, as defined in the field of appropriations, pertains
affect the item or items to which he does not object. 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
The presentment of appropriation, revenue or tariff bills to the
appropriation as follows:
President, wherein he may exercise his power of item-veto, forms part
of the "single, finely wrought and exhaustively considered,
An item of an appropriation bill obviously means an item which, in
procedures” for law-passage as specified under the Constitution.[204] As
itself, is a specific appropriation of money, not some general
stated in Abakada, the final step in the law-making process is the
provision of law which happens to be put into an appropriation bill.
"submission [of the bill] to the President for approval. Once approved,
(Emphases supplied)
it takes effect as law after the required publication.”[205] Elaborating on
the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:[206] On this premise, it may be concluded that an appropriation bill, to
ensure that the President may be able to exercise his power of
The former Organic Act and the present Constitution of the Philippines item veto, must contain "specific appropriations of money” and not
make the Chief Executive an integral part of the law-making power. only "general provisions” which provide for parameters of
His disapproval of a bill, commonly known as a veto, is essentially appropriation.
a legislative act. The questions presented to the mind of the Chief
Executive are precisely the same as those the legislature must determine Further, it is significant to point out that an item of appropriation must
in passing a bill, except that his will be a broader point of view. be an item characterized by singular correspondence – meaning an
allocation of a specified singular amount for a specified singular
The Constitution is a limitation upon the power of the legislative purpose, otherwise known as a "line-item.”[211] This treatment not
department of the government, but in this respect it is a grant of only allows the item to be consistent with its definition as a "specific
appropriation of money” but also ensures that the President may b. Application.
discernibly veto the same. Based on the foregoing formulation, the
In these cases, petitioners claim that "[i]n the current x x x system where
existing Calamity Fund, Contingent Fund and the Intelligence Fund,
the PDAF is a lump-sum appropriation, the legislator‘s identification of
being appropriations which state a specified amount for a specific
the projects after the passage of the GAA denies the President the
purpose, would then be considered as "line-item” appropriations which
chance to veto that item later on.”[212] Accordingly, they submit that the
are rightfully subject to item veto. Likewise, it must be observed that an
"item veto power of the President mandates that appropriations bills
appropriation may be validly apportioned into component
adopt line-item budgeting” and that "Congress cannot choose a mode
percentages or values; however, it is crucial that each percentage or
of budgeting [which] effectively renders the constitutionally-given
value must be allocated for its own corresponding purpose for
power of the President useless.”[213]
such component to be considered as a proper line-item. Moreover, as
Justice Carpio correctly pointed out, a valid appropriation may even
On the other hand, respondents maintain that the text of the
have several related purposes that are by accounting and budgeting
Constitution envisions a process which is intended to meet the demands
practice considered as one purpose, e.g., MOOE (maintenance and
of a modernizing economy and, as such, lump-sum appropriations are
other operating expenses), in which case the related purposes shall be
essential to financially address situations which are barely foreseen when
deemed sufficiently specific for the exercise of the President‘s item veto
a GAA is enacted. They argue that the decision of the Congress to
power. Finally, special purpose funds and discretionary funds would
create some lump- sum appropriations is constitutionally allowed and
equally square with the constitutional mechanism of item-veto for as
textually-grounded.[214]
long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section
The Court agrees with petitioners.
25(4), Article VI of the 1987 Constitution requires that the "'special
appropriations bill shall specify the purpose for which it is intended,
Under the 2013 PDAF Article, the amount of P24.79 Billion only
and shall be supported by funds actually available as certified by
appears as a collective allocation limit since the said amount would be
the National Treasurer, or to be raised by a corresponding
further divided among individual legislators who would then receive
revenue proposal therein.” Meanwhile, with respect to discretionary
personal lump-sum allocations and could, after the GAA is passed,
funds, Section 25(6), Article VI of the 1987 Constitution requires that
effectively appropriate PDAF funds based on their own discretion. As
said funds "shall be disbursed only for public purposes to be supported
these intermediate appropriations are made by legislators only after the
by appropriate vouchers and subject to such guidelines as may be
GAA is passed and hence, outside of the law, it necessarily means that
prescribed by law.”
the actual items of PDAF appropriation would not have been written
into the General Appropriations Bill and thus effectuated without veto
In contrast, what beckons constitutional infirmity are appropriations
consideration. This kind of lump-sum/post-enactment legislative
which merely provide for a singular lump-sum amount to be tapped
identification budgeting system fosters the creation of a "budget
as a source of funding for multiple purposes. Since such appropriation
within a budget” which subverts the prescribed procedure of
type necessitates the further determination of both the actual amount
presentment and consequently impairs the President‘s power of item
to be expended and the actual purpose of the appropriation which
veto. As petitioners aptly point out, the above- described system forces
must still be chosen from the multiple purposes stated in the law, it
the President to decide between (a) accepting the entire P24.79 Billion
cannot be said that the appropriation law already indicates a "specific
PDAF allocation without knowing the specific projects of the
appropriation of money” and hence, without a proper line-item which
legislators, which may or may not be consistent with his national agenda
the President may veto. As a practical result, the President would then
and (b) rejecting the whole PDAF to the detriment of all other
be faced with the predicament of either vetoing the entire appropriation
legislators with legitimate projects.[215]
if he finds some of its purposes wasteful or undesirable, or approving
the entire appropriation so as not to hinder some of its legitimate
Moreover, even without its post-enactment legislative identification
purposes. Finally, it may not be amiss to state that such arrangement
feature, the 2013 PDAF Article would remain constitutionally flawed
also raises non-delegability issues considering that the implementing
since it would then operate as a prohibited form of lump-sum
authority would still have to determine, again, both the actual amount to
appropriation as above-characterized. In particular, the lump-sum
be expended and the actual purpose of the appropriation. Since the
amount of P24.79 Billion would be treated as a mere funding source
foregoing determinations constitute the integral aspects of the power to
allotted for multiple purposes of spending, i.e., scholarships, medical
appropriate, the implementing authority would, in effect, be exercising
missions, assistance to indigents, preservation of historical materials,
legislative prerogatives in violation of the principle of non-delegability.
construction of roads, flood control, etc. This setup connotes that the congressional oversight. As mentioned in Abakada,[222] congressional
appropriation law leaves the actual amounts and purposes of the oversight may be performed either through: (a) scrutiny based
appropriation for further determination and, therefore, does not readily primarily on Congress‘ power of appropriation and the budget hearings
indicate a discernible item which may be subject to the President‘s conducted in connection with it, its power to ask heads of departments
power of item veto. 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)
In fact, on the accountability side, the same lump-sum budgeting investigation and monitoring of the implementation of laws pursuant
scheme has, as the CoA Chairperson relays, "limit[ed] state auditors to the power of Congress to conduct inquiries in aid of
from obtaining relevant data and information that would aid in more legislation.[224]
stringently auditing the utilization of said Funds.”[216] Accordingly, she
recommends the adoption of a "line by line budget or amount per The Court agrees with petitioners that certain features embedded in
proposed program, activity or project, and per implementing some forms of Congressional Pork Barrel, among others the 2013
agency.”[217] PDAF Article, has an effect on congressional oversight. The fact that
individual legislators are given post-enactment roles in the
Hence, in view of the reasons above-stated, the Court finds the 2013 implementation of the budget makes it difficult for them to become
PDAF Article, as well as all Congressional Pork Barrel Laws of similar disinterested "observers” when scrutinizing, investigating or monitoring
operation, to be unconstitutional. That such budgeting system provides the implementation of the appropriation law. To a certain extent, the
for a greater degree of flexibility to account for future contingencies conduct of oversight would be tainted as said legislators, who are vested
cannot be an excuse to defeat what the Constitution requires. Clearly, with post-enactment authority, would, in effect, be checking on
the first and essential truth of the matter is that unconstitutional means activities in which they themselves participate. Also, it must be pointed
do not justify even commendable ends.[218] out that this very same concept of post- enactment authorization runs
c. Accountability. afoul of Section 14, Article VI of the 1987 Constitution which provides
that:
Petitioners further relate that the system under which various forms of
Congressional Pork Barrel operate defies public accountability as it
Sec. 14. No Senator or Member of the House of Representatives may
renders Congress incapable of checking itself or its Members. In
personally appear as counsel before any court of justice or before the
particular, they point out that the Congressional Pork Barrel "gives each
Electoral Tribunals, or quasi-judicial and other administrative bodies.
legislator a direct, financial interest in the smooth, speedy passing of the
Neither shall he, directly or indirectly, be interested financially in any
yearly budget” which turns them "from fiscalizers” into "financially-
contract with, or in any franchise or special privilege granted by the
interested partners.”[219] They also claim that the system has an effect on
Government, or any subdivision, agency, or instrumentality thereof,
re-election as "the PDAF excels in self-perpetuation of elective
including any government-owned or controlled corporation, or its
officials.” Finally, they add that the "PDAF impairs the power of
subsidiary, during his term of office. He shall not intervene in any
impeachment” as such "funds are indeed quite useful, 'to well,
matter before any office of the Government for his pecuniary
accelerate the decisions of senators.‘“[220]
benefit or where he may be called upon to act on account of his
office. (Emphasis supplied)
The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Clearly, allowing legislators to intervene in the various phases of project
Constitution, which states that "public office is a public trust,” is an implementation – a matter before another office of government –
overarching reminder that every instrumentality of government should renders them susceptible to taking undue advantage of their own office.
exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people‘s trust. The Court, however, cannot completely agree that the same post-
The notion of a public trust connotes accountability,[221] hence, the enactment authority and/or the individual legislator‘s control of his
various mechanisms in the Constitution which are designed to exact PDAF per se would allow him to perpetuate himself in office. Indeed,
accountability from public officers. 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
Among others, an accountability mechanism with which the proper purposes is a matter which must be analyzed based on particular facts
expenditure of public funds may be checked is the power of and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close Sec. 2. The territorial and political subdivisions shall enjoy local
operational proximity between legislators and the Executive autonomy.
department, through the former‘s post-enactment participation, may
affect the process of impeachment, this matter largely borders on the Sec. 3. The Congress shall enact a local government code which shall
domain of politics and does not strictly concern the Pork Barrel provide for a more responsive and accountable local government
System‘s intrinsic constitutionality. As such, it is an improper subject of structure instituted through a system of decentralization with effective
judicial assessment. mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and
In sum, insofar as its post-enactment features dilute congressional resources, and provide for the qualifications, election, appointment and
oversight and violate Section 14, Article VI of the 1987 Constitution, removal, term, salaries, powers and functions and duties of local
thus impairing public accountability, the 2013 PDAF Article and other officials, and all other matters relating to the organization and operation
forms of Congressional Pork Barrel of similar nature are deemed as of the local units.
unconstitutional.
4. Political Dynasties.
Pursuant thereto, Congress enacted RA 7160,[227] otherwise known as
One of the petitioners submits that the Pork Barrel System enables the "Local Government Code of 1991” (LGC), wherein the policy on
politicians who are members of political dynasties to accumulate funds local autonomy had been more specifically explicated as follows:
to perpetuate themselves in power, in contravention of Section 26,
Article II of the 1987 Constitution[225] which states that: 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
Sec. 26. The State shall guarantee equal access to opportunities for enjoy genuine and meaningful local autonomy to enable them to
public service, and prohibit political dynasties as may be defined by attain their fullest development as self-reliant communities and
law. (Emphasis and underscoring supplied) 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
At the outset, suffice it to state that the foregoing provision is
of decentralization whereby local government units shall be given more
considered as not self-executing due to the qualifying phrase “as
powers, authority, responsibilities, and resources. The process of
may be defined by law.” In this respect, said provision does not, by
decentralization shall proceed from the National Government to the
and of itself, provide a judicially enforceable constitutional right but
local government units.
merely specifies a guideline for legislative or executive action.[226]
Therefore, since there appears to be no standing law which crystallizes
xxxx
the policy on political dynasties for enforcement, the Court must defer
from ruling on this issue.
(c) It is likewise the policy of the State to require all national agencies
and offices to conduct periodic consultations with appropriate
In any event, the Court finds the above-stated argument on this score to
local government units, nongovernmental and people‘s organizations,
be largely speculative since it has not been properly demonstrated how
and other concerned sectors of the community before any project or
the Pork Barrel System would be able to propagate political dynasties.
program is implemented in their respective jurisdictions.
5. Local Autonomy.
(Emphases and underscoring supplied)
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
The above-quoted provisions of the Constitution and the LGC reveal
which read as follows:
the policy of the State to empower local government units (LGUs) to
develop and ultimately, become self-sustaining and effective
ARTICLE II
contributors to the national economy. As explained by the Court in
Philippine Gamefowl Commission v. Intermediate Appellate Court:[228]
Sec. 25. The State shall ensure the autonomy of local governments.

This is as good an occasion as any to stress the commitment of the


ARTICLE X
Constitution to the policy of local autonomy which is intended to
provide the needed impetus and encouragement to the representative of a highly-urbanized metropolis gets the same amount
development of our local political subdivisions as “self-reliant of funding as a district representative of a far-flung rural province which
communities.” In the words of Jefferson, ?Municipal corporations are would be relatively "underdeveloped” compared to the former. To add,
the small republics from which the great one derives its strength.” The what rouses graver scrutiny is that even Senators and Party-List
vitalization of local governments will enable their inhabitants to fully Representatives – and in some years, even the Vice- President – who do
exploit their resources and more important, imbue them with a not represent any locality, receive funding from the Congressional Pork
deepened sense of involvement in public affairs as members of the Barrel as well. These certainly are anathema to the Congressional Pork
body politic. This objective could be blunted by undue interference Barrel‘s original intent which is "to make equal the unequal.” Ultimately,
by the national government in purely local affairs which are best the PDAF and CDF had become personal funds under the effective
resolved by the officials and inhabitants of such political units. control of each legislator and given unto them on the sole account of
The decision we reach today conforms not only to the letter of the their office.
pertinent laws but also to the spirit of the Constitution.[229] (Emphases
and underscoring supplied) 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
In the cases at bar, petitioners contend that the Congressional Pork
mandated to "assist the corresponding sanggunian in setting the direction
Barrel goes against the constitutional principles on local autonomy since
of economic and social development, and coordinating development
it allows district representatives, who are national officers, to substitute
efforts within its territorial jurisdiction.”[234] Considering that LDCs are
their judgments in utilizing public funds for local development.[230]
instrumentalities whose functions are essentially geared towards
managing local affairs,[235] their programs, policies and resolutions
The Court agrees with petitioners.
should not be overridden nor duplicated by individual legislators, who
are national officers that have no law-making authority except only
Philconsa described the 1994 CDF as an attempt "to make equal the
when acting as a body. The undermining effect on local autonomy
unequal” and that ?[i]t is also a recognition that individual members of
caused by the post-enactment authority conferred to the latter was
Congress, far more than the President and their congressional
succinctly put by petitioners in the following wise:[236]
colleagues, are likely to be knowledgeable about the needs of their
respective constituents and the priority to be given each project.” [231]
With PDAF, a Congressman can simply bypass the local development
Drawing strength from this pronouncement, previous legislators
council and initiate projects on his own, and even take sole credit for its
justified its existence by stating that ?the relatively small projects
execution. Indeed, this type of personality-driven project identification
implemented under [the Congressional Pork Barrel] complement and
has not only contributed little to the overall development of the district,
link the national development goals to the countryside and grassroots as
but has even contributed to ?further weakening infrastructure planning
well as to depressed areas which are overlooked by central agencies
and coordination efforts of the government.”
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 Thus, insofar as individual legislators are authorized to intervene in
originally established for a worthy goal, which is to enable the purely local matters and thereby subvert genuine local autonomy, the
representatives to identify projects for communities that the LGU 2013 PDAF Article as well as all other similar forms of Congressional
concerned cannot afford.[233] Pork Barrel is deemed unconstitutional.

Notwithstanding these declarations, the Court, however, finds an With this final issue on the Congressional Pork Barrel resolved, the
inherent defect in the system which actually belies the avowed intention Court now turns to the substantive issues involving the Presidential
of "making equal the unequal.” In particular, the Court observes that Pork Barrel.
the gauge of PDAF and CDF allocation/division is based solely C. Substantive Issues on the Presidential Pork Barrel.
on the fact of office, without taking into account the specific 1. Validity of Appropriation.
interests and peculiarities of the district the legislator represents.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of
In this regard, the allocation/division limits are clearly not based on
PD1869 (now, amended by PD 1993), which respectively provide for
genuine parameters of equality, wherein economic or geographic
the Malampaya Funds and the Presidential Social Fund, as invalid
indicators have been taken into consideration. As a result, a district
appropriations laws since they do not have the "primary and specific”
purpose of authorizing the release of public funds from the National language employed (In re Continuing Appropriations, 32 P. 272),
Treasury. Petitioners submit that Section 8 of PD 910 is not an whether in the past or in the present. (Emphases and underscoring
appropriation law since the "primary and specific” purpose of PD 910 is supplied)
the creation of an Energy Development Board and Section 8 thereof
only created a Special Fund incidental thereto.[237] In similar regard,
Likewise, as ruled by the US Supreme Court in State of Nevada v. La
petitioners argue that Section 12 of PD 1869 is neither a valid
Grave:[242]
appropriations law since the allocation of the Presidential Social Fund is
merely incidental to the "primary and specific” purpose of PD 1869
To constitute an appropriation there must be money placed in a fund
which is the amendment of the Franchise and Powers of PAGCOR.[238]
applicable to the designated purpose. The word appropriate means to
In view of the foregoing, petitioners suppose that such funds are being
allot, assign, set apart or apply to a particular use or purpose. An
used without any valid law allowing for their proper appropriation in
appropriation in the sense of the constitution means the setting apart a
violation of Section 29(1), Article VI of the 1987 Constitution which
portion of the public funds for a public purpose. No particular
states that: "No money shall be paid out of the Treasury except in
form of words is necessary for the purpose, if the intention to
pursuance of an appropriation made by law.”[239]
appropriate is plainly manifested. (Emphases supplied)

The Court disagrees.


