Chapter II - Judicial Review

G.R. No.
147780 May 10, 2001
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,
vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.
----------------------------------------
G.R. No. 147781 May 10, 2001
MIRIAM DEFENSOR-SANTIAGO, petitioner,
vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.
----------------------------------------
G.R. No. 147799 May 10, 2001
RONALDO A. LUMBAO, petitioner,
vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA,

and P/SR. SUPT. REYNALDO BERROYA, respondents.
----------------------------------------
G.R. No. 147810 May 10, 2001
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES,
GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL
LEANDRO MENDOZA, respondents.
RESOLUTION
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and
attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of
rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed
Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National
Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were
thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a
semblance of legality to the arrests, the following four related petitions were filed before the Court –
(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent
application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by
Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus
and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with
prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary
restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction
with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and
(4) G. R. No. 147810 for certiorari and prohibition filed by the political partyLaban ng Demokratikong
Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-
Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact
and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the
declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been
rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is
being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has
issued a particular order to arrest specific persons in connection with the "rebellion." He states that
what is extant are general instructions to law enforcement officers and military agencies to implement
Proclamation No. 38. Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department and police authorities to obtain regular
warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means
that preliminary investigations will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p.
24)
With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons
suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances
so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state
of rebellion."
Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago
Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without
warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an
individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of
law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court,
where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to
determine whether or not he should remain under custody and correspondingly be charged in court.
Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities
within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer
could be held liable for delay in the delivery of detained persons. Should the detention be without legal
ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without
prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil
Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby
making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules
of Court).1âwphi1.nêt
Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the
petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao
pray that the "appropriate court before whom the informations against petitioners are filed be directed
to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally
resolved." This relief is clearly premature considering that as of this date, no complaints or charges have
been filed against any of the petitioners for any crime. And in the event that the same are later filed, this
Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that
time any arrest would have been in pursuant of a duly issued warrant.
As regards petitioners' prayer that the hold departure orders issued against them be declared null and
void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold
departure orders in their petition. They are not even expressing intention to leave the country in the
near future. The prayer to set aside the same must be made in proper proceedings initiated for that
purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance
of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve
petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains
speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in
matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a
particular act which is sought to be compelled must be clear and complete. Mandamus will not issue
unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the
present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being
arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will
not be arrested without a warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that
the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an
encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or
interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an
exception to the general rule on the allocation of the governmental powers.
We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he
President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion…" Thus, we held inIntegrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284,
August 15, 2000):
x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be
objectively established since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. x x x
(at pp.22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this
power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.
G.R. No. 147810
Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party
must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here,
petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is
a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest.
Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest
and detention for the crime of rebellion. Every action must be brought in the name of the party whose
legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming
that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state
of rebellion" and that said proclamation is invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this
Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the
Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780,
147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to,
together with their agents, representatives, and all persons acting for and in their behalf, are hereby
enjoined from arresting petitioners therein without the required judicial warrant for all acts committed
in relation to or in connection with the may 1, 2001 siege of Malacañang.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur.
Vitug, separate opinion.
Kapunan, dissenting opinion.
Pardo, join the dissent of J. Kapunan.
Sandoval-Gutierrez, dissenting opinion.
Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.
________________________________________
G.R. No. 147780 May 10, 2001
vs.
----------------------------------------
G.R. No. 147781 May 10, 2001
vs.
SEPARATE OPINION
VITUG, J.:
I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or
connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions
for being said to be moot and academic. The petitions have raised important constitutional issues that,
in my view, must likewise be fully addressed.
________________________________________
G.R. No. 147780 May 10, 2001
vs.
----------------------------------------
G.R. No. 147781 May 10, 2001
vs.
----------------------------------------
G.R. No. 147799 May 10, 2001
vs.

----------------------------------------
G.R. No. 147810 May 10, 2001
vs.
DISSENTING OPINION
KAPUNAN, J.:
The right against unreasonable searches and seizure has been characterized as belonging "in the catalog
of indispensable freedoms."
Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the
individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt
and worked among a people know that the human personality deteriorates and dignity and self-reliance
disappear where homes, persons and possessions are subject at any hour to unheralded search and
seizure by the police.1
Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray
Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court
against their impending warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng
Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely,
Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and
General Panfilo Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile.4 Former
Ambassador Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6 Senator Gregorio B. Honasan,7
and the Integrated Bar of the Philippines (IBP).8
Briefly, the order for the arrests of these political opposition leaders and police officers stems from the
following facts:
On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the
Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of
policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who
were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A
skirmish ensued between them and the police. The police had to employ batons and water hoses to
control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada
and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full
media coverage, their fingerprints were obtained and their mug shots taken.
Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for
the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including
petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies.
In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans memorial
Medical Center for a medical check-up. It was announced that from there, they would be transferred to
Fort Sto. Domingo in Sta. Rosa, Laguna.
In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacañang Palace. The
Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to
guard the premises of the presidential residence. The marchers were able to penetrate the barricades
put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacañan.
As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones
at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt.
At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-
Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila:
Presidential Proclamation No. 38
DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones
and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other
armed groups, having been agitated and incited and, acting upon the instigation and under the
command and direction of known and unknown leaders, have and continue to assault and attempt to
break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and
forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms
against the duly constituted Government for the purpose of removing from the allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police,
and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and
prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the
Revised Penal Code;
WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have
continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and
seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the
Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress
the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby
recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a
state of rebellion;
In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section 18, Article VII of
the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to
suppress and quell the rebellion.
City of Manila, May 1, 2001.
The President likewise issued General Order No. 1 which reads:
GENERAL ORDER NO. 1
DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE NATIONAL POLICE TO
SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones
and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other
armed groups, having been agitated and incited and, acting upon the instigation and under the
command and direction of known and unknown leaders, have and continue to assault and attempt to
break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and
forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up
arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and
the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly
and partially, of her powers and prerogatives which constitute the continuing crime of rebellion
punishable under Article 134 of the Revised Penal Code;
WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have
continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and
seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the
Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress
the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces
of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the
Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion.
I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine
National Police and the officers and men of the Armed Forces of the Philippines and the Philippine
National Police to immediately carry out the necessary and appropriate actions and measures to
suppress and quell the rebellion with due regard to constitutional rights.
City of Manila, May 1, 2001.
Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator
Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested
without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen.
Lacson were also ordered arrested but the authorities have so far failed to apprehend them.
Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was
ordered released by the Court on cash bond.
The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without
warrant, pursuant to a declaration of "state of rebellion" by the President of the above-mentioned
persons and unnamed other persons similarly situated suspected of having committed rebellion is
illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the
Constitution.
The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution
which reads:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases
of (1) lawless violence, (2) rebellion and (3) invasion.9 In the latter two cases, i.e., rebellion or invasion,
the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas
corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of
this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the
President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or
invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not
give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice
Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever
the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due
process,10 the rights to free speech and peaceful assembly to petition the government for redress of
grievances,11 and the right against unreasonable searches and seizures,12 among others.
In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that:
x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the
privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling
out power in a different category from the power to declare martial law and the power to suspend the
privilege of the writ ofhabeas corpus, otherwise, the framers of the Constitution would have simply
lumped together the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius.
xxx
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the "calling out" power because
it is considered as the lesser and more benign power compared to the power to suspend the privilege of
the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment
and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation
by Congress and, in appropriate cases, review by this Court.
On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons
without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the
citizens' civil liberties, the so-called "state of rebellion" partakes the nature of martial law without
declaring on its face, yet, if it is applied and administered by public authority with an evil eye so as to
practically make it unjust and oppressive, it is within the prohibition of the Constitution.14 In an ironic
sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an
unbailable offense places a heavier burden on the people's civil liberties than the suspension of the
privilege of the writ of habeas corpus the declaration of martial law because in the latter case, built-in
safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a
period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within
forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to
review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it
shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its
extension is subject to review by the Supreme Court in an appropriate proceeding.15
No right is more fundamental than the right to life and liberty. Without these rights, all other individual
rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, reads:
SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
And to assure the fullest protection of the right, more especially against government impairment,
Section 2 thereof provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her
direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only
authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion
or rebellion."
Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law
authorizes the President to order the arrest of any person. The only significant consequence of the
suspension of the writ ofhabeas corpus is to divest the courts of the power to issue the writ whereby the
detention of the person is put in issue. It does not by itself authorize the President to order the arrest of
a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications:
In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial
law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that
the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not
justify any deviation from the Constitutional proscription against unreasonable searches and seizures.
As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed
instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides:
SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
xxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights
that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after
determining "personally" the existence of "probable cause" after examination under oath or affirmation
of the complainant and the witnesses he may produce. Its requirements should, therefore, be
scrupulously met:
The right of a person to be secure against any unreasonable seizure of his body and any deprivation of
his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the
Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond
the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic
right so often violated and so deserving of full protection.16
A warrantless arrest may be justified only if the police officer had facts and circumstances before him
which, had they been before a judge, would constitute adequate basis for a finding of probable cause of
the commission of an offense and that the person arrested is probably guilty of committing the offense.
That is why the Rules of Criminal Procedure require that when arrested, the person "arrested has
committed, is actually committing, or is attempting to commit an offense" in the presence of the
arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer
making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has
committed it."
Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under
Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this Court held:
The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute direct assault against
the State and are in the nature of continuing crimes.18
Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually
committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so
long as the rebellion persists.
Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the
commission of the violent acts of petitioners therein, were upheld by the Court because at the time of
their respective arrests, they were members of organizations such as the Communist Party of the
Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups
under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to
committing the offense of subversion19 which justified their arrests without warrants.
In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the
"rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the
government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that
the persons arrested or to be arrested has committed, is actually committing or is attempting to commit
the offense of rebellion.20 In other words, there must be an overt act constitutive of rebellion taking
place in the presence of the arresting officer. In United States vs. Samonte,21 the term" in his [the
arresting officer's] presence" was defined thus:
An offense is said to be committed in the presence or within the view of an arresting officer or private
citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance
created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been
consummated, at the time the arrest is made.22
This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's
Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that
the sworn statements of the policemen who purportedly arrested him were hearsay.23 Senator Enrile
was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest
without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is
lawful when made after an offense has just been committed and the arresting officer or private person
has probable cause to believe based on personal knowledge of facts and circumstances that the person
arrested has committed the offense.
At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not
without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile,24 a case decided during the
Marcos martial law regime.25 It cannot apply when the country is supposed to be under the regime of
freedom and democracy. The separate opinions of the following Justices in the motion for
reconsideration of said case26 are apropos:
FERNAN C.J., concurring and dissenting:
Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular
provision of law had been violated by the person arrested. True it is that law enforcement agents and
even prosecutors are not all adept at the law. However, erroneous perception, not to mention
ineptitude among their ranks, especially if it would result in the violation of any right of a person, may
not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the
merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as
contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because
the law enforcers wrongly perceived his action.27 (Underscoring supplied)
GUTIERREZ, JR., J., concurring and dissenting opinion
Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their observations
regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to
give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition
are political offenses where the line between overt acts and simple advocacy or adherence to a belief is
extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may
be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal
conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant
of authority in the majorityopinion is too broad. If warrantless searches are to be validated, it should be
Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels
who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up
arms against the Government.
The belief of law enforcement authorities, no matter how well-grounded on past events, that the
petitioner would probably shoot other policemen whom he may meet does not validate warrantless
arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's
surfacing from underground, and ounce on him with no legal authority instead of securing warrants of
arrest for his apprehension.28 (Underscoring supplied)
CRUZ, J., concurring and dissenting:
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made
in the cases before us is a step back to that shameful past when individual rights were wantonly and
systematically violated by the Marcos dictatorship. It seem some of us have short memories of that
repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the
Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would
violate individual liberty in the dubious name of national security. Whatever their ideology and even if it
be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less
than any other person in this country. That is what democracy is all about.29 (Underscoring supplied)
FELICIANO, J., concurring and dissenting:
12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate
function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the
constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the
elements of the offense charged are shown to have been committed by the person arrested without
warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime,
begun or committed elsewhere, continued to be committed by the person arrested in the presence of
the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is
infinitely increased where the crime charged does not consist of unambiguous criminal acts with a
definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping
and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation
with or becoming a member of, a subversive association or organization. For in such cases, the overt
constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of
the aims or objectives of the organization involved. Note, for instance, the following acts which
constitute prima facie evidence of "membership in any subversive association:"
a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or
any other document of the organization;
b) Subjecting himself to the discipline of such or association or organization in any form whatsoever;
c) Giving financial contribution to such association or organization in dues, assessments, loans or in any
other forms;
xxx
f) Conferring with officers or other members of such association or organization in furtherance of any
plan or enterprise thereof;
xxx
g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the
objectives and purposes of such association or organization;
xxx
k) Participating in any way in the activities, planning action, objectives, or purposes of such association
or organization.
It may well be, as the majority implies, that the constitutional rule against warrantless arrests and
seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our
Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but
rather to protect the liberties of private individuals. Our police forces must simply learn to live with the
requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the
fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess
of zeal, the very freedoms which make our policy worth protecting and saving.30 (Underscoring
supplied)
It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the
present. If respondents have ample evidence against petitioners, then they should forthwith file the
necessary criminal complaints in order that the regular procedure can be followed and the warrants of
arrest issued by the courts in the normal course. When practicable, resort to the warrant process is
always to be preferred because "it interposes an orderly procedure involving 'judicial impartiality'
whereby a neutral and detached magistrate can make informed and deliberate determinations on the
issue of probable cause."31
The neutrality, detachment and independence that judges are supposed to possess is precisely the
reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants
of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers,
would make such branch the accused's adversary and accuser, his judge and jury.32
A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause.
The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which
must still judge for itself the existence of probable cause. Under Section 18, Article VII, the
determination of the existence of a state of rebellion for purposes of proclaiming martial law or the
suspension of the privilege of the writ of habeas corpus rests for which the President is granted ample,
though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a
purely legal question of which courts are the final arbiters.
Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of
rebellion" on May 7, 2001 does not stop the police from making warrantless arrests.33 If this is so, the
pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting
thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for
alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of
the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could
expand depending on the appreciation of the police. The coverage and duration of effectivity of the
orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the
people's Bill of Rights. It is of no small significance that four of he petitioners are opposition candidates
for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and
orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as
the right of he people to choose their officials, is violated.
In view of the transcendental importance and urgency of the issues raised in these cases affecting as
they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon
now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting
dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga
vs. Cruz Paño:34
The Court also has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection
given by constitutional guarantees.
Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for
relief. If we do not act promptly, justly and fearlessly, to whom will they turn to?
WHEREFORE, I vote as follows:
(1) Give DUE COURSE to and GRANT the petitions;
(2) Declare as NULL and VOID the orders of arrest issued against petitioners;
(3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and
in their behalf from effecting warrantless arrests against petitioners and all other persons similarly
situated on the basis of Proclamation No. 38 and General Order No. 1 of the President.
SO ORDERED.
Footnote
1 Dissention Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 (1949).
2 G.R. No. 147780, for Prohibition, Injunction, Mandamus and Habeas Corpus.
3 G.R. No. 147810, for Certiorari and Prohibition.
4 G.R. No. 147785, for Habeas Corpus.
5 G.R. No. 147787, for Habeas Corpus.
6 G.R. No. 147781, for Mandamus.
7 G.R. No. 147818, for Injunction.
8 G.R. No. 147819, for Certiorari and Mandamus.