Thus, based on the foregoing, the Court cannot sustain the argument
that the appropriation must be the "primary and specific” purpose of
"An appropriation made by law” under the contemplation of Section
the law in order for a valid appropriation law to exist. To reiterate, if a
29(1), Article VI of the 1987 Constitution exists when a provision of
legal provision designates a determinate or determinable amount of
law (a) sets apart a determinate or determinable[240] amount of
money and allocates the same for a particular public purpose, then the
money and (b) allocates the same for a particular public purpose.
legislative intent to appropriate becomes apparent and, hence, already
These two minimum designations of amount and purpose stem from
sufficient to satisfy the requirement of an "appropriation made by law”
the very definition of the word "appropriation,” which means "to allot,
under contemplation of the Constitution.
assign, set apart or apply to a particular use or purpose,” and hence, if
written into the law, demonstrate that the legislative intent to
Section 8 of PD 910 pertinently provides:
appropriate exists. As the Constitution "does not provide or prescribe
Section 8. Appropriations. x x x
any particular form of words or religious recitals in which an
authorization or appropriation by Congress shall be made, except that it
All fees, revenues and receipts of the Board from any and all
be 'made by law,‘“ an appropriation law may – according to Philconsa –
sources including receipts from service contracts and agreements such
be "detailed and as broad as Congress wants it to be” for as long as the
as application and processing fees, signature bonus, discovery bonus,
intent to appropriate may be gleaned from the same. As held in the case
production bonus; all money collected from concessionaires,
of Guingona, Jr.: [241]
representing unspent work obligations, fines and penalties under the
Petroleum Act of 1949; as well as the government share representing
[T]here is no provision in our Constitution that provides or
royalties, rentals, production share on service contracts and similar
prescribes any particular form of words or religious recitals in
payments on the exploration, development and exploitation of energy
which an authorization or appropriation by Congress shall be
resources, shall form part of a Special Fund to be used to finance
made, except that it be “made by law,” such as precisely the
energy resource development and exploitation programs and
authorization or appropriation under the questioned presidential
projects of the government and for such other purposes as may be
decrees. In other words, in terms of time horizons, an appropriation
hereafter directed by the President. (Emphases supplied)
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 Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
well as in specific terms. The Congressional authorization may be
embodied in annual laws, such as a general appropriations act or in Sec. 12. Special Condition of Franchise. — After deducting five (5%)
special provisions of laws of general or special application which percent as Franchise Tax, the Fifty (50%) percent share of the
appropriate public funds for specific public purposes, such as the Government in the aggregate gross earnings of the Corporation
questioned decrees. An appropriation measure is sufficient if the from this Franchise, or 60% if the aggregate gross earnings be less
legislative intention clearly and certainly appears from the than P150,000,000.00 shall be set aside and shall accrue to the General
Fund to finance the priority infrastructure development projects purposes as may be hereafter directed by the President” to refer only to
and to finance the restoration of damaged or destroyed facilities other purposes related "to energy resource development and
due to calamities, as may be directed and authorized by the Office exploitation programs and projects of the government.”[244]
of the President of the Philippines. (Emphases supplied)
The Court agrees with petitioners‘ submissions.

Analyzing the legal text vis-à-vis the above-mentioned principles, it may


While the designation of a determinate or determinable amount for a
then be concluded that (a) Section 8 of PD 910, which creates a Special
particular public purpose is sufficient for a legal appropriation to exist,
Fund comprised of "all fees, revenues, and receipts of the [Energy
the appropriation law must contain adequate legislative guidelines if
Development] Board from any and all sources” (a determinable
the same law delegates rule-making authority to the Executive[245]
amount) "to be used to finance energy resource development and
either for the purpose of (a) filling up the details of the law for its
exploitation programs and projects of the government and for such
enforcement, known as supplementary rule-making, or (b) ascertaining
other purposes as may be hereafter directed by the President” (a
facts to bring the law into actual operation, referred to as contingent
specified public purpose), and (b) Section 12 of PD 1869, as amended
rule-making.[246] There are two (2) fundamental tests to ensure that the
by PD 1993, which similarly sets aside, "[a]fter deducting five (5%)
legislative guidelines for delegated rule- making are indeed adequate.
percent as Franchise Tax, the Fifty (50%) percent share of the
The first test is called the "completeness test.” Case law states that a
Government in the aggregate gross earnings of [PAGCOR], or 60%[,] if
law is complete when it sets forth therein the policy to be executed,
the aggregate gross earnings be less than P150,000,000.00” (also a
carried out, or implemented by the delegate. On the other hand, the
determinable amount) "to finance the priority infrastructure
second test is called the "sufficient standard test.” Jurisprudence
development projects and x x x the restoration of damaged or destroyed
holds that a law lays down a sufficient standard when it provides
facilities due to calamities, as may be directed and authorized by the
adequate guidelines or limitations in the law to map out the boundaries
Office of the President of the Philippines” (also a specified public
of the delegate‘s authority and prevent the delegation from running
purpose), are legal appropriations under Section 29(1), Article VI of the
riot.[247] To be sufficient, the standard must specify the limits of the
1987 Constitution.
delegate‘s authority, announce the legislative policy, and identify the
conditions under which it is to be implemented.[248]
In this relation, it is apropos to note that the 2013 PDAF Article cannot
be properly deemed as a legal appropriation under the said
In view of the foregoing, the Court agrees with petitioners that the
constitutional provision precisely because, as earlier stated, it contains
phrase "and for such other purposes as may be hereafter directed by the
post- enactment measures which effectively create a system of
President” under Section 8 of PD 910 constitutes an undue delegation
intermediate appropriations. These intermediate appropriations are the
of legislative power insofar as it does not lay down a sufficient standard
actual appropriations meant for enforcement and since they are made
to adequately determine the limits of the President‘s authority with
by individual legislators after the GAA is passed, they occur outside the
respect to the purpose for which the Malampaya Funds may be used.
law. As such, the Court observes that the real appropriation made under
As it reads, the said phrase gives the President wide latitude to
the 2013 PDAF Article is not the P24.79 Billion allocated for the entire
use the Malampaya Funds for any other purpose he may direct
PDAF, but rather the post-enactment determinations made by the
and, in effect, allows him to unilaterally appropriate public funds
individual legislators which are, to repeat, occurrences outside of the
beyond the purview of the law. That the subject phrase may be
law. Irrefragably, the 2013 PDAF Article does not constitute an
confined only to "energy resource development and exploitation
"appropriation made by law” since it, in its truest sense, only
programs and projects of the government” under the principle of
authorizes individual legislators to appropriate in violation of the
ejusdem generis, meaning that the general word or phrase is to be
non-delegability principle as afore-discussed.
construed to include – or be restricted to – things akin to, resembling,
2. Undue Delegation.
or of the same kind or class as those specifically mentioned,[249] is belied
On a related matter, petitioners contend that Section 8 of PD 910
by three (3) reasons: first, the phrase "energy resource development and
constitutes an undue delegation of legislative power since the phrase
exploitation programs and projects of the government” states a
"and for such other purposes as may be hereafter directed by the
singular and general class and hence, cannot be treated as a statutory
President” gives the President "unbridled discretion to determine for
reference of specific things from which the general phrase "for such
what purpose the funds will be used.”[243] Respondents, on the other
other purposes” may be limited; second, the said phrase also exhausts
hand, urged the Court to apply the principle of ejusdem generis to the
the class it represents, namely energy development programs of the
same section and thus, construe the phrase "and for such other
government;[250] and, third, the Executive department has, in fact, used
the Malampaya Funds for non-energy related purposes under the standard of the delegating law. As they are severable, all other
subject phrase, thereby contradicting respondents‘ own position that it provisions of Section 12 of PD 1869, as amended by PD 1993, remains
is limited only to "energy resource development and exploitation legally effective and subsisting.
programs and projects of the government.”[251] Thus, while Section 8 of
PD 910 may have passed the completeness test since the policy of D. Ancillary Prayers.
energy development is clearly deducible from its text, the phrase "and
for such other purposes as may be hereafter directed by the President” 1. Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
under the same provision of law should nonetheless be stricken down
as unconstitutional as it lies independently unfettered by any sufficient Aside from seeking the Court to declare the Pork Barrel System
standard of the delegating law. This notwithstanding, it must be unconstitutional – as the Court did so in the context of its
underscored that the rest of Section 8, insofar as it allows for the use of pronouncements made in this Decision – petitioners equally pray that
the Malampaya Funds "to finance energy resource development and the Executive Secretary and/or the DBM be ordered to release to the
exploitation programs and projects of the government,” remains legally CoA and to the public: (a) "the complete schedule/list of legislators
effective and subsisting. Truth be told, the declared unconstitutionality who have availed of their PDAF and VILP from the years 2003 to
of the aforementioned phrase is but an assurance that the Malampaya 2013, specifying the use of the funds, the project or activity and the
Funds would be used – as it should be used – only in accordance with recipient entities or individuals, and all pertinent data thereto” (PDAF
the avowed purpose and intention of PD 910. 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
As for the Presidential Social Fund, the Court takes judicial notice of Fund[s] [and] remittances from the [PAGCOR] x x x from 2003 to
the fact that Section 12 of PD 1869 has already been amended by PD 2013, specifying the x x x project or activity and the recipient entities or
1993 which thus moots the parties‘ submissions on the same.[252] individuals, and all pertinent data thereto”[255] (Presidential Pork Use
Nevertheless, since the amendatory provision may be readily examined Report). Petitioners‘ prayer is grounded on Section 28, Article II and
under the current parameters of discussion, the Court proceeds to Section 7, Article III of the 1987 Constitution which read as follows:
resolve its constitutionality.
ARTICLE II
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates
that the Presidential Social Fund may be used "to [first,] finance the Sec. 28. Subject to reasonable conditions prescribed by law, the State
priority infrastructure development projects and [second,] to finance adopts and implements a policy of full public disclosure of all its
the restoration of damaged or destroyed facilities due to calamities, as transactions involving public interest.
may be directed and authorized by the Office of the President of the
Philippines.” The Court finds that while the second indicated purpose ARTICLE III
adequately curtails the authority of the President to spend the
Presidential Social Fund only for restoration purposes which arise from Sec. 7. The right of the people to information on matters of public
calamities, the first indicated purpose, however, gives him carte blanche concern shall be recognized. Access to official records, and to
authority to use the same fund for any infrastructure project he may so documents and papers pertaining to official acts, transactions, or
determine as a "priority”. Verily, the law does not supply a definition of decisions, as well as to government research data used as basis for
"priority infrastructure development projects” and hence, leaves the policy development, shall be afforded the citizen, subject to such
President without any guideline to construe the same. To note, the limitations as may be provided by law.
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.
The Court denies petitioners‘ submission.
This may be deduced from its lexicographic definition as follows: "[t]he
underlying framework of a system, [especially] public services and
Case law instructs that the proper remedy to invoke the right to
facilities (such as highways, schools, bridges, sewers, and water-systems)
information is to file a petition for mandamus. As explained in the case
needed to support commerce as well as economic and residential
of Legaspi v. Civil Service Commission:[256]
development.”[253] In fine, the phrase "to finance the priority
infrastructure development projects” must be stricken down as
[W]hile the manner of examining public records may be subject to
unconstitutional since – similar to the above- assailed provision under
reasonable regulation by the government agency in custody thereof, the
Section 8 of PD 910 – it lies independently unfettered by any sufficient
duty to disclose the information of public concern, and to afford access requested PDAF Use Schedule/List and Presidential Pork Use Report.
to public records cannot be discretionary on the part of said agencies. Neither did petitioners assert any law or administrative issuance which
Certainly, its performance cannot be made contingent upon the would form the bases of the latter‘s duty to furnish them with the
discretion of such agencies. Otherwise, the enjoyment of the documents requested. While petitioners pray that said information be
constitutional right may be rendered nugatory by any whimsical exercise equally released to the CoA, it must be pointed out that the CoA has
of agency discretion. The constitutional duty, not being discretionary, not been impleaded as a party to these cases nor has it filed any petition
its performance may be compelled by a writ of mandamus in a before the Court to be allowed access to or to compel the release of any
proper case. official document relevant to the conduct of its audit investigations.
While the Court recognizes that the information requested is a matter of
But what is a proper case for Mandamus to issue? In the case before Us, significant public concern, however, if only to ensure that the
the public right to be enforced and the concomitant duty of the State parameters of disclosure are properly foisted and so as not to unduly
are unequivocably set forth in the Constitution. The decisive question hamper the equally important interests of the government, it is
on the propriety of the issuance of the writ of mandamus in this constrained to deny petitioners‘ prayer on this score, without prejudice
case is, whether the information sought by the petitioner is within to a proper mandamus case which they, or even the CoA, may choose
the ambit of the constitutional guarantee. (Emphases supplied) to pursue through a separate petition.

It bears clarification that the Court‘s denial herein should only cover
Corollarily, in the case of Valmonte v. Belmonte Jr.[257] (Valmonte), it has
petitioners‘ plea to be furnished with such schedule/list and report and
been clarified that the right to information does not include the right to
not in any way deny them, or the general public, access to official
compel the preparation of "lists, abstracts, summaries and the like.” In
documents which are already existing and of public record. Subject to
the same case, it was stressed that it is essential that the "applicant has a
reasonable regulation and absent any valid statutory prohibition,
well- defined, clear and certain legal right to the thing demanded and
access to these documents should not be proscribed. Thus, in
that it is the imperative duty of defendant to perform the act required.”
Valmonte, while the Court denied the application for mandamus towards
Hence, without the foregoing substantiations, the Court cannot grant a
the preparation of the list requested by petitioners therein, it
particular request for information. The pertinent portions of Valmonte
nonetheless allowed access to the documents sought for by the latter,
are hereunder quoted:[258]
subject, however, to the custodian‘s reasonable regulations, viz.:[259]

Although citizens are afforded the right to information and, pursuant


In fine, petitioners are entitled to access to the documents evidencing
thereto, are entitled to "access to official records," the Constitution
loans granted by the GSIS, subject to reasonable regulations that the
does not accord them a right to compel custodians of official
latter may promulgate relating to the manner and hours of examination,
records to prepare lists, abstracts, summaries and the like in their
to the end that damage to or loss of the records may be avoided, that
desire to acquire information on matters of public concern.
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
It must be stressed that it is essential for a writ of mandamus to issue
records may be insured [Legaspi v. Civil Service Commission, supra at p. 538,
that the applicant has a well-defined, clear and certain legal right
quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the
to the thing demanded and that it is the imperative duty of
second and third alternative acts sought to be done by petitioners, is
defendant to perform the act required. The corresponding duty of
meritorious.
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;
However, the same cannot be said with regard to the first act sought by
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.]
petitioners, i.e., "to furnish petitioners the list of the names of the
The request of the petitioners fails to meet this standard, there
Batasang Pambansa members belonging to the UNIDO and PDP-
being no duty on the part of respondent to prepare the list
Laban who were able to secure clean loans immediately before the
requested. (Emphases supplied)
February 7 election thru the intercession/marginal note of the then
First Lady Imelda Marcos.”
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
The Court, therefore, applies the same treatment here.
to establish a "a well-defined, clear and certain legal right” to be
furnished by the Executive Secretary and/or the DBM of their
2. Petitioners’ Prayer to Include Matters in Congressional the reach of the TRO because they cannot be considered as 'remaining
Deliberations. PDAF.‘“ They conclude that this is a reasonable interpretation of the
TRO by the DBM.[262]
Petitioners further seek that the Court "[order] the inclusion in
budgetary deliberations with the Congress of all presently, off-budget, The Court agrees with petitioners in part.
lump sum, discretionary funds including but not limited to, proceeds
from the x x x Malampaya Fund, remittances from the [PAGCOR] and At the outset, it must be observed that the issue of whether or not the
the [PCSO] or the Executive‘s Social Funds[.]”[260] Court‘s September 10, 2013 TRO should be lifted is a matter rendered
moot by the present Decision. The unconstitutionality of the 2013
Suffice it to state that the above-stated relief sought by petitioners PDAF Article as declared herein has the consequential effect of
covers a matter which is generally left to the prerogative of the political converting the temporary injunction into a permanent one. Hence,
branches of government. Hence, lest the Court itself overreach, it must from the promulgation of this Decision, the release of the
equally deny their prayer on this score. remaining PDAF funds for 2013, among others, is now
permanently enjoined.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of
Decision. The propriety of the DBM‘s interpretation of the concept of "release”
must, nevertheless, be resolved as it has a practical impact on the
The final issue to be resolved stems from the interpretation accorded by execution of the current Decision. In particular, the Court must resolve
the DBM to the concept of released funds. In response to the Court‘s the issue of whether or not PDAF funds covered by obligated SAROs,
September 10, 2013 TRO that enjoined the release of the remaining at the time this Decision is promulgated, may still be disbursed
PDAF allocated for the year 2013, the DBM issued Circular Letter No. following the DBM‘s interpretation in DBM Circular 2013-8.
2013-8 dated September 27, 2013 (DBM Circular 2013-8) which
pertinently reads as follows: On this score, the Court agrees with petitioners‘ posturing for the
fundamental reason that funds covered by an obligated SARO are yet to
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, be "released” under legal contemplation. A SARO, as defined by the
where a Special Allotment Release Order (SARO) has been issued by DBM itself in its website, is "[a]specific authority issued to identified
the DBM and such SARO has been obligated by the implementing agencies to incur obligations not exceeding a given amount during a
agencies prior to the issuance of the TRO, may continually be specified period for the purpose indicated. It shall cover expenditures
implemented and disbursements thereto effected by the agencies the release of which is subject to compliance with specific laws or
concerned. 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
Based on the text of the foregoing, the DBM authorized the continued
directive to pay. Practically speaking, the SARO does not have the
implementation and disbursement of PDAF funds as long as they are:
direct and immediate effect of placing public funds beyond the control
first, covered by a SARO; and, second, that said SARO had been
of the disbursing authority. In fact, a SARO may even be withdrawn
obligated by the implementing agency concerned prior to the issuance
under certain circumstances which will prevent the actual release of
of the Court‘s September 10, 2013 TRO.
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
Petitioners take issue with the foregoing circular, arguing that ?the
SARO. As may be determined from the statements of the DBM
issuance of the SARO does not yet involve the release of funds under
representative during the Oral Arguments:[265]
the PDAF, as release is only triggered by the issuance of a Notice of
Cash Allocation [(NCA)].”[261] As such, PDAF disbursements, even if
Justice Bernabe: Is the notice of allocation issued simultaneously with
covered by an obligated SARO, should remain enjoined.
the SARO?