9 Integrated Bar of the Philippines vs. Zamora, et al. G.R. No. 141284, August 15, 2000.
10 Constitution, Article III, Section 1.
13 G.R. No. 141284, supra.
14 See Yick Wo vs. Hopkins, 118 U.S. 356.
15 Id., at Article VII, Section 18.
16 People vs. Burgos, 144 SCRA 1, 14 (1986).
17 187 SCRA 311 (1990).
18 Id., at 318.
19 187 SCRA 311, 318, 321, 323-24. (1990).
20 Under Article 134 of the Revised Penal Code, these acts would involve rising publicly and taking up
arms against the Government: (1) to remove from the allegiance of the Government or its laws, the
entire, or a portion of Philippine territory, or any body of land, naval or other armed forces, or (2) to
deprive the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
21 16 Phil 516 (1910).
22 Id., at 519.
23 G.R. No. 147785.
24 121 SCRA 472 (1983).
25 See Note 396 in Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.
180.
26 Umil vs. Ramos, 202 SCRA 251 (1991).
27 Id., at 274.
28 Id., at 279.
29 Id., at 284.
30 Id., at 293-295.
31 LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549.
Citations omitted.
32 Presidential Anti-Dollar Salting Task Force vs. CA, 171 SCRA 348 (1989).
33 Manila Bulletin issue of May 8, 2001 under the heading "Warrantless arrest continue" by Rey G.
Panaligan:
Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion in Metro Manila does
not ban the police from making warrantless arrest of suspected leaders of the failed May 1 Malacañang
siege.
In a press briefing, Perez said, "we can make warrantless arrest because that is provided for in the Rules
of Court," citing Rule 113.
34 134 SCRA 438 (1985).
________________________________________
G.R. No. 147780 May 10, 2001
vs.
----------------------------------------
G.R. No. 147781 May 10, 2001
vs.
----------------------------------------
G.R. No. 147799 May 10, 2001
vs.
----------------------------------------
G.R. No. 147810 May 10, 2001
vs.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes raise
constitutional issues. If such powers are used arbitrarily and capriciously, they may degenerate into the
worst form of despotism.
It is on this premise that I express my dissent.
The chain of events which led to the present constitutional crisis are as follows:
On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further questions
on the legitimacy of Gloria Macapagal-Arroyo's presidency.1 In a unanimous decision, the Court
declared that Joseph Ejercito Estrada had effectively resigned his post and that Macapagal-Arroyo is the
legitimate President of the Philippines. Estrada was stripped of all his powers and presidential immunity
from suit.
Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed to his
residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil in
the vicinity swearing that no one can take away their "president."
Then the dreadful day for the Estrada loyalists came.
On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against Estrada, his
son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and
Delia Rajas.2Emotions ran high as an estimated 10,000 Estrada loyalists, ranging from tattooed
teenagers of Tondo to well-heeled Chinese, gathered in Estrada's neighborhood.3 Supporters turned
hysterical. Newspapers captured pictures of raging men and wailing women.4 When policemen came,
riots erupted. Police had to use their batons as well as water hoses to control the rock-throwing Estrada
loyalists.5
It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock in the
afternoon of the same day, Philippine National Police (PNP) Chief, Director General Leandro R. Mendoza,
with the aid of PNP's Special Action Force and reinforcements from the Philippine Army and Marines,
implemented the warrant of arrest against Estrada.6
Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the detention center
of the former Presidential Anti-Organized Task Force at Camp Crame. The shabby treatment, caught on
live TV cameras nationwide, had sparked off a wave of protest all over the country. Even international
news agencies like CNN and BBC were appalled over the manner of Estrada's arrest calling it "overkill."
In a taped message aired over radio and television, Estrada defended himself and said, "I followed the
rule of law to the letter. I asked our people now to tell the powers to respect our constitution and the
rule of law."
Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of them
massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They vowed not to leave
the place until Estrada is released. When asked how long they planned to stay, the protesters said,
"Kahit isang buwan, kahit isang taon.7
At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot squads dispersed them.
Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they joined forces with hundreds
more who came from North Greenhills.8 Hordes of Estrada loyalists began gathering at the historic
shrine.
On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from various
sectors, most of them obviously belonging to the "masses," brought with them placards and streamers
denouncing the manner of arrest done to the former president.9 In the afternoon, buses loaded with
loyalists from the nearby provinces arrived at the Edsa Shrine. One of their leaders said that the Estrada
supporters will stay at Edsa Shrine until the former president gets justice from the present
administration.10
An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to secure
the area.11On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red alert."12
Counter-intelligence agents checked on possible defectors from the military top officials. Several
senators were linked to an alleged junta plot.
During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd. Among
those who showed up at the rally were Senators Miriam Defensor-Santiago, Gregorio Honasan, Juan
Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General Panfilo Lacson and former
Ambassador Ernesto Maceda.13
On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force backed up
by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to counter any
attempt by Estrada loyalists to mount a coup. And to show that it meant business, the task force parked
two MG-520 attack helicopters armed to the teeth with rockets on the parade ground at Camp
Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and troops in camouflage
uniforms.14 Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra to
quell the indignant Estrada loyalists.15
On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their march to
Malacañang.16 Along the way, they overran the barricades set up by the members of the PNP Crowd
Dispersal Control Management.17
Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of Malacañang
chanting, dancing, singing and waving flags.18
At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers,
conducted dispersal operations. Some members of the dispersal team were unceasingly firing their high-
powered firearms in the air, while the police, armed with truncheons and shields, were slowly pushing
the protesters away from the gates of Malacañang. Television footages showed protesters hurling
stones and rocks on the advancing policemen, shouting invectives against them and attacking them with
clubs. They burned police cars, a motorcycle, three pick-ups owned by a television station, construction
equipment and a traffic police outpost along Mendiola Street.19 They also attacked Red Cross vans,
destroyed traffic lights, and vandalized standing structures. Policemen were seen clubbing protesters,
hurling back stones, throwing teargas under the fierce midday sun, and firing guns towards the sky.
National Security Adviser Roilo Golez said the Street had to be bleared of rioters at all costs because
"this is like an arrow, a dagger going all the way to (Malacañang) Gate 7."20
Before noontime of that same day, the Estrada loyalists were driven away.
The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a "state
of rebellion."
Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This is not an
ordinary demonstration."21 After the declaration, there were threats of arrests against those suspected
of instigating the march to Malacañang.
At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in
Dasmariñas Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine National
Police Intelligence Group.22 Thereafter, Berroya and his men proceeded to hunt re-electionist Senator
Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen.
Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and
Cesar Tanega of the People's Movement Against Poverty (PMAP).23 Justice Secretary Hernando Perez
said that he was "studying" the possibility of placing Senator Miriam Defensor – Santiago "under the
Witness protection program."
Director Victor Batac,24 former Chief of the PNP Directorate for Police Community Relations, and Senior
Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to
Berroya. Both denied having plotted the siege.
On May 2, 2001, former Ambassador Ernesto Maceda was arrested.
The above scenario presents three crucial queries: First, is President Macapagal-Arroyo's declaration of a
"state of rebellion" constitutional? Second, was the implementation of the warrantless arrests on the
basis of the declaration of a "state of rebellion" constitutional? And third, did the rallyists commit
rebellion at the vicinity of Malacañang Palace on May 1, 2001?
The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987
Constitution of the Philippines. The third query requires a factual analysis of the events which
culminated in the declaration of a state of rebellion, hence, an examination of Article 134 of the Revised
Penal Code is in order.
On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT THE STATE
OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in effect, has lifted the
previous Proclamation No. 38.
I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered moot
and academic with the lifting by the President of the declaration of a "state of rebellion".
I believe that such lifting should not render moot and academic the very serious and unprecedented
constitutional issues at hand, considering their grave implications involving the basic human rights and
civil liberties of our people. A resolution of these issues becomes all the more necessary since, as
reported in the papers, there are saturation drives (sonas) being conducted by the police wherein
individuals in Metro Manila are picked up without warrants of arrest.
Moreover, the acts sought to be declared illegal and unconstitutional are capable of being repeated by
the respondents. In Salva v. Makalintat (G.R. No. 132603, Sept. 18, 2000), this Court held that "courts
will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review' …"
I & II – President Macapagal-Arroyo's declaration of a "state of rebellion" and the implementation of the
warrantless arrests premised on the said declaration are unconstitutional.
Nowhere in the Constitution can be found a provision which grants upon the executive the power to
declare a "state of rebellion," much more, to exercise on the basis of such declaration the prerogatives
which a president may validly do under a state of martial law. President-Macapagal-Arroyo committed a
constitutional short cut. She disregarded the clear provisions of the Constitution which provide:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
judicially charged within three days, otherwise he shall be released."25
Obviously, the power of the President in cases when she assumed the existence of rebellion is properly
laid down by the Constitution. I see no reason or justification for the President's deviation from the
concise and plain provisions. To accept the theory that the President could disregard the applicable
statutes, particularly that which concerns arrests, searches and seizures, on the mere declaration of a
"state of rebellion" is in effect to place the Philippines under martial law without a declaration of the
executive to that effect and without observing the proper procedure. This should not be countenanced.
In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary
where the law has provided everything for any emergency or contingency. For even if it may be proven
beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded
again on the same pretext but for evil purposes. Even in time of emergency, government action may
vary in breath and intensity from more normal times, yet it need not be less constitutional.26
My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of fact,
the changes made by the 1986 Constitutional Commission on the martial law text of the Constitution
were to a large extent a reaction against the direction which the Supreme Court took during the regime
of President Marcos.27 Now, if this Court would take a liberal view, and consider that the declaration of
a "state of rebellion" carries with it the prerogatives given to the President during a "state of martial
law," then, I say, the Court is traversing a very dangerous path. It will open the way to those who, in the
end, would turn our democracy into a totalitarian rule. History must not be allowed to repeat itself. Any
act which gears towards possible dictatorship must be severed at its inception.
The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is
unconstitutional and contrary to existing laws. The Constitution provides that "the right of the people to
be secure in their persons, houses, papers and effects against unreasonable searches and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized."28 If a state of martial law
"does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians, where civil courts are able to function, nor automatically suspend the privilege of the
writ,"28(a) then it is with more reason, that a mere declaration of a state of rebellion could not bring
about the suspension of the operation of the Constitution or of the writ of habeas corpus.
Neither can we find the implementation of the warrantless arrests justified under the Revised Rules on
Criminal Procedure. Pertinent is Section 5, Rule 113, thus:
"Sec. 5. Arrest without warrant, when lawful. – A peace officer or a private person may, without a
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts and circumstances that the person to be arrested has committed it; and
x x x."
Petitioners cannot be considered "to have committed, is actually committing, or is attempting to