For their part, respondents espouse that the subject TRO only covers
xxxx
"unreleased and unobligated allotments.” They explain that once a
SARO has been issued and obligated by the implementing agency
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go
concerned, the PDAF funds covered by the same are already "beyond
signal for the agencies to obligate or to enter into commitments.
The NCA, Your Honor, is already the go signal to the treasury for Special Provisions, (b) all other Congressional Pork Barrel provisions
us to be able to pay or to liquidate the amounts obligated in the similar thereto, and (c) the phrases (1) ?and for such other purposes as
SARO; so it comes after. x x x The NCA, Your Honor, is the go signal may be hereafter directed by the President” under Section 8 of PD 910,
for the MDS for the authorized government-disbursing banks to, and (2) "to finance the priority infrastructure development projects”
therefore, pay the payees depending on the projects or projects covered under Section 12 of PD 1869, as amended by PD 1993, must only be
by the SARO and the NCA. treated as prospective in effect in view of the operative fact doctrine.

Justice Bernabe: Are there instances that SAROs are cancelled or To explain, the operative fact doctrine exhorts the recognition that until
revoked? the judiciary, in an appropriate case, declares the invalidity of a certain
legislative or executive act, such act is presumed constitutional and thus,
Atty. Ruiz: Your Honor, I would like to instead submit that there are entitled to obedience and respect and should be properly enforced and
instances that the SAROs issued are withdrawn by the DBM. complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,[266] the doctrine merely "reflect[s]
Justice Bernabe: They are withdrawn? awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring measure is valid, a period of time may have elapsed before it can
supplied) 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
Thus, unless an NCA has been issued, public funds should not be
such adjudication.”[267] "In the language of an American Supreme Court
treated as funds which have been "released.” In this respect, therefore,
decision: 'The actual existence of a statute, prior to such a determination
the disbursement of 2013 PDAF funds which are only covered by
[of unconstitutionality], is an operative fact and may have
obligated SAROs, and without any corresponding NCAs issued, must,
consequences which cannot justly be ignored.‘“[268]
at the time of this Decision’s promulgation, be enjoined and
consequently reverted to the unappropriated surplus of the general
For these reasons, this Decision should be heretofore applied
fund. Verily, in view of the declared unconstitutionality of the 2013
prospectively.
PDAF Article, the funds appropriated pursuant thereto cannot be
disbursed even though already obligated, else the Court sanctions the
Conclusion
dealing of funds coming from an unconstitutional source.

The Court renders this Decision to rectify an error which has persisted
This same pronouncement must be equally applied to (a) the
in the chronicles of our history. In the final analysis, the Court must
Malampaya Funds which have been obligated but not released –
strike down the Pork Barrel System as unconstitutional in view of the
meaning, those merely covered by a SARO – under the phrase "and for
inherent defects in the rules within which it operates. To recount,
such other purposes as may be hereafter directed by the President”
insofar as it has allowed legislators to wield, in varying gradations, non-
pursuant to Section 8 of PD 910; and (b) funds sourced from the
oversight, post- enactment authority in vital areas of budget execution,
Presidential Social Fund under the phrase "to finance the priority
the system has violated the principle of separation of powers; insofar
infrastructure development projects” pursuant to Section 12 of PD
as it has conferred unto legislators the power of appropriation by giving
1869, as amended by PD 1993, which were altogether declared by the
them personal, discretionary funds from which they are able to fund
Court as unconstitutional. However, these funds should not be reverted
specific projects which they themselves determine, it has similarly
to the general fund as afore-stated but instead, respectively remain
violated the principle of non- delegability of legislative power;
under the Malampaya Funds and the Presidential Social Fund to be
insofar as it has created a system of budgeting wherein items are not
utilized for their corresponding special purposes not otherwise declared
textualized into the appropriations bill, it has flouted the prescribed
as unconstitutional.
procedure of presentment and, in the process, denied the President
the power to veto items; insofar as it has diluted the effectiveness of
E. Consequential Effects of Decision.
congressional oversight by giving legislators a stake in the affairs of
budget execution, an aspect of governance which they may be called to
As a final point, it must be stressed that the Court‘s pronouncement
monitor and scrutinize, the system has equally impaired public
anent the unconstitutionality of (a) the 2013 PDAF Article and its
accountability; insofar as it has authorized legislators, who are national
officers, to intervene in affairs of purely local nature, despite the non-delegability of legislative power.
existence of capable local institutions, it has likewise subverted genuine
local autonomy; and again, insofar as it has conferred to the President Accordingly, the Court‘s temporary injunction dated September 10,
the power to appropriate funds intended by law for energy-related 2013 is hereby declared to be PERMANENT. Thus, the
purposes only to other purposes he may deem fit as well as other public disbursement/release of the remaining PDAF funds allocated for the
funds under the broad classification of "priority infrastructure year 2013, as well as for all previous years, and the funds sourced from
development projects,” it has once more transgressed the principle of (1) the Malampaya Funds under the phrase "and for such other
non-delegability. purposes as may be hereafter directed by the President” pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social
For as long as this nation adheres to the rule of law, any of the Fund under the phrase ?to finance the priority infrastructure
multifarious unconstitutional methods and mechanisms the Court has development projects” pursuant to Section 12 of Presidential Decree
herein pointed out should never again be adopted in any system of No. 1869, as amended by Presidential Decree No. 1993, which are, at
governance, by any name or form, by any semblance or similarity, by the time this Decision is promulgated, not covered by Notice of Cash
any influence or effect. Disconcerting as it is to think that a system so Allocations (NCAs) but only by Special Allotment Release Orders
constitutionally unsound has monumentally endured, the Court urges (SAROs), whether obligated or not, are hereby ENJOINED. The
the people and its co- stewards in government to look forward with the remaining PDAF funds covered by this permanent injunction shall not
optimism of change and the awareness of the past. At a time of great be disbursed/released but instead reverted to the unappropriated
civic unrest and vociferous public debate, the Court fervently hopes that surplus of the general fund, while the funds under the Malampaya
its Decision today, while it may not purge all the wrongs of society nor Funds and the Presidential Social Fund shall remain therein to be
bring back what has been lost, guides this nation to the path forged by utilized for their respective special purposes not otherwise declared as
the Constitution so that no one may heretofore detract from its cause unconstitutional.
nor stray from its course. After all, this is the Court‘s bounden duty and
no other‘s. On the other hand, due to improper recourse and lack of proper
substantiation, the Court hereby DENIES petitioners‘ prayer seeking
WHEREFORE, the petitions are PARTLY GRANTED. In view of that the Executive Secretary and/or the Department of Budget and
the constitutional violations discussed in this Decision, the Court Management be ordered to provide the public and the Commission on
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 Audit complete lists/schedules or detailed reports related to the
PDAF Article; (b) all legal provisions of past and present Congressional availments and utilization of the funds subject of these cases.
Pork Barrel Laws, such as the previous PDAF and CDF Articles and Petitioners‘ access to official documents already available and of public
the various Congressional Insertions, which authorize/d legislators – record which are related to these funds must, however, not be
whether individually or collectively organized into committees – to prohibited but merely subjected to the custodian‘s reasonable
intervene, assume or participate in any of the various post-enactment regulations or any valid statutory prohibition on the same. This denial is
stages of the budget execution, such as but not limited to the areas of without prejudice to a proper mandamus case which they or the
project identification, modification and revision of project Commission on Audit may choose to pursue through a separate
identification, fund release and/or fund realignment, unrelated to the petition.
power of congressional oversight; (c) all legal provisions of past and
present Congressional Pork Barrel Laws, such as the previous PDAF The Court also DENIES petitioners‘ prayer to order the inclusion of
and CDF Articles and the various Congressional Insertions, which the funds subject of these cases in the budgetary deliberations of
confer/red personal, lump-sum allocations to legislators from which Congress as the same is a matter left to the prerogative of the political
they are able to fund specific projects which they themselves determine; branches of government.
(d) all informal practices of similar import and effect, which the Court
similarly deems to be acts of grave abuse of discretion amounting to Finally, the Court hereby DIRECTS all prosecutorial organs of the
lack or excess of jurisdiction; and (e) the phrases (1) ?and for such other government to, within the bounds of reasonable dispatch, investigate
purposes as may be hereafter directed by the President” under Section 8 and accordingly prosecute all government officials and/or private
of Presidential Decree No. 910 and (2) "to finance the priority individuals for possible criminal offenses related to the irregular,
infrastructure development projects” under Section 12 of Presidential improper and/or unlawful disbursement/utilization of all funds under
Decree No. 1869, as amended by Presidential Decree No. 1993, for the Pork Barrel System.
both failing the sufficient standard test in violation of the principle of
This Decision is immediately executory but prospective in effect.

SO ORDERED.

Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza, and Reyes, JJ.,
concur.
Sereno, C.J., Carpio, see concurring opinion.
Velasco, Jr., J., no part.
Leonardo-De Castro, J., I concur and also join the concurring opinion of
Justice Carpio.
Brion, J., I join the opinion of Justice Carpio, subject to my concurring
& dissenting opinion.
Abad, J., I join the concurring opinion of J. A.T. Carpio.
Leonen, J., see concurring opinion.
Supreme Court of the Philippines OCHOA, JR.; AND THE SECRETARY O BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, RESPONDENTS.
EN BANC
[ G.R. NO. 209164]
G.R. No. 209287, July 01, 2014
PHILIPPINE CONSTITUTION ASSOCIATION
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, (PHILCONSA), REPRESENTED BY DEAN FROILAN
BAGONG ALYANSANG MAKABAYAN; JUDY M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
TAGUIWALO, PROFESSOR, UNIVERSITY OF THE BRIONES, PETITIONERS, VS. DEPARTMENT OF BUDGET
PHILIPPINES DILIMAN, CO-CHAIRPERSON, AND MANAGEMENT AND/OR HON. FLORENCIO B.
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS ABAD, RESPONDENTS.
MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN’S
PARTY REPRESENTATIVE; REP. TERRY L. RIDON, [G.R. NO. 209260]
KABATAAN PARTYLIST REPRESENTATIVE; REP. CARLOS
ISAGANI ZARATE, BAYAN MUNA PARTY-LIST INTEGRATED BAR OF THE PHILIPPINES (IBP),
REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY PETITIONER, VS. SECRETARY FLORENCIO B. ABAD OF
GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN THE DEPARTMENT OF BUDGET AND MANAGEMENT
ANG KAPATIRAN PARTY; VENCER MARI E. (DBM), RESPONDENT.
CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR
VILLANUEVA, CONVENOR, YOUTH ACT NOW, [ G.R. NO. 209442]
PETITIONERS, VS. BENIGNO SIMEON C. AQUINO III,
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; GRECO ANTONIOUS BEDA B. BELGICA; BISHOP
PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND REUBEN M ABANTE AND REV. JOSE L. GONZALEZ,
FLORENCIO B. ABAD, SECRETARY THE DEPARTMENT PETITIONERS, VS. PRESIDENT BENIGNO SIMEON C.
OF BUDGET AND MANAGEMENT, RESPONDENTS. AQUINO III, THE SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
[G.R. NO. 209135] DRILON; THE HOUSE OF REPRESENTATIVES,
REPRESENTED BY SPEAKER FELICIANO BELMONTE,
AUGUSTO L. SYJUCO JR., PH.D., PETITIONER, VS. JR.; THE EXECUTIVE OFFICE, REPRESENTED BY
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE EXECUTIVE SECRETARY PAQUITO N. OCHOA, J THE
SECRETARY OF DEPARTMENT OF BUDGET AND DEPARTMENT OF BUDGET AND MANAGEMENT,
MANAGEMENT; AND HON. FRANKLIN MAGTUNAO REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DRILON, IN HIS CAPACITY AS THE SENATE PRESIDENT DEPARTMENT OF FINANCE, REPRESENTED BY
OF TH PHILIPPINES, RESPONDENTS. SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF
TREASURY, REPRESENTED BY ROSALIA V. DE LEON,
[G.R. NO. 209136] RESPONDENTS.

MANUELITO R. LUNA, PETITIONER, VS. SECRETARY [G.R. NO. 209517]


FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD
OF THE DEPARTMENT OF BUDGET AND CONFEDERATION FOR UNITY, RECOGNITION AND
MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO ADVANCEMENT OF GOVERNMENT EMPLOYEES
OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF (COURAGE), REPRESENTED BY ITS 1ST VICE
THE PRESIDENT, RESPONDENTS. PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA
NARTATES, FOR HERSELF AND AS NATIONAL
[ G.R. NO. 209155] PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-
ATTY. JOSE MALVAR VILLEGAS, JR., PETITIONER, VS. NHA); MANUEL BACLAGON, FOR HIMSELF AND AS
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES
ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF within the Executive Branch of the Government. But the challenges are
SOCIAL WELFARE AND DEVELOPMENT CENTRAL further complicated by the interjection of allegations of transfer of
OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR funds to agencies or offices outside of the Executive.
HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES Antecedents
ASSOCIATION (DAREA); ALBERT MAGALANG, FOR
HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT What has precipitated the controversy?
AND MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a
PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN privilege speech in the Senate of the Philippines to reveal that some
NG MGA KAWANI NG MMDA (KKK-MMDA), Senators, including himself, had been allotted an additional P50 Million
PETITIONERS, VS. BENIGNO SIMEON C. AQUINO III, each as “incentive” for voting in favor of the impeachment of Chief
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; Justice Renato C. Corona.
PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND
HON. FLORENCIO B. ABAD, SECRETA OF THE Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of
DEPARTMENT OF BUDGET AND MANAGEMENT, the DBM issued a public statement entitled Abad: Releases to Senators Part
RESPONDENTS. of Spending Acceleration Program,[1] explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to
[G.R. NO. 209569] ramp up spending to accelerate economic expansion. He clarified that
the funds had been released to the Senators based on their letters of
VOLUNTEERS AGAINST CRIME AND CORRUPTION request for funding; and that it was not the first time that releases from
(VACC), REPRESENTED BY DANTE L. JIMENEZ, the DAP had been made because the DAP had already been instituted
PETITIONER, VS. PAQUITO N. OCHOA, EXECUTIVE in 2011 to ramp up spending after sluggish disbursements had caused
SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF the growth of the gross domestic product (GDP) to slow down. He
THE DEPARTMENT OF BUDGET AND MANAGEMENT, explained that the funds under the DAP were usually taken from (1)
RESPONDENTS. unreleased appropriations under Personnel Services;[2] (2)
unprogrammed funds; (3) carry-over appropriations unreleased from
DECISION the previous year; and (4) budgets for slow-moving items or projects
that had been realigned to support faster-disbursing projects.
BERSAMIN, J.:
The DBM soon came out to claim in its website[3] that the DAP releases
For resolution are the consolidated petitions assailing the had been sourced from savings generated by the Government, and from
constitutionality of the Disbursement Acceleration Program (DAP), unprogrammed funds; and that the savings had been derived from (1)
National Budget Circular (NBC) No. 541, and related issuances of the the pooling of unreleased appropriations, like unreleased Personnel
Department of Budget and Management (DBM) implementing the Services[4] appropriations that would lapse at the end of the year,
DAP. unreleased appropriations of slow-moving projects and discontinued
projects per zero-based budgeting findings;[5] and (2) the withdrawal of
unobligated allotments also for slow-moving programs and projects that
At the core of the controversy is Section 29(1) of Article VI of the 1987 had been earlier released to the agencies of the National Government.
Constitution, a provision of the fundamental law that firmly ordains
that “[n]o money shall be paid out of the Treasury except in pursuance The DBM listed the following as the legal bases for the DAP’s use of
of an appropriation made by law.” The tenor and context of the savings,[6] namely: (1) Section 25(5), Article VI of the 1987 Constitution,
challenges posed by the petitioners against the DAP indicate that the which granted to the President the authority to augment an item for his
DAP contravened this provision by allowing the Executive to allocate office in the general appropriations law; (2) Section 49 (Authority to Use
public money pooled from programmed and unprogrammed funds of Savings for Certain Purposes) and Section 38 (Suspension of Expenditure
its various agencies in the guise of the President exercising his Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292
constitutional authority under Section 25(5) of the 1987 Constitution to (Administrative Code of 1987); and (3) the General Appropriations Acts
transfer funds out of savings to augment the appropriations of offices (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a)
use of savings; (b) meanings of savings and augmentation; and (c) A. Whether or not certiorari, prohibition, and mandamus are proper
priority in the use of savings. remedies to assail the constitutionality and validity of the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541,
As for the use of unprogrammed funds under the DAP, the DBM cited and all other executive issuances allegedly implementing the DAP.
as legal bases the special provisions on unprogrammed fund contained Subsumed in this issue are whether there is a controversy ripe for
in the GAAs of 2011, 2012 and 2013. judicial determination, and the standing of petitioners.