commit an offense" at the time they were hunted by Berroya for the implementation of the warrantless
arrests. None of them participated in the riot which took place in the vicinity of the Malacañang Palace.
Some of them were on their respective houses performing innocent acts such as watching television,
resting etc. The sure fact however is that they were not in the presence of Berroya. Clearly, he did not
see whether they had committed, were committing or were attempting to commit the crime of
rebellion. But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo's
declaration of a "state of rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel
may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex
gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said
declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist,
Justice Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look.
"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a
continuing offense, to justify the arrest without warrant of any person at any time as long as the
authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous
doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing
his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the
'continuing' offense of subversion. Libertarians were appalled when that doctrine was imposed during
the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my
colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold
the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no
less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be
argued that the military should be given every support in our fight against subversion, I maintain that
fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the
enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit
that our more important motivation should be what are we fighting for."
I need not belabor that at the time some of the suspected instigators were arrested, (the others are still
at-large), a long interval of time already passed and hence, it cannot be legally said that they had just
committed an offense. Neither can it be said that Berroya or any of his men had "personal knowledge of
facts or circumstances that the persons to be arrested have committed a crime." That would be far from
reality.
III – The acts of the rallyists at the vicinity of Malacañang Palace on May 1, 2001 do not constitute
rebellion.
Article 134 of the Revised Penal Code reads:
"ART. 134. Rebellion or insurrection – How committed. – The crime of rebellion or insurrection is
committed by rising publicly and taking arms against the Government for the purpose of removing from
the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part
thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives." (As amended by RA No. 6968,
O.G. 52, p. 9864, 1990)
From the foregoing provisions, the elements o the crime of rebellion may be deduced, thus: first, that
there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the
uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the
territory of the Philippines or any part thereof; or (2) anybody of land, naval or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or
prerogatives.30
Looking at the events on a magnified scale, I am convinced that the two elements of the crime of
rebellion are lacking.
First, there was no "taking of arms" against the government. To my mind, "taking arms" connotes the
multitude'sdeliberate and conscious resort to arms or weapons for the purpose of aiding them in
accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists pelted the policemen
with rocks and stones and attacked them with sticks and clubs, but such was merely a result of the
heightening tension between opposite camps during the period of dispersal. The stones, rocks, sticks,
clubs and other improvised weapons were not deliberately resorted to by the Estrada loyalists to further
any of the purposes of rebellion. They availed of them, at the precise moment of dispersal (this explains
why their weapons were those which could be easily gathered on the street) and only for the purpose of
stopping the policemen from dispersing them. In this age of modernity, one who intends to overthrow
the government will not only settle for stones, woods, rocks, sticks or clubs as means to disable the
government. It will be extremely pathetic and the result will only be in vain. Unlike a true rebellion
which is organized, what happened at the vicinity of Malacañang was merely a riot, a mob violence, or a
tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement of
men and a complex net of intrigues and plots.31 It must be distinguished from riot and offenses
connected with mob violence. In rebellion/insurrection, there is an organized and armed uprising
against authority.32
Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to the
government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part of land,
naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly or partially, of
any of their powers or prerogatives. I looked at the chronology of events, and one thing surfaced – the
Estrada loyalists mainly demanded that their beloved "president" should not be incarcerated. The crowd
at Edsa swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when they
followed Erap at Camp Crame, they were shouting "Edsa! Edsa!And they vowed not to leave until
Estrada is released."33
One must not be swayed by the theory of respondents that the purpose of those people who gathered
in Edsa and marched to Malacañang was to commit rebellion. For sure, there were a thousand and one
reasons why they proceeded to Edsa. In determining their purpose, one must trace the roots, - what
prompted them to go to Edsa? They were the Estrada loyalists who wanted him to be freed. If indeed
there were minorities who advocated another cause, the same should not be considered as the
prevailing one in the determination of what crime was committed. Facts should not be stretched just to
build a case of rebellion. This runs counter to the principle of due process.
As a final word, I subscribe to the principle that the rule of law implies the precept that similar cases be
treated similarly. Men can not regulate their actions by means of rule if this precept is not followed.
Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to overthrow the
government were uttered in all these occasions. Injuries were sustained, policemen were attacked,
standing structures were vandalized… in all these scenarios, one cannot be said to be extremely away
from the other. The only difference is that the first two succeeded, while the last failed. This should not
result to an unbridled or unlimited exercise of power by the duly constituted authorities. It is during
these trying times that fealty to the Constitution is strongly demanded from all, especially the
authorities concerned.1âwphi1.nêt
WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to enjoin the
respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799 without the
corresponding warrants.
SO ORDERED.1âwphi1.nêt
[G.R. No. 125532. July 10, 1998]
SECRETARY TEOFISTO GUINGONA, JR.; STATE PROSECUTORS

JUDE ROMANO, LEAH ARMAMENTO, MANUEL TORREVILLAS,
JOAQUIN ESCOVAR, MENRADO CORPUS; the NATIONAL
BUREAU OF INVESTIGATION; and POTENCIANO
ROQUE, petitioners, vs. COURT OF APPEALS and RODOLFO
PINEDA, respondents.
DECISION
PANGANIBAN, J.:
This case is an offshoot of the investigation conducted by the government in the last
quarter of 1995, which delved into the alleged participation of national and local officials
in jueteng and other forms of illegal gambling. Although the Court of Appeals upheld
the admission into the Witness Protection Program of Potenciano A. Roque, who
claimed personal knowledge of such gambling activities, the secretary of justice
nonetheless challenges the side opinion of the appellate court that the testimony of the
witness must, as a condition precedent to his admission into said Program, be shown to
be capable of substantial corroboration in its material points. The justice secretary
claims that such corroboration need not be demonstrated prior to or simultaneous with
the witness’ admission into the Program, as long as such requirement can be
demonstrated when he actually testifies in court. However, inasmuch as Roque has
already been admitted into the Program and has actually finished testifying, the issue
presented by petitioners has become moot. Thus, any judgment that this Court may
render on the instant petition would be merely an academic disquisition on a
hypothetical problem. Until it can be shown that an actual controversy exists, courts
have no jurisdiction to render a binding decision.
The Case
This is a petition for review on certiorari to partially set aside the June 28, 1996
Decision of the Court of Appeals,[1] which disposed as follows:[2]
“WHEREFORE, premises considered, the petition is hereby DISMISSED for want of

merit, and the injunction issued against respondent judges from hearing the criminal
actions against petitioner is hereby LIFTED.
SO ORDERED.”
The Court of Appeals upheld the justice secretary’s denial on January 11, 1996 of
private respondent’s “Petition for Reconsideration of Admittance of Potenciano A.
Roque to the Witness Protection Program.”
Although Respondent Court ruled in favor of the government, herein petitioners
nonetheless assail the following portion of the said Decision:
“x x x From the explicit terms of the statute, it is at once apparent that the presence of
such corroborative evidence is sine qua non to a witness’ admission into the
Program. Being in the nature of a condition precedent [to] his admission into the
Program, the existence of such corroborative evidence must be shown at the time his
application for admission is being evaluated.”
The Antecedent Facts
Petitioners relate the antecedent facts of this case as follows:[3]
“Sometime in the last quarter of 1995, the National Bureau of Investigation (NBI)
conducted an investigation on the alleged participation and involvement of national
and local government officials in “jueteng” and other forms of illegal gambling.
The case was also the subject of a legislative inquiry/investigation by both the Senate
and the House of Representatives.
In November 1995, one Potenciano Roque, claiming to be an eyewitness to the

networking of xxx national and local politicians and gambling lords, sought admission
into the Government’s “Witness Protection, Security and Benefit
Program.” Allegedly, he gained first-hand information in his capacity as Chairman of
the Task Force Anti-Gambling (TFAG) during the term of former President Corazon
C. Aquino until his resignation in 1989. He also revealed that he and members of his
family were in danger of being liquidated, facing as he did the formidable world of
corruption with a well-entrenched hold on Philippine social, political and economic
systems.
After a thorough evaluation of his qualifications, convinced of his compliance with

the requirements of Republic Act No. 6981, otherwise known as the “Witness
Protection, Security and Benefit Act,” the Department of Justice admitted Roque to
the program, providing him a monthly allowance, temporary shelter and personal and
security protection during witness duty.
On November 30, 1995, Roque executed a sworn statement before NBI Agents Sixto
M. Burgos, Jr. and Nelson M. Bartolome, alleging that during his stint as Chairman of
the Task Force Anti-Gambling (TFAG), several gambling lords, including private
respondent Rodolfo Pineda, and certain politicians offered him money and other
valuable considerations, which he accepted, upon his agreement to cease conducting
raids on their respective gambling operations (Annex “B”).
On the basis of Roque’s sworn statement, the sworn statement and supplemental
affidavit of one Angelito H. Sanchez, and the sworn statement of Gen. Lorenzo Mateo
(Annexes ‘C,’ ‘D’ and ‘E’), then NBI Director Mariano M. Mison forwarded the
result of their investigation on the ‘jueteng’ scam to the Department of Justice (DOJ),
recommending the filing of the following charges against Pineda and other persons x
x x.
xxx xxx xxx
The DOJ Task Force on Illegal Gambling (composed of the petitioner-prosecutors),

created by petitioner Secretary Teofisto Guingona on November 24, 1995 (Annex
‘F’), conducted a preliminary investigation of the case and subpoenaed all the
respondents in I.S. No. 95-774, therein requiring them to submit their counter-
affidavits by December 22, 1995.
On December 21, 1995, Roque executed a supplemental sworn statement relative to

I.S. No. 95-774, clarifying some of his statements in his first affidavit (Annex
‘G’). Consequently, the December 22, 1995 setting was cancelled and reset to
January 8, 1996 to give Pineda and other respondents time to refute the charges
contained in the supplemental sworn statement.
On January 5, 1996, Pineda filed a ‘Petition for Reconsideration of Admittance of

Potenciano A. Roque to the Witness Protection Program,’ which was denied by
petitioner Secretary in a letter-reply dated January 11, 1996 (Annexes ‘H’ and
‘I’). On January 23, 1996, Pineda filed a Petition for Certiorari, Prohibition and
Mandamus with Application for Temporary Restraining Order and Preliminary
Injunction with the respondent Court of Appeals.
xxx xxx xxx
In the meantime, petitioner-prosecutors proceeded with their preliminary

investigation, and on February 2, 1996, they issued a resolution finding probable
cause to charge private respondent Pineda with several offenses (Annex ‘K’). On
February 5, 1996, three (3) Informations for corruption of public officials were filed
against him in the Manila and Pasig City Trial Courts (Annexes ‘L,’ ‘M’ and ‘N’). He
was subsequently arraigned on February 28, 1996 in the Regional Trial Court, Branch
7 of the City of Manila presided by Judge Enrico Lanzanes, and on March 14, 1996 in
the Regional Trial Court, Branch 168, of Pasig City, presided by Judge Benjamin
Pelayo.
On March 19, 1996, the Court of Appeals came up with a writ of preliminary
injunction enjoining both trial courts from hearing the criminal actions in the
meantime.”
The Ruling of the Court of Appeals
In its Decision, Respondent Court addressed mainly the issue of whether the
secretary of justice acted in excess of his jurisdiction (a) in admitting Petitioner Roque
into the Program and (b) in excluding him from the Informations filed against private
respondent. Private respondent contended that Roque’s admission was illegal on two
grounds: first, his testimony could not be substantially corroborated in its material
points; and second, he appeared to be the most guilty or at least more guilty than
private respondent, insofar as the crimes charged in the Informations were concerned.
Respondent Court also ruled that RA 6981 contemplates two kinds of witnesses: (a)
a witness who has perceived or has knowledge of, or information on, the commission of
a crime under Section 3; and (b) a particeps criminis or a participant in the crime under
Section 10.
Based on his sworn statements, Roque participated in the commission of the crimes
imputed to private respondent (corruption of public officials) by accepting bribe
money. Necessarily, his admission to the Program fell under Section 10, which requires
that he should not appear to be the most guilty of the imputed crimes. Respondent
Court found that private respondent sought to bribe him several times to prevent him
from conducting raids on private respondent’s gambling operations. Such “passive
participation” in the crimes did not make him more guilty than private respondent.
On the first issue, Respondent Court initially ruled that, by express provision of
Sections 3 and 10, the requirement of corroboration is a condition precedent to
admission into the Program. A contrary interpretation would only sanction the
squandering of the various benefits of the Program on one who might later be adjudged
disqualified from admission for lack of evidence to corroborate his testimony.
However, in the same breath, Respondent Court upheld herein petitioners’
alternative position that substantial corroboration was nevertheless actually provided by
Angelito Sanchez’ and retired Gen. Lorenzo M. Mateo’s testimonies. Hence, it disposed
in favor of the government.
Subsequently, this petition was filed.[4]
The Issue
The lone issue raised by this petition is worded as follows:
“Whether or not a witness’ testimony requires prior or simultaneous corroboration at the time he
is admitted into the witness protection, security and benefit program.”[5]
As noted earlier, this petition is unusual and unique. Despite ruling in their favor,
Respondent Court is assailed by petitioners for opining that admission to the Program
requires prior or simultaneous corroboration of the material points in the witness’
testimony.
Respondent Court and private respondent are of the opinion that Sections 3 (b) &
10 (d) of RA 6981 expressly require that corroboration must already exist at the time of
the witness’ application as a prerequisite to admission into the Program. RA 6981
pertinently provides:
“Sec. 10. State Witness. Any person who has participated in the commission of a
crime and desires to be a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the Program
whenever the following are present:
xxx xxx xxx
(d) his testimony can be substantially corroborated on its material points;
xxx xxx x x x.”

On the other hand, petitioners contend that said provisions merely require that the
testimony of the state witness seeking admission into the Program “can be substantially
corroborated” or is “capable of corroboration.” So long as corroboration can be
obtained when he testifies in court, he satisfies the requirement that “his testimony can
be substantially corroborated on its material points.”
The Court’s Ruling
The petition must fail, because the facts and the issue raised by petitioners do not
warrant the exercise of judicial power.
No Actual Controversy
Without going into the merits of the case, the Court finds the petition fundamentally
defective. The Constitution provides that judicial power “includes the duty of the courts
of justice to settle actual controversies involving rights which are legally demandable
and enforceable.”[6] According to Fr. Joaquin Bernas, a noted constitutionalist, courts are
mandated to settle disputes between real conflicting parties through the application of
the law.[7] Judicial review, which is merely an aspect of judicial power, demands the
following: (1) there must be an actual case calling for the exercise of judicial power; (2)
the question must be ripe for adjudication;[8] and (3) the person challenging must have
“standing”; that is, he has personal and substantial interest in the case, such that he has
sustained or will sustain direct injury.[9]
The first requisite is that there must be before a court an actual case calling for the
exercise of judicial power. Courts have no authority to pass upon issues through
advisory opinions or to resolve hypothetical or feigned problems [10] or friendly suits
collusively arranged between parties without real adverse interests. [11] Courts do not sit
to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging.[12] As a condition precedent to the exercise of judicial power, an
actual controversy between litigants must first exist.[13]
An actual case or controversy exists when there is a conflict of legal rights or an
assertion of opposite legal claims, which can be resolved on the basis of existing law
and jurisprudence. A justiciable controversy is distinguished from a hypothetical or
abstract difference or dispute, in that the former involves a definite and concrete dispute
touching on the legal relations of parties having adverse legal interests. A justiciable
controversy admits of specific relief through a decree that is conclusive in character,
whereas an opinion only advises what the law would be upon a hypothetical state of
facts.[14]
Thus, no actual controversy was found in Abbas vs. Commission on
Elections[15] regarding the provision in the Organic Act, which mandates that should there
be any conflict between national law and Islamic Law, the Shari’ah courts should apply
the former. In that case, the petitioner maintained that since the Islamic Law (Shari’ah)
was derived from the Koran, which makes it part of divine law, the Shari’ah may not be
subjected to any “man-made” national law. This Court dismissed petitioner’s argument
because, as enshrined in the Constitution, judicial power includes the duty to settle
actual controversies involving rights which are legally demandable and enforceable. No
actual controversy between real litigants existed, because no conflicting claims involving
the application of national law were presented. This being so, the Supreme Court
refused to rule on a merely perceived potential conflict between the provisions of the
Muslim Code and those of the national law.
In contrast, the Court held in Sabello vs. Department of Education, Culture and
Sports[16] that there was a justiciable controversy where the issue involved was whether
petitioner -- after he was given an absolute pardon -- merited reappointment to the
position he had held prior to his conviction, that of Elementary Principal I. The Court
said that such dispute was not hypothetical or abstract, for there was a definite and
concrete controversy touching on the legal relations of parties and admitting of specific
relief through a court decree that was conclusive in character. That case did not call for
mere opinion or advice, but for affirmative relief.
Closely related to the requirement of an “actual case,” Bernas continues, is the
second requirement that the question is “ripe” for adjudication. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. Thus, in PACU vs. Secretary of Education,[17] the Court
declined to pass judgment on the question of the validity of Section 3 of Act No. 2706,
which provided that before a private school may be opened to the public, it must first
obtain a permit from the secretary of education, because all the petitioning schools had
permits to operate and were actually operating, and none of them claimed that the
secretary had threatened to revoke their permit.
In Tan vs. Macapagal,[18] the Court said that Petitioner Gonzales “had the good
sense to wait” until after the enactment of the statute [Rep. Act No. 4913 (1967)]
requiring the submission to the electorate of certain proposed amendments to the
Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)] before
he could file his suit. It was only when this condition was met that the matter became
ripe for adjudication; prior to that stage, the judiciary had to keep its hands off.
The doctrine of separation of powers calls for each branch of government to be left
alone to discharge its duties as it sees fit. Being one such branch, the judiciary, Justice
Laurel asserted, “will neither direct nor restrain executive [or legislative action] x x
x.”[19] The legislative and the executive branches are not allowed to seek its advice on
what to do or not to do; thus, judicial inquiry has to be postponed in the
meantime. Before a court may enter the picture, a prerequisite is that something has
been accomplished or performed by either branch. Then may it pass on the validity of
what has been done but, then again, only “when x x x properly challenged in an
appropriate legal proceeding.”[20]
In the case at bar, it is at once apparent that petitioners are not requesting that this
Court reverse the ruling of the appellate court and disallow the admission in evidence of
Respondent Roque’s testimony, inasmuch as the assailed Decision does not appear to
be in conflict with any of their present claims. Petitioners filed this suit out of fear that
the assailed Decision would frustrate the purpose of said law, which is to encourage
witnesses to come out and testify. But their apprehension is neither justified nor
exemplified by this particular case. A mere apprehension does not give rise to a
justiciable controversy.
After finding no grave abuse of discretion on the part of the government
prosecutors, Respondent Court allowed the admission of Roque into the Program. In
fact, Roque had already testified in court against the private respondent. Thus, the
propriety of Roque’s admission into the Program is already a moot and academic issue
that clearly does not warrant judicial review.
Manifestly, this petition involves neither any right that was violated nor any claims
that conflict. In fact, no affirmative relief is being sought in this case. The Court concurs
with the opinion of counsel for private respondent that this action is a “purely academic
exercise,” which has no relevance to the criminal cases against Respondent
Pineda. After the assailed Decision had been rendered, trial in those cases proceeded
in earnest, and Roque testified in all of them. Said counsel filed his Memorandum only
to satisfy his “academic interest on how the State machinery will deal with witnesses
who are admittedly guilty of the crimes but are discharged to testify against their co-
accused.”[21]
Petitioners failed not only to present an actual controversy, but also to show a case
ripe for adjudication. Hence, any resolution that this Court might make in this case
would constitute an attempt at abstraction that can only lead to barren legal dialectics
and sterile conclusions unrelated to actualities.[22]
An Executive Function
In the present petition, the government is in effect asking this Court to render an
advisory opinion on what the government prosecutors should do – when, how and
whom to grant or to deny admission into the Program. To accede to it is tantamount to
an incursion into the functions of the executive department. From their arguments
stated above, both sides have obviously missed this crucial point, which is succinctly
stated in Webb vs. De Leon:[23]
“It is urged that they [the provisions of RA 6918] constitute ‘xxx an intrusion into
judicial prerogative for it is only the court which has the power under the Rules on
Criminal Procedure to discharge an accused as a state witness.’ The argument is
based on Section 9, Rule 119 which gives the court the prerogative to approve the
discharge of an accused to be a state witness. Petitioner’s argument lacks appeal for it
lies on the faulty assumption that the decision whom to prosecute is a judicial
function, the sole prerogative of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion—the discretion of whether, what and
whom to charge, the exercise of which depends on a smorgasbord of factors which are
best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. 6981 vesting in the Department of Justice
the power to determine who can qualify as a witness in the program and who shall be
granted immunity from prosecution. Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision, the court is given the power to discharge a
state witness only because it has already acquired jurisdiction over the crime and the
accused. The discharge of an accused is part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. Moreover, the Rules of Court have never
been interpreted to be beyond change by legislation designed to improve the
administration of our justice system.” [Emphasis ours]
Simply stated, the decision on whether to prosecute and whom to indict is executive
in character. Only when an information, charging two or more persons with a certain
offense, has already been filed in court will Rule 119, Section 9 of the Rules of Court,
come into play, viz.:
“SEC. 9. Discharge of one of several defendants to be witness for the prosecution.—