The revelation of Sen. Estrada and the reactions of Sec. Abad and the Substantive Issues:
DBM brought the DAP to the consciousness of the Nation for the first
time, and made this present controversy inevitable. That the issues B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
against the DAP came at a time when the Nation was still seething in Constitution, which provides: “No money shall be paid out of the
anger over Congressional pork barrel – “an appropriation of Treasury except in pursuance of an appropriation made by law.”
government spending meant for localized projects and secured solely or
primarily to bring money to a representative’s district” [7] – excited the C. Whether or not the DAP, NBC No. 541, and all other executive
Nation as heatedly as the pork barrel controversy. issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI of
the 1987 Constitution insofar as:
Nine petitions assailing the constitutionality of the DAP and the (a) They treat the unreleased appropriations and unobligated allotments
issuances relating to the DAP were filed within days of each other, as withdrawn from government agencies as “savings” as the term is used
follows: G.R. No. 209135 (Syjuco), on October 7, 2013; G.R. No. in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012
209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),[8] on and 2013;
October 16, 2013; G.R. No. 209164 (PHILCONSA), on October 8,
2013; G.R. No. 209260 (IBP), on October 16, 2013; G.R. No. 209287 (b) They authorize the disbursement of funds for projects or programs
(Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on October not provided in the GAAs for the Executive Department; and
29, 2013; G.R. No. 209517 (COURAGE), on November 6, 2013; and
G.R. No. 209569 (VACC), on November 8, 2013. (c) They “augment” discretionary lump sum appropriations in the
GAAs.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s
attention NBC No. 541 (Adoption of Operational Efficiency Measure –
D. Whether or not the DAP violates: (1) the Equal Protection Clause,
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging
(2) the system of checks and balances, and (3) the principle of public
that NBC No. 541, which was issued to implement the DAP, directed
accountability enshrined in the 1987 Constitution considering that it
the withdrawal of unobligated allotments as of June 30, 2012 of
authorizes the release of funds upon the request of legislators.
government agencies and offices with low levels of obligations, both for
continuing and current allotments.
E. Whether or not factual and legal justification exists to issue a
temporary restraining order to restrain the implementation of the DAP,
In due time, the respondents filed their Consolidated Comment through
NBC No. 541, and all other executive issuances allegedly implementing
the Office of the Solicitor General (OSG).
the DAP.

The Court directed the holding of oral arguments on the significant


In its Consolidated Comment, the OSG raised the matter of
issues raised and joined.
unprogrammed funds in order to support its argument regarding the
President’s power to spend. During the oral arguments, the propriety of
Issues
releasing unprogrammed funds to support projects under the DAP was
considerably discussed. The petitioners in G.R. No. 209287 (Araullo)
Under the Advisory issued on November 14, 2013, the presentations of
and G.R. No. 209442 (Belgica) dwelled on unprogrammed funds in
the parties during the oral arguments were limited to the following, to
their respective memoranda. Hence, an additional issue for the oral
wit:
arguments is stated as follows:

Procedural Issue:
F. Whether or not the release of unprogrammed funds under the DAP g. NBC No. 440 dated January 30, 1995
was in accord with the GAAs. (Adoption of a Simplified Fund Release
System in the Government).

During the oral arguments held on November 19, 2013, the Court
directed Sec. Abad to submit a list of savings brought under the DAP
(3) A breakdown of the sources of savings, including savings from
that had been sourced from (a) completed programs; (b) discontinued or
discontinued projects and unpaid appropriations for compensation
abandoned programs; (c) unpaid appropriations for compensation; (d) a
from 2011 to 2013
certified copy of the President’s directive dated June 27, 2012 referred
to in NBC No. 541; and (e) all circulars or orders issued in relation to
the DAP.[9] On January 28, 2014, the OSG, to comply with the Resolution issued
on January 21, 2014 directing the respondents to submit the documents
In compliance, the OSG submitted several documents, as follows: not yet submitted in compliance with the directives of the Court or its
Members, submitted several evidence packets to aid the Court in
(1) A certified copy of the Memorandum for the President dated June understanding the factual bases of the DAP, to wit:
25, 2012 (Omnibus Authority to Consolidate Savings/ Unutilized Balances and
their Realignment);[10] (1) First Evidence Packet[11] – containing seven memoranda issued by
the DBM through Sec. Abad, inclusive of annexes, listing in detail the
(2) Circulars and orders, which the respondents identified as related to 116 DAP identified projects approved and duly signed by the President,
the DAP, namely: as follows:

a. NBC No. 528 dated January 3, 2011 a. Memorandum for the President dated
(Guidelines on the Release of Funds for FY October 12, 2011 (FY 2011 Proposed
2011); Disbursement Acceleration Program (Projects
and Sources of Funds);
b. NBC No. 535 dated December 29, 2011
(Guidelines on the Release of Funds for FY b. Memorandum for the President dated
2012); December 12, 2011 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and
c. NBC No. 541 dated July 18, 2012 its Realignment);
(Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated c. Memorandum for the President dated
Allotments as of June 30, 2012); June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and
d. NBC No. 545 dated January 2, 2013 their Realignment);
(Guidelines on the Release of Funds for FY
2013); d. Memorandum for the President dated
September 4, 2012 (Release of funds for
e. DBM Circular Letter No. 2004-2 dated other priority projects and expenditures of the
January 26, 2004 (Budgetary Treatment of Government);
Commitments/Obligations of the National
Government); e. Memorandum for the President dated
December 19, 2012 (Proposed Priority
f. COA-DBM Joint Circular No. 2013-1 Projects and Expenditures of the Government);
dated March 15, 2013 (Revised Guidelines
on the Submission of Quarterly Accountability f. Memorandum for the President dated
Reports on Appropriations, Allotments, May 20, 2013 (Omnibus Authority to
Obligations and Disbursements); Consolidate Savings/Unutilized Balances and
their Realignment to Fund the Quarterly
Disbursement Acceleration Program); and RULING

g. Memorandum for the President dated I.


September 25, 2013 (Funding for the Task Procedural Issue:
Force Pablo Rehabilitation Plan).
a) The petitions under Rule 65 are
proper remedies
(2) Second Evidence Packet[12] – consisting of 15 applications of the
DAP, with their corresponding Special Allotment Release Orders All the petitions are filed under Rule 65 of the Rules of Court, and include
(SAROs) and appropriation covers; applications for the issuance of writs of preliminary prohibitory
injunction or temporary restraining orders. More specifically, the nature
(3) Third Evidence Packet[13] – containing a list and descriptions of 12 of the petitions is individually set forth hereunder, to wit:
projects under the DAP;
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus
G.R. No. 209136 (Luna) Certiorari and Prohibition
(4) Fourth Evidence Packet[14] – identifying the DAP-related portions
G.R. No. 209155 (Villegas) Certiorari and Prohibition
of the Annual Financial Report (AFR) of the Commission on Audit for
G.R. No. 209164 (PHILCONSA) Certiorari and Prohibition
2011 and 2012;
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorari and Prohibition
(5) Fifth Evidence Packet[15] – containing a letter of Department of
G.R. No. 209442 (Belgica) Certiorari
Transportation and Communications (DOTC) Sec. Joseph Abaya
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
addressed to Sec. Abad recommending the withdrawal of funds from
G.R. No. 209569 (VACC) Certiorari and Prohibition
his agency, inclusive of annexes; and

The respondents submit that there is no actual controversy that is ripe


(6) Sixth Evidence Packet[16] – a print-out of the Solicitor General’s
for adjudication in the absence of adverse claims between the parties;[19]
visual presentation for the January 28, 2014 oral arguments.
that the petitioners lacked legal standing to sue because no allegations
were made to the effect that they had suffered any injury as a result of
On February 5, 2014,[17] the OSG forwarded the Seventh Evidence the adoption of the DAP and issuance of NBC No. 541; that their being
Packet,[18] which listed the sources of funds brought under the DAP, taxpayers did not immediately confer upon the petitioners the legal
the uses of such funds per project or activity pursuant to DAP, and the standing to sue considering that the adoption and implementation of
legal bases thereof. the DAP and the issuance of NBC No. 541 were not in the exercise of
the taxing or spending power of Congress;[20] and that even if the
On February 14, 2014, the OSG submitted another set of documents in petitioners had suffered injury, there were plain, speedy and adequate
further compliance with the Resolution dated January 28, 2014, viz: remedies in the ordinary course of law available to them, like assailing
the regularity of the DAP and related issuances before the Commission
(1) Certified copies of the certifications issued by the Bureau of on Audit (COA) or in the trial courts.[21]
Treasury to the effect that the revenue collections exceeded the original
revenue targets for the years 2011, 2012 and 2013, including collections The respondents aver that the special civil actions of certiorari and
arising from sources not considered in the original revenue targets, prohibition are not proper actions for directly assailing the
which certifications were required for the release of the unprogrammed constitutionality and validity of the DAP, NBC No. 541, and the other
funds as provided in Special Provision No. 1 of Article XLV, Article executive issuances implementing the DAP.[22]
XVI, and Article XLV of the 2011, 2012 and 2013 GAAs; and

In their memorandum, the respondents further contend that there is no


(2) A report on releases of savings of the Executive Department for the authorized proceeding under the Constitution and the Rules of Court for
use of the Constitutional Commissions and other branches of the questioning the validity of any law unless there is an actual case or
Government, as well as the fund releases to the Senate and the controversy the resolution of which requires the determination of the
Commission on Elections (COMELEC). constitutional question; that the jurisdiction of the Court is largely
appellate; that for a court of law to pass upon the constitutionality of a
law or any act of the Government when there is no case or controversy The background and rationale of the expansion of judicial power under
is for that court to set itself up as a reviewer of the acts of Congress and the 1987 Constitution were laid out during the deliberations of the 1986
of the President in violation of the principle of separation of powers; Constitutional Commission by Commissioner Roberto R. Concepcion
and that, in the absence of a pending case or controversy involving the (a former Chief Justice of the Philippines) in his sponsorship of the
DAP and NBC No. 541, any decision herein could amount to a mere proposed provisions on the Judiciary, where he said:–
advisory opinion that no court can validly render.[23]
The Supreme Court, like all other courts, has one main function: to
The respondents argue that it is the application of the DAP to actual settle actual controversies involving conflicts of rights which are
situations that the petitioners can question either in the trial courts or in demandable and enforceable. There are rights which are guaranteed by
the COA; that if the petitioners are dissatisfied with the ruling either of law but cannot be enforced by a judicial party. In a decided case, a
the trial courts or of the COA, they can appeal the decision of the trial husband complained that his wife was unwilling to perform her duties
courts by petition for review on certiorari, or assail the decision or final as a wife. The Court said: “We can tell your wife what her duties as such
order of the COA by special civil action for certiorari under Rule 64 of are and that she is bound to comply with them, but we cannot force her
the Rules of Court.[24] physically to discharge her main marital duty to her husband. There are
some rights guaranteed by law, but they are so personal that to enforce
The respondents’ arguments and submissions on the procedural issue them by actual compulsion would be highly derogatory to human
are bereft of merit. dignity.”

Section 1, Article VIII of the 1987 Constitution expressly provides: This is why the first part of the second paragraph of Section 1 provides
that:
Section 1. The judicial power shall be vested in one Supreme Court and Judicial power includes the duty of courts to settle actual controversies
in such lower courts as may be established by law. involving rights which are legally demandable or enforceable…

The courts, therefore, cannot entertain, much less decide, hypothetical


Judicial power includes the duty of the courts of justice to settle actual
questions. In a presidential system of government, the Supreme
controversies involving rights which are legally demandable and
Court has, also, another important function. The powers of
enforceable, and to determine whether or not there has been a grave
government are generally considered divided into three branches:
abuse of discretion amounting to lack or excess of jurisdiction on the
the Legislative, the Executive and the Judiciary. Each one is
part of any branch or instrumentality of the Government.
supreme within its own sphere and independent of the others.
Because of that supremacy power to determine whether a given
Thus, the Constitution vests judicial power in the Court and in such law is valid or not is vested in courts of justice.
lower courts as may be established by law. In creating a lower court,
Congress concomitantly determines the jurisdiction of that court, and Briefly stated, courts of justice determine the limits of power of
that court, upon its creation, becomes by operation of the Constitution the agencies and offices of the government as well as those of its
one of the repositories of judicial power.[25] However, only the Court is officers. In other words, the judiciary is the final arbiter on the
a constitutionally created court, the rest being created by Congress in its question whether or not a branch of government or any of its
exercise of the legislative power. officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion
The Constitution states that judicial power includes the duty of the amounting to excess of jurisdiction or lack of jurisdiction. This is
courts of justice not only “to settle actual controversies involving rights not only a judicial power but a duty to pass judgment on matters
which are legally demandable and enforceable” but also “to determine of this nature.
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 This is the background of paragraph 2 of Section 1, which means
instrumentality of the Government.” It has thereby expanded the that the courts cannot hereafter evade the duty to settle matters of
concept of judicial power, which up to then was confined to its this nature, by claiming that such matters constitute a political
traditional ambit of settling actual controversies involving rights that question. (Bold emphasis supplied)[26]
were legally demandable and enforceable.
x x x In times of social disquietude or political excitement, the great
Upon interpellation by Commissioner Nolledo, Commissioner landmarks of the Constitution are apt to be forgotten or marred, if not
Concepcion clarified the scope of judicial power in the following entirely obliterated. In cases of conflict, the judicial department is
manner:– the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
MR. NOLLEDO. x x x department and among the integral or constituent units thereof.

The second paragraph of Section 1 states: “Judicial power includes the xxxx
duty of courts of justice to settle actual controversies…” The term
“actual controversies” according to the Commissioner should refer to The Constitution is a definition of the powers of government.
questions which are political in nature and, therefore, the courts should Who is to determine the nature, scope and extent of such powers?
not refuse to decide those political questions. But do I understand it The Constitution itself has provided for the instrumentality of the
right that this is restrictive or only an example? I know there are cases judiciary as the rational way. And when the judiciary mediates to
which are not actual yet the court can assume jurisdiction. An example allocate constitutional boundaries, it does not assert any
is the petition for declaratory relief. superiority over the other department; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn
May I ask the Commissioner’s opinion about that? and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant and to establish for the parties in an actual controversy the rights
declaratory judgments. which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed “judicial supremacy”
MR. NOLLEDO. The Gentleman used the term “judicial power” but which properly is the power of judicial review under the
judicial power is not vested in the Supreme Court alone but also in Constitution. x x x [29]
other lower courts as may be created by law.

What are the remedies by which the grave abuse of discretion


MR. CONCEPCION. Yes.
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government may be determined under the
MR. NOLLEDO. And so, is this only an example?
Constitution?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to


The present Rules of Court uses two special civil actions for determining
identify political questions with jurisdictional questions. But there is a
and correcting grave abuse of discretion amounting to lack or excess of
difference.
jurisdiction. These are the special civil actions for certiorari and
prohibition, and both are governed by Rule 65. A similar remedy of
MR. NOLLEDO. Because of the expression “judicial power”?
certiorari exists under Rule 64, but the remedy is expressly applicable only
to the judgments and final orders or resolutions of the Commission on
MR. CONCEPCION. No. Judicial power, as I said, refers to
Elections and the Commission on Audit.
ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the
The ordinary nature and function of the writ of certiorari in our present
extent of lacking jurisdiction or excess of jurisdiction, that is not a
system are aptly explained in Delos Santos v. Metropolitan Bank and Trust
political question. Therefore, the court has the duty to decide.[27]
Company:[30]

Our previous Constitutions equally recognized the extent of the power In the common law, from which the remedy of certiorari evolved, the
of judicial review and the great responsibility of the Judiciary in writ of certiorari was issued out of Chancery, or the King’s Bench,
maintaining the allocation of powers among the three great branches of commanding agents or officers of the inferior courts to return the
Government. Speaking for the Court in Angara v. Electoral Commission,[28] record of a cause pending before them, so as to give the party more
Justice Jose P. Laurel intoned: sure and speedy justice, for the writ would enable the superior court to
determine from an inspection of the record whether the inferior court’s
judgment was rendered without authority. The errors were of such a further proceedings when said proceedings are without or in excess of
nature that, if allowed to stand, they would result in a substantial injury said entity’s or person’s jurisdiction, or are accompanied with grave
to the petitioner to whom no other remedy was available. If the inferior abuse of discretion, and there is no appeal or any other plain, speedy
court acted without authority, the record was then revised and corrected and adequate remedy in the ordinary course of law. Prohibition lies
in matters of law. The writ of certiorari was limited to cases in which the against judicial or ministerial functions, but not against legislative or
inferior court was said to be exceeding its jurisdiction or was not quasi-legislative functions. Generally, the purpose of a writ of
proceeding according to essential requirements of law and would lie prohibition is to keep a lower court within the limits of its jurisdiction in
only to review judicial or quasi-judicial acts. order to maintain the administration of justice in orderly channels.
Prohibition is the proper remedy to afford relief against usurpation of
The concept of the remedy of certiorari in our judicial system remains jurisdiction or power by an inferior court, or when, in the exercise of
much the same as it has been in the common law. In this jurisdiction, jurisdiction in handling matters clearly within its cognizance the inferior
however, the exercise of the power to issue the writ of certiorari is largely court transgresses the bounds prescribed to it by the law, or where there
regulated by laying down the instances or situations in the Rules of Court is no adequate remedy available in the ordinary course of law by which
in which a superior court may issue the writ of certiorari to an inferior such relief can be obtained. Where the principal relief sought is to
court or officer. Section 1, Rule 65 of the Rules of Court compellingly invalidate an IRR, petitioners’ remedy is an ordinary action for its
provides the requirements for that purpose, viz: nullification, an action which properly falls under the jurisdiction of the
Regional Trial Court. In any case, petitioners’ allegation that
xxxx “respondents are performing or threatening to perform functions
without or in excess of their jurisdiction” may appropriately be enjoined
The sole office of the writ of certiorari is the correction of errors of by the trial court through a writ of injunction or a temporary restraining
jurisdiction, which includes the commission of grave abuse of discretion order.
amounting to lack of jurisdiction. In this regard, mere abuse of
discretion is not enough to warrant the issuance of the writ. The abuse
With respect to the Court, however, the remedies of certiorari and
of discretion must be grave, which means either that the judicial or
prohibition are necessarily broader in scope and reach, and the writ of
quasi-judicial power was exercised in an arbitrary or despotic manner by
certiorari or prohibition may be issued to correct errors of jurisdiction
reason of passion or personal hostility, or that the respondent judge,
committed not only by a tribunal, corporation, board or officer
tribunal or board evaded a positive duty, or virtually refused to perform
exercising judicial, quasi-judicial or ministerial functions but also to set
the duty enjoined or to act in contemplation of law, such as when such
right, undo and restrain any act of grave abuse of discretion amounting
judge, tribunal or board exercising judicial or quasi-judicial powers acted
to lack or excess of jurisdiction by any branch or instrumentality of the
in a capricious or whimsical manner as to be equivalent to lack of
Government, even if the latter does not exercise judicial, quasi-judicial or
jurisdiction.[31]
ministerial functions. This application is expressly authorized by the text of
the second paragraph of Section 1, supra.
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact Thus, petitions for certiorari and prohibition are appropriate remedies to
that it is a corrective remedy used for the re-examination of some action raise constitutional issues and to review and/or prohibit or nullify the
of an inferior tribunal, and is directed to the cause or proceeding in the acts of legislative and executive officials.[34]
lower court and not to the court itself, while prohibition is a
preventative remedy issuing to restrain future action, and is directed to Necessarily, in discharging its duty under Section 1, supra, to set right
the court itself.[32] The Court expounded on the nature and function of and undo any act of grave abuse of discretion amounting to lack or
the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. excess of jurisdiction by any branch or instrumentality of the
Defensor:[33] Government, the Court is not at all precluded from making the inquiry
provided the challenge was properly brought by interested or affected
A petition for prohibition is also not the proper remedy to assail an IRR parties. The Court has been thereby entrusted expressly or by necessary
issued in the exercise of a quasi-legislative function. Prohibition is an implication with both the duty and the obligation of determining, in
extraordinary writ directed against any tribunal, corporation, board, appropriate cases, the validity of any assailed legislative or executive
officer or person, whether exercising judicial, quasi-judicial or action. This entrustment is consistent with the republican system of
ministerial functions, ordering said entity or person to desist from checks and balances.[35]
huge sums of public funds. The fact that public funds have been
Following our recent dispositions concerning the congressional pork allocated, disbursed or utilized by reason or on account of such
barrel, the Court has become more alert to discharge its constitutional challenged executive acts gave rise, therefore, to an actual controversy
duty. We will not now refrain from exercising our expanded judicial that is ripe for adjudication by the Court.
power in order to review and determine, with authority, the limitations
on the Chief Executive’s spending power. It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile
b) Requisites for the exercise of the power discontinued because it had fully served its purpose, saying: “In
of judicial review were complied with conclusion, Your Honors, may I inform the Court that because the
DAP has already fully served its purpose, the Administration’s
The requisites for the exercise of the power of judicial review are the economic managers have recommended its termination to the
following, namely: (1) there must be an actual case or justiciable President. x x x.”[39]
controversy before the Court; (2) the question before the Court must be
ripe for adjudication; (3) the person challenging the act must be a The Solicitor General then quickly confirmed the termination of the
proper party; and (4) the issue of constitutionality must be raised at the DAP as a program, and urged that its termination had already mooted
earliest opportunity and must be the very litis mota of the case.[36] the challenges to the DAP’s constitutionality, viz:

The first requisite demands that there be an actual case calling for the DAP as a program, no longer exists, thereby mooting these present
exercise of judicial power by the Court.[37] An actual case or cases brought to challenge its constitutionality. Any constitutional
controversy, in the words of Belgica v. Executive Secretary Ochoa:[38] challenge should no longer be at the level of the program, which is now
extinct, but at the level of its prior applications or the specific
x x x is one which involves a conflict of legal rights, an assertion of disbursements under the now defunct policy. We challenge the
opposite legal claims, susceptible of judicial resolution as distinguished petitioners to pick and choose which among the 116 DAP projects they
from a hypothetical or abstract difference or dispute. In other words, wish to nullify, the full details we will have provided by February 5. We
“[t]here must be a contrariety of legal rights that can be interpreted and urge this Court to be cautious in limiting the constitutional authority of
enforced on the basis of existing law and jurisprudence.” Related to the the President and the Legislature to respond to the dynamic needs of
requirement of an actual case or controversy is the requirement of the country and the evolving demands of governance, lest we end up
“ripeness,” meaning that the questions raised for constitutional scrutiny straight-jacketing our elected representatives in ways not consistent with
are already ripe for adjudication. “A question is ripe for adjudication our constitutional structure and democratic principles.[40]
when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then
A moot and academic case is one that ceases to present a justiciable
been accomplished or performed by either branch before a court may
controversy by virtue of supervening events, so that a declaration
come into the picture, and the petitioner must allege the existence of an
thereon would be of no practical use or value.[41]
immediate or threatened injury to itself as a result of the challenged
action.” “Withal, courts will decline to pass upon constitutional issues
The Court cannot agree that the termination of the DAP as a program
through advisory opinions, bereft as they are of authority to resolve
was a supervening event that effectively mooted these consolidated
hypothetical or moot questions.”
cases. Verily, the Court had in the past exercised its power of judicial
review despite the cases being rendered moot and academic by
An actual and justiciable controversy exists in these consolidated cases. supervening events, like: (1) when there was a grave violation of the
The incompatibility of the perspectives of the parties on the Constitution; (2) when the case involved a situation of exceptional
constitutionality of the DAP and its relevant issuances satisfy the character and was of paramount public interest; (3) when the
requirement for a conflict between legal rights. The issues being raised constitutional issue raised required the formulation of controlling
herein meet the requisite ripeness considering that the challenged principles to guide the Bench, the Bar and the public; and (4) when the
executive acts were already being implemented by the DBM, and there case was capable of repetition yet evading review.[42] Assuming that the
are averments by the petitioners that such implementation was petitioners’ several submissions against the DAP were ultimately
repugnant to the letter and spirit of the Constitution. Moreover, the sustained by the Court here, these cases would definitely come under all
implementation of the DAP entailed the allocation and expenditure of the exceptions. Hence, the Court should not abstain from exercising its
power of judicial review. Araneta v. Dinglasan.

Did the petitioners have the legal standing to sue? In the 1975 decision in Aquino v. Commission on Elections, this Court
decided to resolve the issues raised by the petition due to their “far-
Legal standing, as a requisite for the exercise of judicial review, refers to reaching implications,” even if the petitioner had no personality to file
“a right of appearance in a court of justice on a given question.” [43] The the suit. The liberal approach of Aquino v. Commission on Elections has
concept of legal standing, or locus standi, was particularly discussed in De been adopted in several notable cases, permitting ordinary citizens,
Castro v. Judicial and Bar Council,[44] where the Court said: legislators, and civic organizations to bring their suits involving the
constitutionality or validity of laws, regulations, and rulings.
In public or constitutional litigations, the Court is often burdened with
the determination of the locus standi of the petitioners due to the ever- However, the assertion of a public right as a predicate for challenging a
present need to regulate the invocation of the intervention of the Court supposedly illegal or unconstitutional executive or legislative action rests
to correct any official action or policy in order to avoid obstructing the on the theory that the petitioner represents the public in general.
efficient functioning of public officials and offices involved in public Although such petitioner may not be as adversely affected by the action
service. It is required, therefore, that the petitioner must have a personal complained against as are others, it is enough that he sufficiently
stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. demonstrates in his petition that he is entitled to protection or relief
Philippine International Air Terminals Co., Inc.: from the Court in the vindication of a public right.
The question on legal standing is whether such parties have
“alleged such a personal stake in the outcome of the controversy Quite often, as here, the petitioner in a public action sues as a citizen or
as to assure that concrete adverseness which sharpens the taxpayer to gain locus standi. That is not surprising, for even if the issue
presentation of issues upon which the court so largely depends for may appear to concern only the public in general, such capacities
illumination of difficult constitutional questions.” Accordingly, it nonetheless equip the petitioner with adequate interest to sue. In David
has been held that the interest of a person assailing the v. Macapagal-Arroyo, the Court aptly explains why:
constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act Case law in most jurisdictions now allows both “citizen” and “taxpayer”
is invalid, but also that he sustained or is in imminent danger of standing in public actions. The distinction was first laid down in
sustaining some direct injury as a result of its enforcement, and Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit
not merely that he suffers thereby in some indefinite way. It must is in a different category from the plaintiff in a citizen’s suit. In the
appear that the person complaining has been or is about to be former, the plaintiff is affected by the expenditure of public funds,
denied some right or privilege to which he is lawfully entitled or while in the latter, he is but the mere instrument of the public
that he is about to be subjected to some burdens or penalties by concern. As held by the New York Supreme Court in People ex rel Case
reason of the statute or act complained of. v. Collins: “In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every
It is true that as early as in 1937, in People v. Vera, the Court adopted the
citizen to interfere and see that a public offence be properly
direct injury test for determining whether a petitioner in a public action
pursued and punished, and that a public grievance be remedied.”
had locus standi. There, the Court held that the person who would assail
With respect to taxpayer’s suits, Terr v. Jordan held that “the right of a
the validity of a statute must have “a personal and substantial interest in
citizen and a taxpayer to maintain an action in courts to restrain
the case such that he has sustained, or will sustain direct injury as a
the unlawful use of public funds to his injury cannot be
result.” Vera was followed in Custodio v. President of the Senate, Manila Race
denied.”[45]
Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the
Philippines v. Felix, and Pascual v. Secretary of Public Works.
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Yet, the Court has also held that the requirement of locus standi, being a Terminals Co., Inc.[46] that “[s]tanding is a peculiar concept in
mere procedural technicality, can be waived by the Court in the exercise constitutional law because in some cases, suits are not brought by
of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court parties who have been personally injured by the operation of a law or
liberalized the approach when the cases had “transcendental any other government act but by concerned citizens, taxpayers or voters
importance.” Some notable controversies whose petitioners did not who actually sue in the public interest.”
pass the direct injury test were allowed to be treated in the same way as in
Except for PHILCONSA, a petitioner in G.R. No. 209164, the receipts and expenditures for the fiscal year for which it was intended to
petitioners have invoked their capacities as taxpayers who, by averring be effective based on the results of operations during the preceding
that the issuance and implementation of the DAP and its relevant fiscal years. The term was given a different meaning under Republic Act
issuances involved the illegal disbursements of public funds, have an No. 992 (Revised Budget Act) by describing the budget as the delineation
interest in preventing the further dissipation of public funds. The of the services and products, or benefits that would accrue to the public
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) together with the estimated unit cost of each type of service, product or
also assert their right as citizens to sue for the enforcement and benefit.[52] For a forthright definition, budget should simply be
observance of the constitutional limitations on the political branches of identified as the financial plan of the Government,[53] or “the master
the Government.[47] On its part, PHILCONSA simply reminds that the plan of government.”[54]
Court has long recognized its legal standing to bring cases upon
constitutional issues.[48] Luna, the petitioner in G.R. No. 209136, cites The concept of budgeting has not been the product of recent
his additional capacity as a lawyer. The IBP, the petitioner in G.R. No. economies. In reality, financing public goals and activities was an idea
209260, stands by “its avowed duty to work for the rule of law and of that existed from the creation of the State.[55] To protect the people, the
paramount importance of the question in this action, not to mention its territory and sovereignty of the State, its government must perform vital
civic duty as the official association of all lawyers in this country.” [49] functions that required public expenditures. At the beginning,
enormous public expenditures were spent for war activities,
Under their respective circumstances, each of the petitioners has preservation of peace and order, security, administration of justice,
established sufficient interest in the outcome of the controversy as to religion, and supply of limited goods and services.[56] In order to finance
confer locus standi on each of them. those expenditures, the State raised revenues through taxes and
impositions.[57] Thus, budgeting became necessary to allocate public
In addition, considering that the issues center on the extent of the revenues for specific government functions.[58] The State’s budgeting
power of the Chief Executive to disburse and allocate public funds, mechanism eventually developed through the years with the growing
whether appropriated by Congress or not, these cases pose issues that functions of its government and changes in its market economy.
are of transcendental importance to the entire Nation, the petitioners
included. As such, the determination of such important issues call for The Philippine Budget System has been greatly influenced by western
the Court’s exercise of its broad and wise discretion “to waive the public financial institutions. This is because of the country’s past as a
requirement and so remove the impediment to its addressing and colony successively of Spain and the United States for a long period of
resolving the serious constitutional questions raised.”[50] time. Many aspects of the country’s public fiscal administration,
including its Budget System, have been naturally patterned after the
II. practices and experiences of the western public financial institutions. At
Substantive Issues any rate, the Philippine Budget System is presently guided by two
principal objectives that are vital to the development of a progressive
1. democratic government, namely: (1) to carry on all government
Overview of the Budget System activities under a comprehensive fiscal plan developed, authorized and
executed in accordance with the Constitution, prevailing statutes and
the principles of sound public management; and (2) to provide for the
An understanding of the Budget System of the Philippines will aid the periodic review and disclosure of the budgetary status of the
Court in properly appreciating and justly resolving the substantive Government in such detail so that persons entrusted by law with the
issues. responsibility as well as the enlightened citizenry can determine the
adequacy of the budget actions taken, authorized or proposed, as well as
a) Origin of the Budget System the true financial position of the Government.[59]

The term “budget” originated from the Middle English word bouget that b) Evolution of the Philippine Budget System
had derived from the Latin word bulga (which means bag or purse).[51]
The budget process in the Philippines evolved from the early years of
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) the American Regime up to the passage of the Jones Law in 1916. A
defined “budget” as the financial program of the National Government Budget Office was created within the Department of Finance by the
for a designated fiscal year, consisting of the statements of estimated Jones Law to discharge the budgeting function, and was given the
responsibility to assist in the preparation of an executive budget for universities and colleges; and (2) a Corporate Budget Call, which is
submission to the Philippine Legislature.[60] addressed to all government-owned and -controlled corporations
(GOCCs) and government financial institutions (GFIs).
As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the Following the issuance of the Budget Call, the various departments
enactment of laws and executive acts.[61] EO No. 25, issued by President and agencies submit their respective Agency Budget Proposals to the
Manuel L. Quezon on April 25, 1936, created the Budget Commission DBM. To boost citizen participation, the current administration has
to serve as the agency that carried out the President’s responsibility of tasked the various departments and agencies to partner with civil society
preparing the budget.[62] CA No. 246, the first budget law, went into organizations and other citizen-stakeholders in the preparation of the
effect on January 1, 1938 and established the Philippine budget process. Agency Budget Proposals, which proposals are then presented before
The law also provided a line-item budget as the framework of the a technical panel of the DBM in scheduled budget hearings wherein the
Government’s budgeting system,[63] with emphasis on the observance of various departments and agencies are given the opportunity to defend
a “balanced budget” to tie up proposed expenditures with existing their budget proposals. DBM bureaus thereafter review the Agency
revenues. Budget Proposals and come up with recommendations for the
Executive Review Board, comprised by the DBM Secretary and the
CA No. 246 governed the budget process until the passage on June 4, DBM’s senior officials. The discussions of the Executive Review Board
1954 of Republic Act (RA) No. 992, whereby Congress introduced cover the prioritization of programs and their corresponding support
performance-budgeting to give importance to functions, projects and vis-à-vis the priority agenda of the National Government, and their
activities in terms of expected results.[64] RA No. 992 also enhanced the implementation.
role of the Budget Commission as the fiscal arm of the Government.[65]
The DBM next consolidates the recommended agency budgets into the
The 1973 Constitution and various presidential decrees directed a series National Expenditure Program (NEP) and a Budget of
of budgetary reforms that culminated in the enactment of PD No. 1177 Expenditures and Sources of Financing (BESF). The NEP
that President Marcos issued on July 30, 1977, and of PD No. 1405, provides the details of spending for each department and agency by
issued on June 11, 1978. The latter decree converted the Budget program, activity or project (PAP), and is submitted in the form of a
Commission into the Ministry of Budget, and gave its head the rank of a proposed GAA. The Details of Selected Programs and Projects is
Cabinet member. The Ministry of Budget was later renamed the Office the more detailed disaggregation of key PAPs in the NEP, especially
of Budget and Management (OBM) under EO No. 711. The OBM those in line with the National Government’s development plan. The
became the DBM pursuant to EO No. 292 effective on November 24, Staffing Summary provides the staffing complement of each
1989. department and agency, including the number of positions and amounts
allocated.
c) The Philippine Budget Cycle[66]
The NEP and BESF are thereafter presented by the DBM and the
Four phases comprise the Philippine budget process, specifically: (1) DBCC to the President and the Cabinet for further refinements or re-
Budget Preparation; (2) Budget Legislation; (3) Budget Execution; prioritization. Once the NEP and the BESF are approved by the
and (4) Accountability. Each phase is distinctly separate from the President and the Cabinet, the DBM prepares the budget documents
others but they overlap in the implementation of the budget during the for submission to Congress. The budget documents consist of: (1) the
budget year. President’s Budget Message, through which the President explains
the policy framework and budget priorities; (2) the BESF, mandated by
c.1. Budget Preparation[67] Section 22, Article VII of the Constitution,[68] which contains the
macroeconomic assumptions, public sector context, breakdown of the
The budget preparation phase is commenced through the issuance of a expenditures and funding sources for the fiscal year and the two
Budget Call by the DBM. The Budget Call contains budget previous years; and (3) the NEP.
parameters earlier set by the Development Budget Coordination
Committee (DBCC) as well as policy guidelines and procedures to aid Public or government expenditures are generally classified into two
government agencies in the preparation and submission of their budget categories, specifically: (1) capital expenditures or outlays; and (2)
proposals. The Budget Call is of two kinds, namely: (1) a National current operating expenditures. Capital expenditures are the
Budget Call, which is addressed to all agencies, including state expenses whose usefulness lasts for more than one year, and which add
to the assets of the Government, including investments in the capital of buildings and other structures, equipment, and other properties
government-owned or controlled corporations and their subsidiaries.[69] recorded as fixed assets);[81] (3) grants (i.e., voluntary contributions and
Current operating expenditures are the purchases of goods and aids given to the Government for its operation on specific purposes in
services in current consumption the benefit of which does not extend the form of money and/or materials, and do not require any monetary
beyond the fiscal year.[70] The two components of current expenditures commitment on the part of the recipient);[82] (4) extra-ordinary
are those for personal services (PS), and those for maintenance and income (i.e., repayment of loans and advances made by government
other operating expenses (MOOE). corporations and local governments and the receipts and shares in
income of the Banko Sentral ng Pilipinas, and other receipts);[83] and (5)
Public expenditures are also broadly grouped according to their functions public borrowings (i.e., proceeds of repayable obligations generally
into: (1) economic development expenditures (i.e., expenditures on with interest from domestic and foreign creditors of the Government in
agriculture and natural resources, transportation and communications, general, including the National Government and its political
commerce and industry, and other economic development efforts);[71] subdivisions).[84]
(2) social services or social development expenditures (i.e.,
government outlay on education, public health and medicare, labor and More specifically, public revenues are classified as follows:[85]
welfare and others);[72] (3) general government or general public
General Income Specific Income
services expenditures (i.e., expenditures for the general government,
1. Subsidy Income from 1. Income Taxes
legislative services, the administration of justice, and for pensions and
National Government 2. Property Taxes
gratuities); [73] (4) national defense expenditures (i.e., sub-divided into
2. Subsidy from Central 3. Taxes on Goods and
national security expenditures and expenditures for the maintenance of
Office Services
peace and order);[74] and (5) public debt.[75]
3. Subsidy from Regional 4. Taxes on International
Office/Staff Bureaus Trade and Transactions
Public expenditures may further be classified according to the nature of
4. Income from 5. Other Taxes Fines and
funds, i.e., general fund, special fund or bond fund.[76]
Government Services Penalties-Tax Revenue
5. Income from 6. Other Specific Income
On the other hand, public revenues complement public expenditures
Government Business
and cover all income or receipts of the government treasury used to
Operations
support government expenditures.[77]
6. Sales Revenue
7. Rent Income
Classical economist Adam Smith categorized public revenues based on
8. Insurance Income
two principal sources, stating: “The revenue which must defray…the
9. Dividend Income
necessary expenses of government may be drawn either, first from
10. Interest Income
some fund which peculiarly belongs to the sovereign or commonwealth,
11. Sale of Confiscated
and which is independent of the revenue of the people, or, secondly,
Goods and Properties
from the revenue of the people.”[78] Adam Smith’s classification relied
12. Foreign Exchange
on the two aspects of the nature of the State: first, the State as a juristic
(FOREX) Gains
person with an artificial personality, and, second, the State as a
13. Miscellaneous Operating
sovereign or entity possessing supreme power. Under the first aspect,
and Service Income
the State could hold property and engage in trade, thereby deriving what
14. Fines and Penalties-
is called its quasi-private income or revenues, and which “peculiarly
Government Services
belonged to the sovereign.” Under the second aspect, the State could
and Business Operations
collect by imposing charges on the revenues of its subjects in the form
15. Income from Grants and
of taxes.[79]
Donations

In the Philippines, public revenues are generally derived from the


following sources, to wit: (1) tax revenues (i.e., compulsory
contributions to finance government activities);[80] (2) capital revenues
c.2. Budget Legislation[86]
(i.e., proceeds from sales of fixed capital assets or scrap thereof and
public domain, and gains on such sales like sale of public lands,
The Budget Legislation Phase covers the period commencing from following procedures, namely: (1) to issue the programs and guidelines
the time Congress receives the President’s Budget, which is inclusive for the release of funds; (2) to prepare an Allotment and Cash
of the NEP and the BESF, up to the President’s approval of the GAA. Release Program; (3) to release allotments; and (4) to issue
This phase is also known as the Budget Authorization Phase, and disbursement authorities.
involves the significant participation of the Legislative through its
deliberations. The implementation of the GAA is directed by the guidelines issued by
the DBM. Prior to this, the various departments and agencies are
Initially, the President’s Budget is assigned to the House of required to submit Budget Execution Documents (BED) to outline
Representatives’ Appropriations Committee on First Reading. The their plans and performance targets by laying down the physical and
Appropriations Committee and its various Sub-Committees schedule financial plan, the monthly cash program, the estimate of monthly
and conduct budget hearings to examine the PAPs of the departments income, and the list of obligations that are not yet due and
and agencies. Thereafter, the House of Representatives drafts the demandable.
General Appropriations Bill (GAB).[87]
Thereafter, the DBM prepares an Allotment Release Program (ARP)
The GAB is sponsored, presented and defended by the House of and a Cash Release Program (CRP). The ARP sets a limit for
Representatives’ Appropriations Committee and Sub-Committees in allotments issued in general and to a specific agency. The CRP fixes the
plenary session. As with other laws, the GAB is approved on Third monthly, quarterly and annual disbursement levels.
Reading before the House of Representatives’ version is transmitted to
the Senate.[88] Allotments, which authorize an agency to enter into obligations, are
issued by the DBM. Allotments are lesser in scope than
After transmission, the Senate conducts its own committee hearings on appropriations, in that the latter embrace the general legislative
the GAB. To expedite proceedings, the Senate may conduct its authority to spend. Allotments may be released in two forms –
committee hearings simultaneously with the House of Representatives’ through a comprehensive Agency Budget Matrix (ABM),[94] or,
deliberations. The Senate’s Finance Committee and its Sub- individually, by SARO.[95]
Committees may submit the proposed amendments to the GAB to the
plenary of the Senate only after the House of Representatives has Armed with either the ABM or the SARO, agencies become authorized
formally transmitted its version to the Senate. The Senate version of the to incur obligations[96] on behalf of the Government in order to
GAB is likewise approved on Third Reading.[89] implement their PAPs. Obligations may be incurred in various ways,
like hiring of personnel, entering into contracts for the supply of goods
The House of Representatives and the Senate then constitute a panel and services, and using utilities.
each to sit in the Bicameral Conference Committee for the purpose
of discussing and harmonizing the conflicting provisions of their In order to settle the obligations incurred by the agencies, the DBM
versions of the GAB. The “harmonized” version of the GAB is next issues a disbursement authority so that cash may be allocated in
presented to the President for approval.[90] The President reviews the payment of the obligations. A cash or disbursement authority that is
GAB, and prepares the Veto Message where budget items are periodically issued is referred to as a Notice of Cash Allocation
subjected to direct veto,[91] or are identified for conditional (NCA),[97] which issuance is based upon an agency’s submission of its
implementation. Monthly Cash Program and other required documents. The NCA
specifies the maximum amount of cash that can be withdrawn from a
If, by the end of any fiscal year, the Congress shall have failed to pass government servicing bank for the period indicated. Apart from the
the GAB for the ensuing fiscal year, the GAA for the preceding fiscal NCA, the DBM may issue a Non-Cash Availment Authority
year shall be deemed re-enacted and shall remain in force and effect (NCAA) to authorize non-cash disbursements, or a Cash
until the GAB is passed by the Congress.[92] Disbursement Ceiling (CDC) for departments with overseas
operations to allow the use of income collected by their foreign posts
c.3. Budget Execution[93] for their operating requirements.

With the GAA now in full force and effect, the next step is the Actual disbursement or spending of government funds terminates the
implementation of the budget. The Budget Execution Phase is Budget Execution Phase and is usually accomplished through the
primarily the function of the DBM, which is tasked to perform the Modified Disbursement Scheme under wehich disbursements
chargeable against the National Treasury are coursed through the way of accelerated spending.[106] The Administration would thereby
government servicing banks. accelerate government spending by: (1) streamlining the implementation
process through the clustering of infrastructure projects of the
c.4. Accountability[98] Department of Public Works and Highways (DPWH) and the
Department of Education (DepEd), and (2) frontloading PPP-related
Accountability is a significant phase of the budget cycle because it projects[107] due for implementation in the following year.[108]
ensures that the government funds have been effectively and efficiently
utilized to achieve the State’s socio-economic goals. It also allows the Did the stimulus package work?
DBM to assess the performance of agencies during the fiscal year for
the purpose of implementing reforms and establishing new policies. The March 2012 report of the World Bank,[109] released after the initial
implementation of the DAP, revealed that the DAP was partially
An agency’s accountability may be examined and evaluated through (1) successful. The disbursements under the DAP contributed 1.3
performance targets and outcomes; (2) budget accountability percentage points to GDP growth by the fourth quarter of 2011.[110]
reports; (3) review of agency performance; and (4) audit conducted The continued implementation of the DAP strengthened growth by
by the Commission on Audit (COA). 11.8% year on year while infrastructure spending rebounded from a
29% contraction to a 34% growth as of September 2013.[111]
2.
Nature of the DAP as a fiscal plan The DAP thus proved to be a demonstration that expenditure was a
policy instrument that the Government could use to direct the
a. DAP was a program designed to economies towards growth and development.[112] The Government, by
promote economic growth spending on public infrastructure, would signify its commitment of
ensuring profitability for prospective investors.[113] The PAPs funded
Policy is always a part of every budget and fiscal decision of any under the DAP were chosen for this reason based on their: (1)
Administration.[99] The national budget the Executive prepares and multiplier impact on the economy and infrastructure development; (2)
presents to Congress represents the Administration’s “blueprint for beneficial effect on the poor; and (3) translation into disbursements.[114]
public policy” and reflects the Government’s goals and strategies.[100] As
such, the national budget becomes a tangible representation of the b. History of the implementation of the DAP,
programs of the Government in monetary terms, specifying therein the and sources of funds under the DAP
PAPs and services for which specific amounts of public funds are
proposed and allocated.[101] Embodied in every national budget is How the Administration’s economic managers conceptualized and
government spending.[102] developed the DAP, and finally presented it to the President remains
unknown because the relevant documents appear to be scarce.
When he assumed office in the middle of 2010, President Aquino made
efficiency and transparency in government spending a significant focus The earliest available document relating to the genesis of the DAP was
of his Administration. Yet, although such focus resulted in an improved the memorandum of October 12, 2011 from Sec. Abad seeking the
fiscal deficit of 0.5% in the gross domestic product (GDP) from January approval of the President to implement the proposed DAP. The
to July of 2011, it also unfortunately decelerated government project memorandum, which contained a list of the funding sources for P72.11
implementation and payment schedules.[103] The World Bank observed billion and of the proposed priority projects to be funded,[115] reads:
that the Philippines’ economic growth could be reduced, and potential
growth could be weakened should the Government continue with its MEMORANDUM FOR THE PRESIDENT
underspending and fail to address the large deficiencies in
infrastructure.[104] The economic situation prevailing in the middle of xxxx
2011 thus paved the way for the development and implementation of
SUBJECT:FY 2011 PROPOSED DISBURSEMENT
the DAP as a stimulus package intended to fast-track public spending
ACCELERATION PROGRAM (PROJECTS AND
and to push economic growth by investing on high-impact budgetary
SOURCES OF FUNDS)
PAPs to be funded from the “savings” generated during the year as well
DATE: OCTOBER 12, 2011
as from unprogrammed funds.[105] In that respect, the DAP was the
product of “plain executive policy-making” to stimulate the economy by
projects
DPWH-3.981 Billion
Mr. President, this is to formally confirm your approval of the DA – 2.497 Billion
Disbursement Acceleration Program totaling P72.11 billion. We are DOT – 1.000 Billion
already working with all the agencies concerned for the immediate DepEd – 270 Million
execution of the projects therein.
TOTAL 72.110

A. Fund Sources for the Acceleration Program

Fund Sources Amount Description Action B. Projects in the Disbursement Acceleration Program
(In Requested (Descriptions of projects attached as Annex A)
million
GOCCs and GFIs
Php)

FY 2011 30,000 Unreleased Personnel Declare as savings Agency/Project Allotment

Unreleased Services (PS) and approve/ (SARO and NCA Release) (in Million Php)

Personal appropriations which authorize its use 1. LRTA: Rehabilitation of LRT 1 and 2 1,868
Services (PS) will lapse at the end of for the 2011
2. NHA: 11,050
appropriations FY 2011 but may be Disbursement
450
pooled as savings and Acceleration
a. Resettlement of North Triangle residents to
realigned for priority Program
Camarin A7 500
programs that require
immediate funding
b. Housing for BFP/BJMP 10,000
FY 2011 482 Unreleased
Unreleased appropriations (slow c. On-site development for families living along 100
appropriations moving projects and dangerous
programs for
discontinuance) d. Relocation sites for informal settlers along

FY 2010 12,336 Supported by the GFI Approve and Iloilo River and its tributaries

Unprogrammed Dividends authorize its use 3. PHIL. HEART CENTER: Upgrading of 357
Fund for the 2011 ageing physical plant and medical equipment
Disbursement
4. CREDIT INFO CORP: Establishment of 75
Acceleration
centralized credit information system
Program
5. PIDS: purchase of land to relocate the PIDS 100
FY 2010 21,544 Unreleased With prior office and building construction
Carryover appropriations (slow approval from the
6. HGC: Equity infusion for credit insurance and 400
Appropriation moving projects and President in
mortgage guaranty operations of HGC
programs for November 2010 to
discontinuance) and declare as savings 7. PHIC: Obligations incurred (premium subsidy 1,496
savings from Zero- and with authority for indigent families) in January-June 2010,
based Budgeting to use for priority booked for payment in Jul[y] – Dec 2010. The
Initiative projects delay in payment is due to the delay in the
certification of the LGU counterpart. Without it,
FY 2011 7,748 FY 2011 Agency
the NG is obliged to pay the full amount.
Budget items Budget items that can
for realignment be realigned within For information 8. Philpost: Purchase of foreclosed property. 644
the agency to fund Payment of Mandatory Obligations, (GSIS,
new fast disbursing PhilHealth, ECC), Franking Privilege
9. BSP: First equity infusion out of Php 40B 10,000 19. DOJ: Operating requirements
capitalization under the BSP Law of 50 investigation agents and 15
state attorneys 11 11
10. PCMC: Capital and Equipment Renovation 280
20. DOT: Preservation of the Cine
11. LCOP: 105
Corregidor Complex 25 25
35 21. OPAPP: Activities for Peace
a. Pediatric Pulmonary Program
70 Process (PAMANA- Project
details: budget breakdown,
b. Bio-regenerative Technology Program (Stem-
implementation plan, and
Cell Research – subject to legal review and
conditions on fund release attached
presentation)
as Annex B) 1,819 1,819
12. TIDCORP: NG Equity infusion 570 22. DOST 425 425
TOTAL 26,945
a. Establishment of National
Meterological and Climate Center
b. Enhancement of Doppler Radar 275 275
NGAs/LGUs Network for National Weather
Allotment Watch, Accurate Forecasting and 190 150
Cash
(SARO) Flood Early Warning
Agency/Project Requirement
(In Million 23. DOF-BOC: To settle the
(NCA)
Php) principal obligations with PDIC
13. DOF-BIR: NPSTAR consistent with the agreement with
centralization of data processing the CISS and SGS 2,800 2,800
and others (To be synchronized 24. OEO-FDCP: Establishment of
with GFMIS activities) 758 758 the National Film Archive and
14. COA: IT infrastructure local cinematheques, and other
program and hiring of additional local activities 20 20
litigational experts 144 144 25. DPWH: Various infrastructure
15. DND-PAF: On Base Housing projects 5,500 5,500
Facilities and Communication 26. DepEd/ERDT/DOST: Thin
Equipment 30 30 Client Cloud Computing Project 270 270
16. DA: 27. DOH: Hiring of nurses and
a. Irrigation, FMRs and Integrated midwives 294 294
Community-Based Multi-Species 28. TESDA: Training Program in
Hatchery and Aquasilvi Farming 2,959 2,223 partnership with BPO industry and
b. Mindanao Rural Development other sectors 1,100 1,100
Project 1,629 1,629 29. DILG: Performance Challenge
c. NIA Agno River Integrated 919 183 Fund (People Empowered
Irrigation Project 411 411 Community Driven Development
17. DAR: 1,293 with DSWD and NAPC) 250 50
1,293
30. ARMM: Comprehensive Peace
a. Agrarian Reform Communities 1,293
and Development Intervention 8,592 8,592
Project 2 132
31. DOTC-MRT: Purchase of
b. Landowners Compensation 5,432
additional MRT cars 4,500 -
18. DBM: Conduct of National
32. LGU Support Fund 6,500 6,500
Survey of Farmers/Fisherfolks/IPs 625 625
33. Various Other Local Projects 6,500 6,500
34. Development Assistance to the In addition, Mr. President, this measure will allow us to undertake
Province of Quezon 750 750 projects even if their implementation carries over to 2012 without

TOTAL 45,165 44,000 necessarily impacting on our budget deficit cap next year.

BACKGROUND

C. Summary 1.0 The DBM, during the course of performance reviews conducted on
the agencies’ operations, particularly on the implementation of their
Fund Sources Allotments Cash
projects/activities, including expenses incurred in undertaking the
Identified for for Release Requirements for
same, have identified savings out of the 2011 General
Approval Release in FY
Appropriations Act. Said savings correspond to completed or
(In Million 2011
discontinued projects under certain departments/agencies which
Php)
may be pooled, for the following:
Total 72,110 72,110 70,895
1.1 to provide for new activities which have not been anticipated
GOCCs 26,895 26,895
during preparation of the budget;
NGAs/LGUs 45,165 44,000
1.2 to augment additional requirements of on-going priority
projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g.,
For His Excellency’s Consideration PDAF, Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class
(Sgd.) FLORENCIO B. ABAD allocation as a result of on-going priority projects and
implementation of new activities
[ / ] APPROVED 2.0 x x x x
[ ] DISAPPROVED 2.1 x x x
2.2 x x x
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011 ON THE UTILIZATION OF POOLED SAVINGS
The memorandum of October 12, 2011 was followed by another
3.0 It may be recalled that the President approved our request for
memorandum for the President dated December 12, 2011[116] requesting
omnibus authority to pool savings/unutilized balances in FY 2010
omnibus authority to consolidate the savings and unutilized balances for
last November 25, 2010.
fiscal year 2011. Pertinent portions of the memorandum of December
4.0 It is understood that in the utilization of the pooled savings, the
12, 2011 read:
DBM shall secure the corresponding approval/confirmation of the
President. Furthermore, it is assured that the proposed realignments
MEMORANDUM FOR THE PRESIDENT
shall be within the authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that
xxxx
may be sourced from the said pooled appropriations in FY 2010
SUBJECT:Omnibus Authority to Consolidate Savings/Unutilized that will expire on December 31, 2011 and appropriations in FY
Balances and its Realignment 2011 that may be declared as savings to fund additional
DATE: December 12, 2011 expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is
proposed to be spent for the projects that we have identified to
be immediate actual disbursements considering that this same
This is to respectfully request for the grant of Omnibus Authority to fund source will expire on December 31, 2011.
consolidate savings/unutilized balances in FY 2011 corresponding to 5.2 With respect to the proposed expenditure items to be funded
completed or discontinued projects which may be pooled to fund from the FY 2011 Unreleased Appropriations, most of these are
additional projects or expenditures. the same projects for which the DBM is directed by the Office
of the President, thru the Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects SUBJECT: Adoption of Operational Efficiency Measure –
that have been chosen given their multiplier impact on economy and Withdrawal of Agencies’ Unobligated Allotments as
infrastructure development, their beneficial effect on the poor, and of June 30, 2012
their translation into disbursements. Please note that we have
classified the list of proposed projects as follows:
7.0 x x x

1.0 Rationale
FOR THE PRESIDENT’S APPROVAL
The DBM, as mandated by Executive Order (EO) No. 292
8.0 Foregoing considered, may we respectfully request for the (Administrative Code of 1987), periodically reviews and evaluates
President’s approval for the following: the departments/agencies’ efficiency and effectiveness in utilizing
8.1 Grant of omnibus authority to consolidate FY 2011 budgeted funds for the delivery of services and production of
savings/unutilized balances and its realignment; and goods, consistent with the government priorities.
8.2 The proposed additional projects identified for funding.
In the event that a measure is necessary to further improve the
For His Excellency’s consideration and approval. operational efficiency of the government, the President is
authorized to suspend or stop further use of funds allotted for
(Sgd.) any agency or expenditure authorized in the General
Appropriations Act. Withdrawal and pooling of unutilized
[ / ] APPROVED allotment releases can be effected by DBM based on authority of
[ ] DISAPPROVED the President, as mandated under Sections 38 and 39, Chapter 5,
Book VI of EO 292.
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011 For the first five months of 2012, the National Government has
not met its spending targets. In order to accelerate spending and
sustain the fiscal targets during the year, expenditure measures
Substantially identical requests for authority to pool savings and to fund
have to be implemented to optimize the utilization of available
proposed projects were contained in various other memoranda from
resources.
Sec. Abad dated June 25, 2012,[117] September 4, 2012,[118] December 19,
2012,[119] May 20, 2013,[120] and September 25, 2013.[121] The President
Departments/agencies have registered low spending levels, in
apparently approved all the requests, withholding approval only of the
terms of obligations and disbursements per initial review of their
proposed projects contained in the June 25, 2012 memorandum, as
2012 performance. To enhance agencies’ performance, the DBM
borne out by his marginal note therein to the effect that the proposed
conducts continuous consultation meetings and/or send call-up
projects should still be “subject to further discussions.”[122]
letters, requesting them to identify slow-moving
programs/projects and the factors/issues affecting their
In order to implement the June 25, 2012 memorandum, Sec. Abad
performance (both pertaining to internal systems and those which
issued NBC No. 541 (Adoption of Operational Efficiency Measure –
are outside the agencies’ spheres of control). Also, they are asked
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012),[123]
to formulate strategies and improvement plans for the rest of
reproduced herein as follows:
2012.
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012 Notwithstanding these initiatives, some departments/agencies
have continued to post low obligation levels as of end of first
TO : All Heads of Departments/Agencies/State Universities semester, thus resulting to substantial unobligated allotments.
and Colleges and other Offices of the National
Government, Budget and Planning Officers; Heads of In line with this, the President, per directive dated June 27, 2012

Accounting Units and All Others Concerned authorized the withdrawal of unobligated allotments of agencies
with low levels of obligations as of June 30, 2012, both for
continuing and current allotments. This measure will allow the
maximum utilization of available allotments to fund and Collective Negotiation Agreement incentive
undertake other priority expenditures of the national government. benefit;
2.0 Purpose  Savings from mandatory expenditures which
2.1 To provide the conditions and parameters on the withdrawal can be realigned only in the last quarter after
of unobligated allotments of agencies as of June 30, 2012 to taking into consideration the agency’s full year
fund priority and/or fast-moving programs/projects of the requirements, i.e., Petroleum, Oil and
national government; Lubricants, Water, Illumination, Power
2.2 To prescribe the reports and documents to be used as bases Services, Telephone, other Communication
on the withdrawal of said unobligated allotments; and Services and Rent.
2.3 To provide guidelines in the utilization or reallocation of the
withdrawn allotments.  4.2.3Foreign-Assisted Projects (loan proceeds and peso
3.0 Coverage counterpart);
3.1 These guidelines shall cover the withdrawal of unobligated 4.2.4Special Purpose Funds such as: E-Government Fund,
allotments as of June 30, 2012 of all national government International Commitments Fund, PAMANA, Priority
agencies (NGAs) charged against FY 2011 Continuing Development Assistance Fund, Calamity Fund,
Appropriation (R.A. No.10147) and FY 2012 Current Budgetary Support to GOCCs and Allocation to LGUs,
Appropriation (R.A. No. 10155), pertaining to: among others;
3.1.1Capital Outlays (CO); 4.2.5Quick Response Funds; and
3.1.2Maintenance and Other Operating Expenses (MOOE) 4.2.6Automatic Appropriations i.e., Retirement Life
related to the implementation of programs and projects, Insurance Premium and Special Accounts in the General
as well as capitalized MOOE; and Fund.
3.1.3Personal Services corresponding to unutilized pension 5.0 Guidelines
benefits declared as savings by the agencies concerned 5.1 National government agencies shall continue to undertake
based on their updated/validated list of pensioners. procurement activities notwithstanding the implementation
3.2 The withdrawal of unobligated allotments may cover the of the policy of withdrawal of unobligated allotments until
identified programs, projects and activities of the the end of the third quarter, FY 2012. Even without the
departments/agencies reflected in the DBM list shown as Annex allotments, the agency shall proceed in undertaking the
A or specific programs and projects as may be identified by the procurement processes (i.e., procurement planning up to the
agencies. conduct of bidding but short of awarding of contract)
4.0 Exemption pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and
These guidelines shall not apply to the following: DBM Circular Letter No. 2010-9.
4.1 NGAs 5.2 For the purpose of determining the amount of unobligated
4.1.1Constitutional Offices/Fiscal Autonomy Group, granted allotments that shall be withdrawn, all
fiscal autonomy under the Philippine Constitution; and departments/agencies/operating units (OUs) shall submit to
4.1.2State Universities and Colleges, adopting the Normative DBM not later than July 30, 2012, the following budget
Funding allocation scheme i.e., distribution of a accountability reports as of June 30, 2012;
predetermined budget ceiling.  Statement of Allotments, Obligations and Balances
4.2 Fund Sources (SAOB);
4.2.1Personal Services other than pension benefits;  Financial Report of Operations (FRO); and
4.2.2MOOE items earmarked for specific purposes or subject  Physical Report of Operations.
to realignment conditions per General Provisions of the
GAA: 5.3 In the absence of the June 30, 2012 reports cited under item
 Confidential and Intelligence Fund; 5.2 of this Circular, the agency’s latest report available shall
 Savings from Traveling, Communication, be used by DBM as basis for withdrawal of allotment. The
Transportation and Delivery, Repair and DBM shall compute/approximate the agency’s obligation
Maintenance, Supplies and Materials and level as of June 30 to derive its unobligated allotments as of
Utility which shall be used for the grant of same period. Example: If the March 31 SAOB or FRO
reflects actual obligations of P 800M then the June 30
obligation level shall approximate to P1,600 M (i.e., P800 M x of this Circular, shall be subject to approval of the President.
2 quarters). Based on the approval of the President, DBM shall issue the
5.4 All released allotments in FY 2011 charged against R.A. No. SARO to cover the approved priority expenditures subject to
10147 which remained unobligated as of June 30, 2012 shall submission by the agency/OU concerned of the SBR and
be immediately considered for withdrawal. This policy is supported with PFP and MCP.
based on the following considerations: 5.11It is understood that all releases to be made out of the
5.4.1The departments/agencies’ approved priority programs withdrawn allotments (both 2011 and 2012 unobligated
and projects are assumed to be implementation-ready allotments) shall be within the approved Expenditure
and doable during the given fiscal year; and Program level of the national government for the current
5.4.2The practice of having substantial carryover year. The SAROs to be issued shall properly disclose the
appropriations may imply that the agency has a slower- appropriation source of the release to determine the extent of
than-programmed implementation capacity or agency allotment validity, as follows:
tends to implement projects within a two-year  For charges under R.A. 10147 – allotments shall be
timeframe. valid up to December 31, 2012; and
5.5. Consistent with the President’s directive, the DBM shall,  For charges under R.A. 10155 – allotments shall be
based on evaluation of the reports cited above and results of valid up to December 31, 2013.
consultations with the departments/agencies, withdraw the
unobligated allotments as of June 30, 2012 through issuance 5.12Timely compliance with the submission of existing BARs and
of negative Special Allotment Release Orders (SAROs). other reportorial requirements is reiterated for monitoring
5.6 DBM shall prepare and submit to the President, a report on purposes.
the magnitude of withdrawn allotments. The report shall 6.0 Effectivity
highlight the agencies which failed to submit the June 30
reports required under this Circular. This circular shall take effect immediately.
5.7 The withdrawn allotments may be:
5.7.1Reissued for the original programs and projects of the (Sgd.) FLORENCIO B. ABAD
agencies/OUs concerned, from which the allotments Secretary
were withdrawn;
5.7.2Realigned to cover additional funding for other existing As can be seen, NBC No. 541 specified that the unobligated allotments
programs and projects of the agency/OU; or of all agencies and departments as of June 30, 2012 that were charged
5.7.3Used to augment existing programs and projects of any against the continuing appropriations for fiscal year 2011 and the 2012
agency and to fund priority programs and projects not GAA (R.A. No. 10155) were subject to withdrawal through the issuance
considered in the 2012 budget but expected to be of negative SAROs, but such allotments could be either: (1) reissued for
started or implemented during the current year. the original PAPs of the concerned agencies from which they were
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned withdrawn; or (2) realigned to cover additional funding for other
may submit to DBM a Special Budget Request (SBR), existing PAPs of the concerned agencies; or (3) used to augment
supported with the following: existing PAPs of any agency and to fund priority PAPs not considered
5.8.1Physical and Financial Plan (PFP); in the 2012 budget but expected to be started or implemented in 2012.
5.8.2Monthly Cash Program (MCP); and Financing the other priority PAPs was made subject to the approval of
5.8.3Proof that the project/activity has started the the President. Note here that NBC No. 541 used terminologies like
procurement processes i.e., Proof of Posting and/or “realignment” and “augmentation” in the application of the withdrawn
Advertisement of the Invitation to Bid. unobligated allotments.
5.9 The deadline for submission of request/s pertaining to these
categories shall be until the end of the third quarter i.e., Taken together, all the issuances showed how the DAP was to be
September 30, 2012. After said cut-off date, the withdrawn implemented and funded, that is — (1) by declaring “savings” coming
allotments shall be pooled and form part of the overall from the various departments and agencies derived from pooling
savings of the national government. unobligated allotments and withdrawing unreleased appropriations; (2)
5.10Utilization of the consolidated withdrawn allotments for releasing unprogrammed funds; and (3) applying the “savings” and
other priority programs and projects as cited under item 5.7.3
unprogrammed funds to augment existing PAPs or to support other defined ‘as nothing more than the legislative authorization prescribed by
priority PAPs. the Constitution that money may be paid out of the Treasury,’ while
appropriation made by law refers to ‘the act of the legislature setting
c. DAP was not an appropriation apart or assigning to a particular use a certain sum to be used in the
measure; hence, no appropriation payment of debt or dues from the State to its creditors.’”[126]
law was required to adopt or to
On the other hand, the President, in keeping with his duty to faithfully
implement it
execute the laws, had sufficient discretion during the execution of the
budget to adapt the budget to changes in the country’s economic
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress
situation.[127] He could adopt a plan like the DAP for the purpose. He
did not enact a law to establish the DAP, or to authorize the
could pool the savings and identify the PAPs to be funded under the
disbursement and release of public funds to implement the DAP.
DAP. The pooling of savings pursuant to the DAP, and the
Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the
identification of the PAPs to be funded under the DAP did not involve
appropriations funded under the DAP were not included in the 2011,
appropriation in the strict sense because the money had been already set
2012 and 2013 GAAs. To petitioners IBP, Araullo, and COURAGE,
apart from the public treasury by Congress through the GAAs. In such
the DAP, being actually an appropriation that set aside public funds for
actions, the Executive did not usurp the power vested in Congress
public use, should require an enabling law for its validity. VACC
under Section 29(1), Article VI of the Constitution.
maintains that the DAP, because it involved huge allocations that were
separate and distinct from the GAAs, circumvented and duplicated the
3.
GAAs without congressional authorization and control.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
The petitioners contend in unison that based on how it was developed
were not savings, and the use of such
and implemented the DAP violated the mandate of Section 29(1),
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution that “[n]o money shall be paid out
Article VI of the 1987 Constitution.
of the Treasury except in pursuance of an appropriation made by law.”

The OSG posits, however, that no law was necessary for the adoption
Notwithstanding our appreciation of the DAP as a plan or strategy
and implementation of the DAP because of its being neither a fund nor
validly adopted by the Executive to ramp up spending to accelerate
an appropriation, but a program or an administrative system of
economic growth, the challenges posed by the petitioners constrain us
prioritizing spending; and that the adoption of the DAP was by virtue
to dissect the mechanics of the actual execution of the DAP. The
of the authority of the President as the Chief Executive to ensure that
management and utilization of the public wealth inevitably demands a
laws were faithfully executed.
most careful scrutiny of whether the Executive’s implementation of the
DAP was consistent with the Constitution, the relevant GAAs and
We agree with the OSG’s position.
other existing laws.
a. Although executive discretion
The DAP was a government policy or strategy designed to stimulate the
and flexibility are necessary in
economy through accelerated spending. In the context of the DAP’s
the execution of the budget, any
adoption and implementation being a function pertaining to the
transfer of appropriated funds
Executive as the main actor during the Budget Execution Stage under
should conform to Section 25(5),
its constitutional mandate to faithfully execute the laws, including the
Article VI of the Constitution
GAAs, Congress did not need to legislate to adopt or to implement the
DAP. Congress could appropriate but would have nothing more to do We begin this dissection by reiterating that Congress cannot anticipate
during the Budget Execution Stage. Indeed, appropriation was the act all issues and needs that may come into play once the budget reaches its
by which Congress “designates a particular fund, or sets apart a execution stage. Executive discretion is necessary at that stage to
specified portion of the public revenue or of the money in the public achieve a sound fiscal administration and assure effective budget
treasury, to be applied to some general object of governmental implementation. The heads of offices, particularly the President, require
expenditure, or to some individual purchase or expense.”[124]As pointed flexibility in their operations under performance budgeting to enable
out in Gonzales v. Raquiza:[125] ‘“In a strict sense, appropriation has been them to make whatever adjustments are needed to meet established
work goals under changing conditions.[128] In particular, the power to funds within their respective offices, the Constitution itself ensures the
transfer funds can give the President the flexibility to meet unforeseen fiscal autonomy of their offices, and at the same time maintains the
events that may otherwise impede the efficient implementation of the separation of powers among the three main branches of the
PAPs set by Congress in the GAA. Government. The Court has recognized this, and emphasized so in
Bengzon v. Drilon,[133] viz:
Congress has traditionally allowed much flexibility to the President in
allocating funds pursuant to the GAAs,[129] particularly when the funds The Judiciary, the Constitutional Commissions, and the Ombudsman
are grouped to form lump sum accounts.[130] It is assumed that the must have the independence and flexibility needed in the discharge of
agencies of the Government enjoy more flexibility when the GAAs their constitutional duties. The imposition of restrictions and
provide broader appropriation items.[131] This flexibility comes in the constraints on the manner the independent constitutional offices
form of policies that the Executive may adopt during the budget allocate and utilize the funds appropriated for their operations is
execution phase. The DAP – as a strategy to improve the country’s anathema to fiscal autonomy and violative not only of the express
economic position – was one policy that the President decided to carry mandate of the Constitution but especially as regards the Supreme
out in order to fulfill his mandate under the GAAs. Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power,[132] Prof. Louis Fisher,
In the case of the President, the power to transfer funds from one item
an American constitutional scholar whose specialties have included
to another within the Executive has not been the mere offshoot of
budget policy, has justified extending discretionary authority to the
established usage, but has emanated from law itself. It has existed since
Executive thusly:
the time of the American Governors-General.[134] Act No. 1902 (An Act
authorizing the Governor-General to direct any unexpended balances of
[T]he impulse to deny discretionary authority altogether should be
appropriations be returned to the general fund of the Insular Treasury and to transfer
resisted. There are many number of reasons why obligations and outlays
from the general fund moneys which have been returned thereto), passed on May
by administrators may have to differ from appropriations by legislators.
18, 1909 by the First Philippine Legislature,[135] was the first enabling
Appropriations are made many months, and sometimes years, in
law that granted statutory authority to the President to transfer funds.
advance of expenditures. Congress acts with imperfect knowledge in
The authority was without any limitation, for the Act explicitly
trying to legislate in fields that are highly technical and constantly
empowered the Governor-General to transfer any unexpended balance
undergoing change. New circumstances will develop to make obsolete
of appropriations for any bureau or office to another, and to spend such
and mistaken the decisions reached by Congress at the appropriation
balance as if it had originally been appropriated for that bureau or
stage. It is not practicable for Congress to adjust to each new
office.
development by passing separate supplemental appropriation bills.
Were Congress to control expenditures by confining
From 1916 until 1920, the appropriations laws set a cap on the amounts
administrators to narrow statutory details, it would perhaps
of funds that could be transferred, thereby limiting the power to
protect its power of the purse but it would not protect the purse
transfer funds. Only 10% of the amounts appropriated for contingent
itself. The realities and complexities of public policy require
or miscellaneous expenses could be transferred to a bureau or office,
executive discretion for the sound management of public funds.
and the transferred funds were to be used to cover deficiencies in the
appropriations also for miscellaneous expenses of said bureau or office.
xxxx

In 1921, the ceiling on the amounts of funds to be transferred from


x x x The expenditure process, by its very nature, requires substantial
items under miscellaneous expenses to any other item of a certain
discretion for administrators. They need to exercise judgment and take
bureau or office was removed.
responsibility for their actions, but those actions ought to be directed
toward executing congressional, not administrative policy. Let there be
During the Commonwealth period, the power of the President to
discretion, but channel it and use it to satisfy the programs and priorities
transfer funds continued to be governed by the GAAs despite the
established by Congress.
enactment of the Constitution in 1935. It is notable that the 1935
Constitution did not include a provision on the power to transfer funds.
In contrast, by allowing to the heads of offices some power to transfer At any rate, a shift in the extent of the President’s power to transfer
funds was again experienced during this era, with the President being
given more flexibility in implementing the budget. The GAAs provided On July 30, 1977, President Marcos issued PD No. 1177, providing in
that the power to transfer all or portions of the appropriations in the its Section 44 that:
Executive Department could be made in the “interest of the public, as
the President may determine.”[136] Section 44. Authority to Approve Fund Transfers. The President shall
have the authority to transfer any fund appropriated for the
In its time, the 1971 Constitutional Convention wanted to curtail the different departments, bureaus, offices and agencies of the
President’s seemingly unbounded discretion in transferring funds.[137] Its Executive Department which are included in the General
Committee on the Budget and Appropriation proposed to prohibit the Appropriations Act, to any program, project, or activity of any
transfer of funds among the separate branches of the Government and department, bureau or office included in the General
the independent constitutional bodies, but to allow instead their Appropriations Act or approved after its enactment.
respective heads to augment items of appropriations from savings in
their respective budgets under certain limitations.[138] The clear intention The President shall, likewise, have the authority to augment any
of the Convention was to further restrict, not to liberalize, the power to appropriation of the Executive Department in the General
transfer appropriations.[139] Thus, the Committee on the Budget and Appropriations Act, from savings in the appropriations of another
Appropriation initially considered setting stringent limitations on the department, bureau, office or agency within the Executive Branch,
power to augment, and suggested that the augmentation of an item of pursuant to the provisions of Article VIII, Section 16 (5) of the
appropriation could be made “by not more than ten percent if the Constitution.
original item of appropriation to be augmented does not exceed one
million pesos, or by not more than five percent if the original item of
In Demetria v. Alba, however, the Court struck down the first paragraph
appropriation to be augmented exceeds one million pesos.”[140] But two
of Section 44 for contravening Section 16(5) of the 1973 Constitution,
members of the Committee objected to the P1,000,000.00 threshold,
ruling:
saying that the amount was arbitrary and might not be reasonable in the
future. The Committee agreed to eliminate the P1,000,000.00 threshold,
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the
and settled on the ten percent limitation.[141]
privilege granted under said Section 16. It empowers the President to
indiscriminately transfer funds from one department, bureau, office or
In the end, the ten percent limitation was discarded during the plenary
agency of the Executive Department to any program, project or activity
of the Convention, which adopted the following final version under
of any department, bureau or office included in the General
Section 16, Article VIII of the 1973 Constitution, to wit:
Appropriations Act or approved after its enactment, without regard as
to whether or not the funds to be transferred are actually savings
(5) No law shall be passed authorizing any transfer of appropriations;
in the item from which the same are to be taken, or whether or not
however, the President, the Prime Minister, the Speaker, the Chief
the transfer is for the purpose of augmenting the item to which
Justice of the Supreme Court, and the heads of Constitutional
said transfer is to be made. It does not only completely disregard the
Commissions may by law be authorized to augment any item in the
standards set in the fundamental law, thereby amounting to an undue
general appropriations law for their respective offices from savings in
delegation of legislative powers, but likewise goes beyond the tenor
other items of their respective appropriations.
thereof. Indeed, such constitutional infirmities render the provision in
question null and void.[143]
The 1973 Constitution explicitly and categorically prohibited the
transfer of funds from one item to another, unless Congress enacted a
It is significant that Demetria was promulgated 25 days after the
law authorizing the President, the Prime Minister, the Speaker, the
ratification by the people of the 1987 Constitution, whose Section 25(5)
Chief Justice of the Supreme Court, and the heads of the Constitutional
of Article VI is identical to Section 16(5), Article VIII of the 1973
Commissions to transfer funds for the purpose of augmenting any item
Constitution, to wit:
from savings in another item in the GAA of their respective offices.
The leeway was limited to augmentation only, and was further
Section 25. x x x
constricted by the condition that the funds to be transferred should
come from savings from another item in the appropriation of the
xxxx
office.[142]
5) No law shall be passed authorizing any transfer of appropriations; otherwise within the scope and meaning of such general words.
however, the President, the President of the Senate, the Speaker of the Consequently, the existence of an exception in a statute clarifies the
House of Representatives, the Chief Justice of the Supreme Court, and intent that the statute shall apply to all cases not excepted. Exceptions
the heads of Constitutional Commissions may, by law, be authorized to are subject to the rule of strict construction; hence, any doubt will be
augment any item in the general appropriations law for their respective resolved in favor of the general provision and against the exception.
offices from savings in other items of their respective appropriations. Indeed, the liberal construction of a statute will seem to require in many
circumstances that the exception, by which the operation of the statute
xxxx is limited or abridged, should receive a restricted construction.

The foregoing history makes it evident that the Constitutional Accordingly, we should interpret Section 25(5), supra, in the context of
Commission included Section 25(5), supra, to keep a tight rein on the a limitation on the President’s discretion over the appropriations during
exercise of the power to transfer funds appropriated by Congress by the the Budget Execution Phase.
President and the other high officials of the Government named b. Requisites for the valid transfer
therein. The Court stated in Nazareth v. Villar:[144] of appropriated funds under Section
25(5), Article VI of the 1987
In the funding of current activities, projects, and programs, the general Constitution
rule should still be that the budgetary amount contained in the
The transfer of appropriated funds, to be valid under Section 25(5),
appropriations bill is the extent Congress will determine as sufficient for
supra, must be made upon a concurrence of the following requisites,
the budgetary allocation for the proponent agency. The only exception
namely:
is found in Section 25 (5), Article VI of the Constitution, by which the
President, the President of the Senate, the Speaker of the House of
(1) There is a law authorizing the President, the President of the Senate,
Representatives, the Chief Justice of the Supreme Court, and the heads
the Speaker of the House of Representatives, the Chief Justice of the
of Constitutional Commissions are authorized to transfer
Supreme Court, and the heads of the Constitutional Commissions to
appropriations to augment any item in the GAA for their respective
transfer funds within their respective offices;
offices from the savings in other items of their respective
appropriations. The plain language of the constitutional restriction
(2) The funds to be transferred are savings generated from the
leaves no room for the petitioner’s posture, which we should now
appropriations for their respective offices; and
dispose of as untenable.

(3) The purpose of the transfer is to augment an item in the general


It bears emphasizing that the exception in favor of the high officials
appropriations law for their respective offices.
named in Section 25(5), Article VI of the Constitution limiting the
b.1. First Requisite –GAAs of 2011
authority to transfer savings only to augment another item in the GAA
and 2012 lacked valid provisions to
is strictly but reasonably construed as exclusive. As the Court has
authorize transfers of funds under
expounded in Lokin, Jr. v. Commission on Elections:
the DAP; hence, transfers under the
When the statute itself enumerates the exceptions to the application of
DAP were unconstitutional
the general rule, the exceptions are strictly but reasonably construed.
The exceptions extend only as far as their language fairly warrants, and Section 25(5), supra, not being a self-executing provision of the
all doubts should be resolved in favor of the general provision rather Constitution, must have an implementing law for it to be operative.
than the exceptions. Where the general rule is established by a statute That law, generally, is the GAA of a given fiscal year. To comply with
with exceptions, none but the enacting authority can curtail the former. the first requisite, the GAAs should expressly authorize the transfer of
Not even the courts may add to the latter by implication, and it is a rule funds.
that an express exception excludes all others, although it is always
proper in determining the applicability of the rule to inquire whether, in Did the GAAs expressly authorize the transfer of funds?
a particular case, it accords with reason and justice.
In the 2011 GAA, the provision that gave the President and the other
The appropriate and natural office of the exception is to exempt high officials the authority to transfer funds was Section 59, as follows:
something from the scope of the general words of a statute, which is
Section 59. Use of Savings. The President of the Philippines, the Senate be met, namely: that the source of funds to be transferred were savings
President, the Speaker of the House of Representatives, the Chief from appropriations within the respective offices; and that the transfer
Justice of the Supreme Court, the Heads of Constitutional Commissions must be for the purpose of augmenting an item of appropriation within
enjoying fiscal autonomy, and the Ombudsman are hereby authorized the respective offices.
to augment any item in this Act from savings in other items of their b.2. Second Requisite – There were
respective appropriations. no savings from which funds could
be sourced for the DAP

In the 2012 GAA, the empowering provision was Section 53, to wit: Were the funds used in the DAP actually savings?

Section 53. Use of Savings. The President of the Philippines, the Senate The petitioners claim that the funds used in the DAP — the unreleased
President, the Speaker of the House of Representatives, the Chief appropriations and withdrawn unobligated allotments — were not
Justice of the Supreme Court, the Heads of Constitutional Commissions actual savings within the context of Section 25(5), supra, and the relevant
enjoying fiscal autonomy, and the Ombudsman are hereby authorized provisions of the GAAs. Belgica argues that “savings” should be
to augment any item in this Act from savings in other items of their understood to refer to the excess money after the items that needed to
respective appropriations. be funded have been funded, or those that needed to be paid have been
paid pursuant to the budget.[146] The petitioners posit that there could
be savings only when the PAPs for which the funds had been
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited
appropriated were actually implemented and completed, or finally
by the DBM as justification for the use of savings under the DAP.[145]
discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds
A reading shows, however, that the aforequoted provisions of the
for “slow-moving” PAPs could not be considered as savings because
GAAs of 2011 and 2012 were textually unfaithful to the Constitution
such PAPs had not actually been abandoned or discontinued yet.[147]
for not carrying the phrase “for their respective offices” contained in Section
They stress that NBC No. 541, by allowing the withdrawn funds to be
25(5), supra. The impact of the phrase “for their respective offices” was to
reissued to the “original program or project from which it was
authorize only transfers of funds within their offices (i.e., in the case of
withdrawn,” conceded that the PAPs from which the supposed savings
the President, the transfer was to an item of appropriation within the
were taken had not been completed, abandoned or discontinued.[148]
Executive). The provisions carried a different phrase (“to augment any item
in this Act”), and the effect was that the 2011 and 2012 GAAs thereby
The OSG represents that “savings” were “appropriations balances,”
literally allowed the transfer of funds from savings to augment any item
being the difference between the appropriation authorized by Congress
in the GAAs even if the item belonged to an office outside the
and the actual amount allotted for the appropriation; that the definition
Executive. To that extent did the 2011 and 2012 GAAs contravene the
of “savings” in the GAAs set only the parameters for determining when
Constitution. At the very least, the aforequoted provisions cannot be
savings occurred; that it was still the President (as well as the other
used to claim authority to transfer appropriations from the Executive to
officers vested by the Constitution with the authority to augment) who
another branch, or to a constitutional commission.
ultimately determined when savings actually existed because savings
could be determined only during the stage of budget execution; that the
Apparently realizing the problem, Congress inserted the omitted phrase
President must be given a wide discretion to accomplish his tasks; and
in the counterpart provision in the 2013 GAA, to wit:
that the withdrawn unobligated allotments were savings inasmuch as
they were clearly “portions or balances of any programmed
Section 52. Use of Savings. The President of the Philippines, the Senate
appropriation…free from any obligation or encumbrances which are (i)
President, the Speaker of the House of Representatives, the Chief
still available after the completion or final discontinuance or
Justice of the Supreme Court, the Heads of Constitutional Commissions
abandonment of the work, activity or purpose for which the
enjoying fiscal autonomy, and the Ombudsman are hereby authorized
appropriation is authorized…”
to use savings in their respective appropriations to augment actual
deficiencies incurred for the current year in any item of their respective
We partially find for the petitioners.
appropriations.

In ascertaining the meaning of savings, certain principles should be


Even had a valid law authorizing the transfer of funds pursuant to
borne in mind. The first principle is that Congress wields the power of
Section 25(5), supra, existed, there still remained two other requisites to
the purse. Congress decides how the budget will be spent; what PAPs to appropriation being no longer existent.
fund; and the amounts of money to be spent for each PAP. The
second principle is that the Executive, as the department of the The phrase “free from any obligation or encumbrance” in the definition of
Government tasked to enforce the laws, is expected to faithfully execute savings in the GAAs conveyed the notion that the appropriation was at
the GAA and to spend the budget in accordance with the provisions of that stage when the appropriation was already obligated and t