When two or more persons are charged with the commission of a certain offense, the
competent court, at any time before they have entered upon their defense, may direct
one or more of them to be discharged with the latter’s consent that he or they may be
witnesses for the government when in the judgment of the court:
(a) There is absolute necessity for the testimony of the defendant whose discharge
is requested;
(b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said defendant;
(c) The testimony of said defendant can be substantially corroborated in its material
points;
(d) Said defendant does not appear to be the most guilty;
(e) Said defendant has not at any time been convicted of any offense involving
moral turpitude.”
In the present case, Roque was not one of those accused in the Informations filed by
the government prosecutors. Rule 119, Section 9, is therefore clearly not applicable.
A resort to the progenitors of RA 6981 will yield the same result. Although
Presidential Decree 1731 and National Emergency Memorandum Order No. 26 state
only when immunity from suit attaches to a witness, they do not specify who are
qualified for admission into the Program. PD 1731, otherwise known as a law
“Providing for Rewards and Incentives to Government Witnesses and Informants and
for Other Purposes” provides:
“SEC. 4. Any such informants or witnesses who shall testify, or provide vital
information, regarding the existence or activity of a group involved in the commission
of crimes against national security or public order, or of an organized/syndicated
crime or crime group, and/or the culpability of individual members thereof in
accordance with this Decree shall, upon recommendation of the state prosecutor,
fiscal or military lawyer, as approved by the Secretary of National Defense or the
Secretary of Justice, as the case may be, be immune from criminal prosecution for his
participation or involvement in any such criminal activity which is the subject of the
investigation or prosecution, in addition to the benefits under Sec. 2
hereof: Provided, that, immunity from criminal prosecution shall, in the case of a
witness offering to testify, attach only upon his actually testifying in court in
accordance with his undertaking as accepted by the state prosecutor, fiscal, or military
lawyer: Provided, further, that the following conditions are complied with:
xxx xxx xxx
c. That such testimony or information can be substantially corroborated in its material

points;
xxx xxx x x x.”

The same tenor was adopted in National Emergency Memorandum Order No. 26
signed by former President Corazon C. Aquino, Section 5(c) of which provides:
“c. Immunity from Criminal Prosecution.—This applies to the witness participation

or involvement in the criminal case in which his testimony is necessary and may be
availed of only upon his actually testifying in court in accordance with his
undertaking, and provided that:
xxx xxx xxx
(3) Such testimony or information can be substantially corroborated in its material

points;
xxx xxx x x x.”

One may validly infer from the foregoing that the government prosecutor is afforded
much leeway in choosing whom to admit into the Program. Such inference is in
harmony with the basic principle that this is an executive function.
RA 6981 is a much needed penal reform law that could help the government in
curbing crime by providing an antidote, as it were, to the usual reluctance of witnesses
to testify. The Department of Justice has clearly explained the rationale for said law: [24]
‘Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and
testify in the investigation/prosecution of criminal complaints/cases. Because of such
refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack
of evidence. For a more effective administration of criminal justice, there was a
necessity to pass a law protecting witnesses and granting them certain rights and
benefits to ensure their appearance in investigative bodies/courts.’
This Court should then leave to the executive branch the decision on how best to
administer the Witness Protection Program. Unless an actual controversy arises, we
should not jump the gun and unnecessarily intervene in this executive function.
Closer Scrutiny of the Assailed Decision

Finally, an accurate reading of the assailed Decision will further enlighten petitioners
as to its true message. Respondent Court did sustain Roque’s admission into the
Program -- even as it held that the first contention of petitioners was untenable -- based
on the latter’s alternative argument that Roque’s testimony was sufficiently corroborated
by that of General Mateo. While Respondent Court insisted that corroboration must
exist prior to or simultaneous with Roque’s admission into the Program, it sanctioned
subsequent compliance to cure this defect. The reason for this is found in the
penultimate paragraph of the Decision, in which Respondent Court categorically stated
that it found no manifest abuse of discretion in the petitioners’ action. There is no
quarrel with this point. Until a more opportune occasion involving a concrete violation of
RA 6981 arises, the Court has no jurisdiction to rule on the issue raised by petitioners.
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE,
JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO

A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-
CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength – the use of force – cannot make wrongs into rights. In this regard, the
courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials
of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me
by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,"
and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the democratic Philippine
State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State – and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after
all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers,
leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a
plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to
the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’
counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement,
they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show
and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going
to the streets in protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San
Juan announced through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a
public statement: "All SAF units are under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of
the Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop
the soldiers because they too, were breaking the chain of command to join the forces foist to unseat
the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return
to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming year of accomplishing
its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule
that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing
rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He claimed that with the forces
of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the President’s ouster is
nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O.
No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its front organizations to join
5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President’s mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-
over of facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the protesters marching forward
to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal
of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf
S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." The PNP warned that it would take over any media organization that would
not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards – and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications’
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could
not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested
while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency
has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty
one (21) other members of the House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary
and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is
not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights
such as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the people’s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal
standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts
may exercise such power only when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is "definite and concrete, touching the legal relations of parties having
adverse legal interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor
General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or value.27 Generally,
courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over
the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the public’s interest, involving
as they do the people’s basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio
V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take
into account the Chief Justice’s very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is based on his own
right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for
a private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are
the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress’ taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law
in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens’ cases involving constitutional
issues. It held that "there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt.
The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this
very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases." 1avv phil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that
the President, during his tenure of office or actual incumbency,67 may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted
the focus to the system of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial Department, which in
this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency,
the President must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable only to his conscience,
the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is
mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The
latter part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the President’s decision is totally bereft of factual
basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold
her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may,
in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State…
It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation,
the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the people’s first intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick
M. Watkins saw "no reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to
the previous forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of
concentrating power – in a government where power has consciously been divided – to cope with…
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject
to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by constitutional means – i.e., he
must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency.98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated

unless it is necessary or even indispensable to the preservation of the State and its
constitutional order…
2) …the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…
4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should never
be permanent in character or effect…
7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which
it was instituted…
11) …the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, "the suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator"
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government
by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly procedure of law as
opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists –- from
Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson’s "balanced power structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the
same time, it obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its
face and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad law’s "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed
law may be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth doctrine.
For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best
position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For
this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.
President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente
V. Mendoza,114an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties.
It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him
to secure the people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot
be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling clause
of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall
be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province
of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos’
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense
to take over "the management, control and operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of its effort to contain, solve and end the present
national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency
powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected with public interest," it
refers to Congress, not the President. Now, whether or not the President may exercise such power
is dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII
refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception.127 Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting
laws been surrendered to another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act, are
called upon ‘to perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the President’s calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
"acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines." They are internal rules issued by the executive officer to his subordinates precisely
for the proper and efficientadministration of law. Such rules and regulations create no relation
except between the official who issues them and the official who receives them.139 They are based
on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution,
and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions – or threats of the use of force as the most
recent by the United States against Iraq – consists in the absence of an agreed definition of
terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to
mention only a few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United
States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way – because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international
affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become even
more serious in the present global power constellation: one superpower exercises the decisive role
in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of
the police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do
not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of
their authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses, papers
and effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even
if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right
of speech. As in the case of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their
right to peaceful assembly. They were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct.
In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as
to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacañang’s directive canceling all permits previously issued by local government
units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may deny the citizens’ right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a
person’s right is restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without warrant;second, the
police operatives seized several materials for publication; third, the search was conducted at about
1:00 o’ clock in the morning of February 25, 2006; fourth, the search was conducted in the absence
of any official of the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not follow the standards –
and the standards are if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend
a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is
threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless
the property is on the person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no more and no
less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of
its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 o’clock in the morning and without any search
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they
can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional
and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or
one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must
now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However,
PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees;
(2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as
Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of
G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights are
ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO

HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER
and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the
shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most
comprehensive of rights and the right most valued by civilized men." 1 Petitioner Ople prays that
we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional grounds,viz: one, it is a
usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our
citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated
by the petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as
follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with
the facility to conveniently transact business with basic service and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently

identify persons seeking basic services on social security and reduce, if not totally
eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
Sec. 1. Establishment of a National Compoterized Identification Reference
System. A decentralized Identification Reference System among the key basic
services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating

Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as

secretariat to the IACC and as such shall provide administrative and technical
support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)

generated by the NSO shall serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat shall coordinate with
the different Social Security and Services Agencies to establish the standards in
the use of Biometrics Technology and in computer application designs of their
respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press

Secretary, in coordination with the National Statistics Office, the GSIS and SSS
as lead agencies and other concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall
be sourced from the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President through the IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents,
then Executive Secretary Ruben Torres and the heads of the government agencies, who as
members of the Inter-Agency Coordinating Committee, are charged with the implementation of
A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF
THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR

THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN

PRIVACY. 3
We now resolve.
As is usual in constitutional litigation, respondents raise the threshold issues relating to the
standing to sue of the petitioner and the justiciability of the case at bar. More specifically,
respondents aver that petitioner has no legal interest to uphold and that the implementing rules of
A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished
member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit
raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. 4 As
taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also
impugn the legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No.
308 as invalid per se and as infirmed on its face. His action is not premature for the rules yet to
be promulgated cannot cure its fatal defects. Moreover, the respondents themselves have started
the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. 6 Respondent Executive Secretary Torres
has publicly announced that representatives from the GSIS and the SSS have completed the
guidelines for the national identification system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules
to pass judgment on its constitutionality. In this light, the dissenters insistence that we tighten the
rule on standing is not a commendable stance as its result would be to throttle an important
constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative
order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No.
308 establishes a system of identification that is all-encompassing in scope, affects the life and
liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to
privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of
Congress is understandable. The blurring of the demarcation line between the power of the
Legislature to make laws and the power of the Executive to execute laws will disturb their
delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is
"the authority, under the Constitution, to make laws, and to alter and repeal them." 8 The
Constitution, as the will of the people in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines. 9 The grant of legislative power to Congress
is broad, general and comprehensive. 10 The legislative body possesses plenary power for all
purposes of civil government. 11 Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. 12 In fine,
except as limited by the Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President executes the laws. 14 The
executive power is vested in the Presidents. 15 It is generally defined as the power to enforce and
administer the laws. 16 It is the power of carrying the laws into practical operation and enforcing
their due observance. 17
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of
his department. 18 He has control over the executive department, bureaus and offices. This means
that he has the authority to assume directly the functions of the executive department, bureau and
office or interfere with the discretion of its officials. 19 Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power over bureaus and offices under
his control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. 21 It enables the President to fix a uniform standard
of administrative efficiency and check the official conduct of his agents. 22 To this end, he can
issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:
Sec. 3. Administrative Orders. — Acts of the President which relate to particular

aspects of governmental operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which relates to specific

aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No. 308 implements the legislative
policy of the Administrative Code of 1987. The Code is a general law and "incorporates
in a unified document the major structural, functional and procedural principles of
governance." 25 and "embodies changes in administrative structure and procedures
designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with Sovereignty and
General Administration, Book II with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book IV on the Executive Branch,
Book V on Constitutional Commissions, Book VI on National Government Budgeting,
and Book VII on Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive, legislative and judicial
branches of government, the organization and administration of departments, bureaus and
offices under the executive branch, the organization and functions of the Constitutional
Commissions and other constitutional bodies, the rules on the national government
budget, as well as guideline for the exercise by administrative agencies of quasi-
legislative and quasi-judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on
private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code
of 1987. It establishes for the first time a National Computerized Identification Reference
System. Such a System requires a delicate adjustment of various contending state policies — the
primacy of national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the
A.O. No. 308 involves the all-important freedom of thought. As said administrative order
redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the
line that separates the administrative power of the President to make rules and the legislative
power of Congress, it ought to be evident that it deals with a subject that should be covered by
law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no
right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a
citizen cannot transact business with government agencies delivering basic services to the people
without the contemplated identification card. No citizen will refuse to get this identification card
for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a
citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality,
the contention that A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative
legislation and consequently erodes the plenary power of Congress to make laws. This is
contrary to the established approach defining the traditional limits of administrative legislation.
As well stated by Fisher: ". . . Many regulations however, bear directly on the public. It is here
that administrative legislation must he restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the authority to prescribe
rules and regulations is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the right to
privacy. The essence of privacy is the "right to be let alone." 29 In the 1965 case of Griswold v.
Connecticut, 30 the United States Supreme Court gave more substance to the right of privacy
when it ruled that the right has a constitutional foundation. It held that there is a right of privacy
which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments,31 viz:
Specific guarantees in the Bill of Rights have penumbras formed by emanations

from these guarantees that help give them life and substance . . . various
guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house" in
time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the ''right of the people to be secure in
their persons, houses and effects, against unreasonable searches and seizures."
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: "The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the
people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea
that governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a system of
limited government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as modern
society has developed. All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to maintain and support
this enclave of private life marks the difference between a democratic and a
totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution. 33 It is expressly recognized in section 3 (1)
of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the Bill of
Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall
the right to travel be impaired except in the interest of national security, public
safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons" and punishes as actionable torts several acts by a person of meddling and
prying into the privacy of another. 35 It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person, 36 and
recognizes the privacy of letters and other private communications. 37 The Revised Penal Code
makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial
secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property
Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of
certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No.
308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is
predicated on two considerations: (1) the need to provides our citizens and foreigners with the
facility to conveniently transact business with basic service and social security providers and
other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons seeking basic services. It is debatable whether
these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented
will put our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference
Number (PRN) as a "common reference number to establish a linkage among concerned
agencies" through the use of "Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts;
a mathematical analysis of biological data." 45 The term "biometrics" has evolved into a broad
category of technologies which provide precise confirmation of an individual's identity through
the use of the individual's own physiological and behavioral characteristics. 46 A physiological
characteristic is a relatively stable physical characteristic such as a fingerprint, retinal scan, hand
geometry or facial features. A behavioral characteristic is influenced by the individual's
personality and includes voice print, signature and keystroke. 47 Most biometric idenfication
systems use a card or personal identificatin number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or entering the PIN is the
legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where technology scans a

fingertip and turns the unique pattern therein into an individual number which is called a
biocrypt. The biocrypt is stored in computer data banks 49 and becomes a means of identifying an
individual using a service. This technology requires one's fingertip to be scanned every time
service or access is provided. 50 Another method is the retinal scan. Retinal scan technology
employs optical technology to map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a finger print. 51 Another biometric method is known as the
"artificial nose." This device chemically analyzes the unique combination of substances excreted
from the skin of people. 52 The latest on the list of biometric achievements is the thermogram.
Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat
distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some science fictions are
now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an
individual. It is a new science that uses various technologies in encoding any and all biological
characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not
state what specific biological characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage. Considering the banquest of options available
to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people
is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state
whether encoding of data is limited to biological information alone for identification purposes. In
fact, the Solicitor General claims that the adoption of the Identification Reference System will
contribute to the "generation of population data for development planning." 54 This is an
admission that the PRN will not be used solely for identification but the generation of other data
with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O.
No. 308 can give the government the roving authority to store and retrieve information for a
purpose other than the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as
the dissenters do. Pursuant to said administrative order, an individual must present his PRN
everytime he deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded — whether it be in the
computer or in the documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the
better the chance of building a huge formidable informatin base through the electronic linkage of
the files. 55 The data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a
temptation that may be too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the name, address and
other basic personal infomation about the individual. 57 Even that hospitable assumption will not
save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and
categorical terms how these information gathered shall he handled. It does not provide who shall
control and access the data, under what circumstances and for what purpose. These factors are
essential to safeguard the privacy and guaranty the integrity of the information. 58 Well to note,
the computer linkage gives other government agencies access to the information. Yet, there are
no controls to guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear of sanction or
penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored
within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which
will be gathered about our people will only be processed for unequivocally specified
purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the
individual's liberty of abode and travel by enabling authorities to track down his movement; it
may also enable unscrupulous persons to access confidential information and circumvent the
right against self-incrimination; it may pave the way for "fishing expeditions" by government
authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of
abuse and misuse of the PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or placed on his ID, much less
verify the correctness of the data encoded. 62They threaten the very abuses that the Bill of Rights
seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on

an individual and transmit it over a national network is one of the most graphic threats of the
computer revolution. 64 The computer is capable of producing a comprehensive dossier on
individuals out of information given at different times and for varied purposes. 65 It can continue
adding to the stored data and keeping the information up to date. Retrieval of stored date is
simple. When information of a privileged character finds its way into the computer, it can be
extracted together with other data on the subject. 66 Once extracted, the information is putty in
the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss
its danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance
such a laidback posture. The Court will not be true to its role as the ultimate guardian of the
people's liberty if it would not immediately smother the sparks that endanger their rights but
would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable expectation
of privacy with regard to the Natioal ID and the use of biometrics technology as it stands on
quicksand. The reasonableness of a person's expectation of privacy depends on a two-part test:
(1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable.67 The factual circumstances
of the case determines the reasonableness of the expectation. 68 However, other factors, such as
customs, physical surroundings and practices of a particular activity, may serve to create or
diminish this expectation. 69 The use of biometrics and computer technology in A.O. No. 308
does not assure the individual of a reasonable expectation of privacy. 70 As technology advances,
the level of reasonably expected privacy decreases. 71 The measure of protection granted by the
reasonable expectation diminishes as relevant technology becomes more widely accepted. 72 The
security of the computer data file depends not only on the physical inaccessibility of the file but
also on the advances in hardware and software computer technology. A.O. No. 308 is so widely
drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology
used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and
regulations merely implement the policy of the law or order. On its face, A.O. No. gives the
IACC virtually infettered discretion to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine. 73 Republic Act. No. 1161 prohibits public
disclosure of SSS employment records and reports. 74 These laws, however, apply to records and
data with the NSO and the SSS. It is not clear whether they may be applied to data with the other
government agencies forming part of the National ID System. The need to clarify the penal
aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy
by using the rational relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate population data for development planning. He
cocludes that these purposes justify the incursions into the right to privacy for the means are
rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of
R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We
declared that the law, in compelling a public officer to make an annual report disclosing his
assets and liabilities, his sources of income and expenses, did not infringe on the individual's
right to privacy. The law was enacted to promote morality in public administration by curtailing
and minimizing the opportunities for official corruption and maintaining a standard of honesty in
the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN the case
at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass
constitutional scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a
fundamental right is at stake, this court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of
regularity in the performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated, even when the
government does not act irrationally. They must satisfactorily show the presence of compelling
state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This
approach is demanded by the 1987 Constitution whose entire matrix is designed to protect
human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean
towards the stance that will not put in danger the rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the
United States Supreme Court was presented with the question of whether the State of New York
could keep a centralized computer record of the names and addresses of all persons who obtained
certain drugs pursuant to a doctor's prescription. The New York State Controlled Substance Act
of 1972 required physicians to identify parties obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names
and addresses of the patients can be recorded in a centralized computer file of the State
Department of Health. The plaintiffs, who were patients and doctors, claimed that some people
might decline necessary medication because of their fear that the computerized data may be
readily available and open to public disclosure; and that once disclosed, it may stigmatize them
as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone
of privacy, i.e., the individual interest in avoiding disclosure of personal matters, and the interest
in independence in making certain kinds of important decisions. The U.S. Supreme Court held
that while an individual's interest in avoiding disclosuer of personal matter is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish a constitutional violation.
The Court found that the statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs. The patient-identification requirement was a product of
an orderly and rational legislative decision made upon recommmendation by a specially
appointed commission which held extensive hearings on the matter. Moreover, the statute was
narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The
statute laid down the procedure and requirements for the gathering, storage and retrieval of the
informatin. It ebumerated who were authorized to access the data. It also prohibited public
disclosure of the data by imposing penalties for its violation. In view of these safeguards, the
infringement of the patients' right to privacy was justified by a valid exercise of police power. As
we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains
the use of computers to accumulate, store, process, retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve the efficiency which both government and
private industry seek. Many information system in different countries make use of the computer
to facilitate important social objective, such as better law enforcement, faster delivery of public
services, more efficient management of credit and insurance programs, improvement of
telecommunications and streamlining of financial activities. 81 Used wisely, data stored in the
computer could help good administration by making accurate and comprehensive information for
those who have to frame policy and make key decisions. 82 The benefits of the computer has
revolutionized information technology. It developed the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway where the individual, armed only with his
personal computer, may surf and search all kinds and classes of information from libraries and
databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements
that enhance public service and the common good. It merely requires that the law be narrowly
focused 85 and a compelling interest justify such intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual privacy will be subjected by
this Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic disctinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most threatened rights of man living in a mass society. The
threats emanate from various sources — governments, journalists, employers, social scientists,
etc. 88 In th case at bar, the threat comes from the executive branch of government which by
issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of basic services. Given the record-
keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308
gives the government the power to compile a devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be
that everyone will live burdened by an unerasable record of his past and his limitations. In a way,
the threat is that because of its record-keeping, the society will have lost its benign capacity to
forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling
the right to privacy as a fundamental right. We close with the statement that the right to privacy
was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null and void
for being unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan and Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.

Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's dissenting.
Separate Opinions
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics, man is a rational being, one who is
endowed with intellect which allows him to apply reasoned judgment to problems at hand; he
has the innate spiritual faculty which can tell, not only what is right but, as well, what is moral
and ethical. Because of his sensibilities, emotions and feelings, he likewise possesses a sense of
shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and
the outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears
and their extensions, whether form individuals, or much later, from authoritarian intrusions.
Piercing through the mists of time, we find the original Man and Woman defying the injunction
of God by eating of the forbidden fruit in the Garden. And when their eyes were "opened"
forthwith "they sewed fig leaves together, and made themselves aprons." 1 Down the corridors of
time, we find man fashioning "fig leaves" of sorts or setting up figurative walls, the better to
insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of
science, have made their own studies of this craving of the human spirit — psychological,
anthropological sociological and philosophical, with the legal finally giving its imprimatur by
elevating it to the status ofa right, specifically a private right.
Initially recognized as an aspect of tort law, it created giant waves in legal circles with the
publication in the Harvard Law Review 2 of the trail-blazing article, "The Right to Privacy," by
Samuel D. Warren and Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and
statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile
field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in
the Filipino language. Customs and practices, being what they have always been, Filipinos think
it perfectly natural and in good taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that what passes for
wholesome entertainment is actually an invasion into one's private life, leaving the interviewee
embarrassed and outraged by turns.
With the overarching influence of common law and the recent advent of the Information Age
with its high-tech devices, the right to privacy has expanded to embrace its public law aspect.
The Bill of Rights of our evolving Charters, a direct transplant from that of the United States,
contains in essence facets of the right to privacy which constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in making
inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that
it must, without delay, be "slain upon sight" before our society turns totalitarian with each of us,
a mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S.
Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of
Administrative Order No. 308 by the President of the Philippines and the dangers its
implementation could bring. I find it hard, nevertheless, to peremptorily assume at this time that
the administrative order will be misused and to thereby ignore the possible benefits that can be
derived from, or the merits of, a nationwide computerized identification reference system. The
great strides and swift advances in technology render it inescapable that one day we will, at all
events, have to face up with the reality of seeing extremely sophisticated methods of personal
identification and any attempt to stop the inevitable may either be short-lived or even futile. The
imperatives, I believe, would instead be to now install specific safeguards and control measures
that may be calculated best to ward-off probable ill effects of any such device. Here, it may be
apropos to recall the pronouncement of this Court in People vs. Nazario 1 that —
As a rule, a statute or [an] act may be said to be vague when it lacks

comprehensible standards that men "of common intelligence must necessarily
guess at its meaning and differ as to its application." It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle. 2
Administrative Order No. 308 appears to be so extensively drawn that could, indeed,
allow unbridled options to become available to its implementors beyond the reasonable
comfort of the citizens and of residents alike.
Prescinding from the foregoing, and most importantly to this instance, the subject covered by the
questioned administrative order can have far-reaching consequences that can tell on all
individuals, their liberty and privacy, that, to my mind, should make it indispensable and
appropriate to have the matter specifically addressed by the Congress of the Philippines, the
policy-making body of our government, to which the task should initially belong and to which
the authority to formulate and promulgate that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue
and impermissible exercise of legislative power by the Executive.
PANGANIBAN, J., separate opinion;
I concur only in the result and only on the ground that an executive issuance is not legally
sufficient to establish an all-encompassing computerized system of identification in the country.
The subject matter contained in AO 308 is beyond the powers of the President to regulate
without a legislative enactment.
I reserve judgmeht on the issue of wherher a national ID system is an infringement of the

constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a
law to this effect. Only then, and upon the filing of a proper petition, may the provisions of the
statute be scrutinized by the judiciary to determine their constitutional foundation. Until such
time, the issue is premature; and any decision thereon, speculative and academic. 1
Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on
the constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.
Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled
on these points. The voting is decisive only on the need for the appropriate legislation, and it is
only on this ground that the petition is granted by this Court.
KAPUNAN, J., dissenting opinion;

The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to
tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism.
Lost in the uproar, however, is the simple fact that there is nothing in the whole breadth and
lenght of Administrative Order No. 308 that suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308
the facility to conveniently transact business with basic services and social
security providers and other government instrumentalities;

identify persons seeking basic services and social security and reduce, if not
totally eradicate, fraudulent transactions and misrepresentations;
and social security providing agencies and other government instrumentalities is
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the

following:
Sec. 1 Establishment of a National Computerized Identification Reference System.

A decentralized Identification Reference System among the key basic services
and social security providers is hereby established.

Head Presidential Management Staff

Administrator, Government Service Insurance System
Administrator, Social Security System
Managing Director, National Computer Center


respective systems.

Secretary, in coordination with the National Statistics Offices, the GSIS and SSS
regular reports to the Office of the President, through the IACC, on the status of
Sec. 8 Effectivity. This Administartive Order shall take effect immediately.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED

ACT. THE ISSUACE OF A.O. NO. 308 BY THE PRESIDENT OF THE

RIGHTS ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference system to which the NSO, GSIS and SSS
are linked as lead members of the IACC is intended to establish uniform standards for ID cards
isssued by key government agencies (like the SSS) 1 for the "efficient identification of
persons." 2 Under the new system, only one reliable and tamper-proof I.D. need be presented by
the cardholder instead of several identification papers such as passports and driver's license, 3 to
able to transact with government agencies. The improved ID can be used to facilitate public
transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage

license, death certificate, NBI and police clearances, and business
permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
5. Application for work/employment
6. Pre-requisite for Voter's ID. 4
The card may also be used for private transactions such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones,

pagers, etc.
4. Purchase of stocks
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc. 5
The new identification system would tremendously improve and uplift public service in our
country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and
speed up legitimate transactions with government offices as well as with private and business
entities. Experience tells us of the constant delays and inconveniences the public has to suffer in
availing of basic public services and social security benefits because of inefficient and not too
reliable means of identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by
the SSS, a lead agency in the implementation of the said order, the following salient features are
mentioned:
1. A.O. 308 merely establishes the standards for I.D. cards issued by key
government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system neither does it require a national I.D.
card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service. Everyone has
the right to basic government services as long as he is qualified under existing
laws.
5. The LD. cannot and will not in any way be used to prevent one to travel.
6. There will be no discrimination Non-holders of the improved I.D. are still

entitled to the same services but will be subjected to the usual rigid identification
and verification beforehand.
The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative
powers in the form of executive orders, administrative orders, proclamations, memorandum
orders and circulars and general or special orders. 6 An administrative order, like the one under
which the new identification system is embodied, has its peculiar meaning under the 1987
Administrative Code:
aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
The National Computerized Identification Reference System was established pursuant to the
aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is
to provide the people with "the facility to conveniently transact business" with the various
government agencies providing basic services. Being the "administrative head," it is
unquestionably the responsibility of the President to find ways and means to improve the
government bureaucracy, and make it more professional, efficient and reliable, specially those
government agencies and instrumentalities which provide basic services and which the citizenry
constantly transact with, like the Government Service Insurance System (GSIS), Social Security
System (SSS) and National Statistics Office (NSO). The national computerized ID system is one
such advancement. To emphasize, the new identification reference system is created to
streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The
project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the
Chief Executive's administrative power under which, in order to successfully carry out his
administrative duties, he has been granted by law quasi-legislative powers, quoted above.
Understandably, strict adherence to the doctrine of separation of power spawns differences of

opinion. For we cannot divide the branches of government into water-tight compartment. Even if
such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work
Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the distinction

between legislation and administration with mathematical precision and as
dividing the branches of government into watertight compartments, we would
probably have to conclude that any exercise of lawmaking authority by an agency
is automatically invalid. Such a rigorous application of the constitutional doctrine
is neither desirable nor feasible; the only absolute separation that has ever been
possible was that in the theoretical writings of a Montesquieu, who looked across
at foggy England from his sunny Gascon vineyards and completely misconstrued
what he saw. 7
A mingling of powers among the three branches of government is not a novel concept. This
blending of powers has become necessary to properly address the complexities brought about by
a rapidly developing society and which the traditional branches of government have difficulty
coping with. 8
It has been said that:
The true meaning of the general doctrine of the separation of powers seems to be
that the whole power of one department should not be exercised by the same
hands which possess the whole power of either of the other department, and that
no one department ought to possess directly or indirectly an overruling influence
over the others. And it has been that this doctrine should be applied only to the
powers which because of their nature are assigned by the constitution itself to one
of the departments exclusively. Hence, it does not necessarily follow that an entire
and complete separation is either desirable of was ever intended, for such a
complete separation would be impracticable if not impossible; there may be-and
frequently are-areas in which executive, legislative, and judicial powers blend or
overlap; and many officers whose duties cannot be exclusively placed under any
one of these heads.
The courts have perceived the necessity of avoiding a narrow construction of a

state constitutional provision for the division of the powers of the government into
three distinct departments, for it is impractical to view the provision from the
standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects
the metaphysical abstractions and reverts instead to more pragmatic, flexible,
functional approach, giving recognition to the fact that then may be a certain
degree of blending or admixture of the three powers of the government.
Moreover, the doctrine of separation of powers has never been strictly or rigidly
applied, and indeed could not be, to all the ramifications of state or national
governments; government would prove abortive if it were attempted to follow the
policy of separation to the letter. 9
In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative
powers expressly granted to him by law and in accordance with his duty as administrative head.
Hence, the contention that the President usurped the legislative prerogatives of Congress has no
firm basis.
II
Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I
submit that it is premature for the Court to determine the constitutionality or unconstitutionality
of the National Computerized Identification Reference System.
Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide
constitutional issues, the following requisites must first be satisfied:
1) there must be an actual case or controversy involving a conflict of rights susceptible of

judicial determination;
2) the constitutional question must be raised by a proper party;
3) the constitutional question must be raised at the earliest opportunity; and
4) the resolution of the constitutional question must be necessary to the resolution of the case. 10
In this case, it is evident that the first element is missing. Judicial intervention calls for an actual
case or controversy which is defined as "an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory." 11 Justice Isagani A. Cruz further
expounds that "(a) justifiable controversy is thus distinguished from a difference or dispute of a
hypothetical or abstract character or from one that is academic or moot. The controversy must be
definite and concrete, touching the legal relations of parties having adverse legal interests. It
must be a real and substantial controversy admitting of special relief through a decree that is
conclusive in character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. . . ." 12 A.O. No. 308 does not create any concrete or substantial
controversy. It provides the general framework of the National Computerized Identification
Reference System and lays down the basic standards (efficiency, convenience and prevention of
fraudulent transactions) for its cretion. But as manifestly indicated in the subject order, it is the
Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and formulate
the guidelines and parameters for the use of Biometrics Technology and in computer application
designs that will and define give substance to the new system. 13 This petition is, thus, premature
considering that the IACC is still in the process of doing the leg work and has yet to codify and
formalize the details of the new system.
The majority opines that the petition is ripe for adjudication even without the promulgation of
the necessary guidelines in view of the fact that respondents have begun implementation of A.O.
No. 308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards. 14
I beg to disagree. It is not the new system itself that is intended to be implemented in the
invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is not and
cannot be used in the I.D. cards as no guidelines therefor have yet been laid down by the IACC.
Before the assailed system can be set up, it is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal contention for invalidating the new identification
reference system — that it is an impermissible encroachment on the constitutionally recognized
right to privacy — is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient
basis for a conclusion that the new system to be evolved violates the right to privacy. Said order
simply provides the system's general framework. Without the concomitant guidelines, which
would spell out in detail how this new identification system would work, the perceived violation
of the right to privacy amounts to nothing more than mere surmise and speculation.
What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of
autnomated matching of physiological or behavioral characteristics to identify a person that
would violated the citizen's constitutionally protected right to privacy.
The majority opinion has enumerated various forms and methods of Biometrics Technology
which if adopted in the National Computaized Identification Reference System would seriously
threaten the right to privacy. Among which are biocrypt retinal scan, artificial nose and
thermogram. The majority also points to certain alleged deficiencies of A O. No. 308. Thus:
1) A.O. No. 308 does not specify the particular Biometrics Technology that shall
be used for the new identification system.
2) The order dots not state whether encoding of data is limited to biological
information alone for identification purposes;
3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and
4) There are no controls to guard against leakage of information, thus heightening

the potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology and its
alleged, yet unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology that may pose danger to the right of privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to
provide citizens and foreign residents with the facility to conveniently transact business
with basic service and social security providers and other government instrumentalities; the
computerized system is intended to properly and efficiently identify persons seeking basic
services or social security and reduce, if not totally eradicate fraudulent transactions and
misreprentation; the national identification reference system is established among the key basic
services and social security providers; and finally, the IACC Secretariat shall coordinate with
different Social Security and Services Agencies to establish the standards in the use of
Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics
Technology that will be applied and the parameters for its use (as will be defined in the
guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-
stated standards. The fear entertained by the majority on the potential dangers of this new
technology is thus securedly allayed by the specific limitations set by the above-mentioned
standards. More than this, the right to privacy is well-esconced in and directly protected by
various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain
laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these
laws provide penalties for their violation in the form of imprisonment, fines, or damages. These
laws will serve as powerful deterrents not only in the establishment of any administrative rule
that will violate the constitutionally protected right to privacy, but also to would-be transgressors
of such right.
Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a
New York statute was challenged for requiring physicians to identify patients obtaining
prescription drugs of the statute's "Schedule II" category (a class of drugs having a potential for
abuse and a recognized medical use) so the names and addresses of the prescription drug patients
can be recorded in a centralized computer file maintained by the New York State Department of
Health. Some patients regularly receiving prescription for "Schedule II" drugs and doctors who
prescribed such drugs brought an action questioning the validity of the statute on the ground that
it violated the plaintiffs' constitutionally protected rights of privacy.
In a unanimous decision, the US Supreme Court sustained the validity of the statute on the
ground that the patient identification requirement is a reasonable exercise of the State's broad
police powers. The Court also held that there is no support in the record for an assumption that
the security provisions of the statute will be adiministered improperly. Finally, the Court opined
that the remote possibility that judicial supervision of the evidentiary use of particular items of
stored information will not provide adequate protection against unwarranted diclosures is not a
sufficient reason for invalidating the patient-identification program.
To be sure, there is always a possibility of an unwarranted disclosure of confidential matters

enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously
pointed out, we have a sufficient number of laws prohibiting and punishing any such
unwarranted disclosures. Anent this matter, the observation in Whalen vs. Roeis instructive:
. . . We are not unaware of the threat to privacy implicit in the accumulation of

vast amounts of personal information in computerized data banks or other
massive government files. The collection of taxes, the distribution of welfare and
social security benefits, the supervision of public health, the direction of our
Armed Forces and the enforcement of the criminal laws all require the orderly
preservation of great quantities of information, much of which is personal in
character and potentially embarrassing or harmful if disclosed. The right to collect
and use such data for public purposes is typically accompanied by a concomitant
statutory or regulatory duty to avoid unwarranted disclosures. . . . 16
The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and
economic experimentation lest they impede or obstruct the march of technology to improve
public services just on the basis of an unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words of Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave responsibility.

Denial of the right to experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the country. This
Court has the power to prevent an experiment. We may strike down the statute
which embodies it on the ground that, in our opinion, the measure is arbitary,
capricious or unreaonable. We have power to do this, because the due process
clause has been held by he Court applicable to matters of substantive law as well
as to matters of procedure. But in the exercise of this high power, we must be ever
on our guard, lest we erect our prejudices into legal principles. If we would guide
by the light of reason, we must let our minds be bold. 17
Again, the concerns of the majority are premature precisely because there are as yet no
guidelines that will direct the Court and serve as solid basis for determining the constitutionality
of the new identification system. The Court cannot and should not anticipate the constitutional
issues and rule on the basis of guesswok. The guidelines would, among others, determine the
particular biometrics method that would be used and the specific personal data that would be
collected provide the safeguard, (if any) and supply the details on how this new system in
supposed to work. The Court should not jump the gun on the Executive.
III
On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the
government agencies included in the new system to obtain funding form their respective budgets,
is unconstitutional for being an illegal transfer of appropriations.
It is not so. The budget for the national identification system cannot be deemed a transfer of
funds since the same is composed of and will be implemented by the member government
agancies. Morever, thses agencies particularly the GSIS and SSS have been issuing some form of
identification or membership card. The improved ID cards that will be issued under this new
system would just take place of the old identification cards and budget-wise, the funds that were
being used to manufacture the old ID cards, which are usually accounted for under the "Supplies
and Materials" item of the Government Accounting and Auditing Manual, could now be utilized
to fund the new cards. Hence, what is envisioned is not transfer of appropriations but a pooling
of funds and resources by the various government agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.
MENDOZA, J., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I
can see, all the Administrative Orders does is
• establish an Identification Reference System involving the following

service agencies of the government:
º Presidential Management Staff
º National Economic Developemnt Authority
º Department of the Interior and Local Government
º Department of Health
º Government Service Isurance System
º Social Security Office
º National Computer Center
• create a committee, composed of the heads of the agencies concerned, to

draft rules for the System;
• direct the use of the Population Reference Number (PRN) generated by

the National Census and Statistics Office as the common reference number
to link the participating agencies into an Identification Reference System,
and the adoption by the agencies of standards in the use of biometrics
technology and computer designs; and
• provide for the funding of the System from the budgets of the agencies
concerned.
Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and
every Filipino and resident will have a file with the government containing, at the very least,
his PRN and physiological biometrics such as, but not limited to, his facial features, hand
geometry, retinal or iris pattern, DNA pattern, fingerprints, voice characteristics, and signature
analysis."
In support of his contention, petitioner quotes the following publication surfed from the Internet:
The use of biometrics is the means by which an individual may be conclusively

identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry,
retinal and iris patterns. DNA, and fingerprints characteristics include voice
characteristics and signature analysis. 1
I do not see how from the bare provisions of the Order, the full text of which is set forth in the
majority opinion, petitioner and the majority can conclude that the Identification Reference
System establishes such comprehensive personal information dossiers that can destroy individual
privacy. So far as the Order provides, all that is contemplated is an identification system based
on data which the government agencies involved have already been requiring individuals making
use of their services to give.
For example, under C.A. No. 591, §2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register, 2which means that it keeps records of
information concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and
their annulments; (d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g)
naturalizations, and (h) changes of name. 3
Other statutes giving government agencies the power to require personal information may be
cited. R.A. No. 4136, §23 gives the Land Transportation Office the power to require applicants
for a driver's license to give information regarding the following: their full names, date of birth,
height, weight, sex, color of eyes, blood type, address, and right thumbprint; 4 while R.A. No.
8239, §5 gives the Department of Foreign Affairs the power to require passport applicants to
give information concerning their names, place of birth, date of birth, religious affiliation,
marital status, and citizenship.
Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover
their nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the
Identification Reference System "to prevent the shrinking of the right to privacy, once regarded
as "the most comprehensive of rights and the right most valued by civilized men."" 5 Indeed,
techniques such as fingerprinting or electronic photography in banks have become
commonplace. As has been observed, the teaching hospital has come to be accepted as offering
madical services that compensate for the loss of the isolation of the sickbed; the increased
capacity of applied sciences to utilize more and more kinds of data and the cosequent calls for
such data have weakened traditional resistance to disclosure. As the area of relevance, political
or scientific, expands, there is strong psychological pressure to yield some ground of privacy. 6
But this is a fact of life to which we must adjust, as long as the intrusion into the domain of
privacy is reasonable. InMorfe v. Mutuc, 7 this Court dealt the coup de grace to claims of
latitudinarian scope for the right of privacy by quoting the pungent remark of an acute observer
of the social scene, Carmen Guerrero-Nakpil:
Privacy? What's that? There is no precise word for it in Filipino, and as far as I
know any Filipino dialect and there is none because there is no need for it. The
concept and practice of privacy are missing from conventional Filipino life. The
Filipino believes that privacy is an unnecessary imposition, an eccentricity that is
barely pardonable or, at best, an esoteric Western afterthought smacking of legal
trickery. 8
Justice Romero herself says in her separate opinion that the word privacy is not even in
the lexicon of Filipinos.
As to whether the right of privacy is "the most valued right," we do well to remember the
encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ
of habeas corpus is "the most important human rights provision in the fundamental law,"" 9 For
Justice Cardozo, on the other hand, freedom of expression "is the matrix, the indispensable
condition of nearly every other form of freedom." 10
The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of
review for regulations alleged to infringe certain rights deemed to be "most valued by civilized
men.''
Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards
and well-defined standards to prevent unconstitutional invasions." 11 In the case of the
Identification Reference System, the purpose is to facilitate the transaction of business with
service agencies of the government and to prevent fraud and misrepresentation. The personal
identification of an individual can facilitate his treatment in any government hospital in case of
emergency. On the other hand, the delivery of material assistance, such as free medicines, can be
protected from fraud or misrepresentation as the absence of a data base makes it possible for
unscrupulous individuals to obtain assistance from more than one government agency.
Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of
privacy formed by emanations from the several constitutional rights cited by the majority. 12 The
question is whether it violates freedom of thought and of conscience guaranteed in the following
provisions of our Bill of Rights (Art. III):
Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or

of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Sec. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise enjoyment of religious
profession and worship, without discrimination or preference, shall be forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
More specifically, the question is whether the establishment of the Identification Reference
System will not result in the compilation of massive dossiers on individuals which, beyond their
use for identification, can become instruments of thought control. So far, the next of A.O. No.
308 affords no basis for believing that the data gathered can be used for such sinister purpose. As
already stated, nothing that is not already being required by the concerned agencies of those
making use of their servides is required by the Order in question. The Order simply organizes
service agencies of the government into a System for the purpose of facilitating the identification
of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308
state:

identify persons seeking basic services and social security, and reduce, if not
required to achieve such a system:
The application of biometric technology and the standardization of computer designs can
provide service agencies with precise identification of individuals, but what is wrong
with that?
Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of
the Philippines has issued in his capacity as administrative head. 13 It is not a statute. It confers
no right; it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name
indicates, a mere administrative order, the prescise nature of which is given in the following
excerpt from the decision in the early case of Olsen & Co. v. Herstein: 15
[It] is nothing more or less than a command from a superior to an inferior. It

creates no relation except between the official who issues it and the official who
receives it. Such orders, whether executive or departmental, have for their object
simply the efficient and economical administration of the affairs of the
department to which or in which they are issued in accordance with the law
governing the subject-matter. They are administrative in their nature and do not
pass beyond the limits of the department to which they are directed or in which
they are published, and, therefore, create no rights in third persons. They are
based on, and are the product of a relationship in which power is their source and
obedience their object. Disobedience to or deviation from such an order can be
punished only by the power which issued it: and, if that power fails to administer
the corrective, then the disobedience goes unpunished. In that relationship no
third person or official may intervene, not even the court. Such orders may be
very temporary, they being subject to instant revocation or modification by the
power which published them. Their very nature, as determined by the relationship
which prodecued them, demonstrates clearly the impossibility of any other person
enforcing them except the one who created them. An attempt on the part of the
courts to enforce such orders would result not only in confusion but, substantially,
in departmental anarchy also. 16
Third. There is no basis for believing that, beyond the identification of individuals, the System
will be used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure
of information gathered by the various agencies constituting the System. For example, as the
Solicitor General points out. C.A. No. 591. §4 penalizes the unauthorized use or disclosure of
data furnished the NSO with a fine of not more than P600.00 or imprisonment for not more than
six months or both.
At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be
used to curtail basic civil and political rights since, if at all, this can only be provided in the
implementing rules and regulations which have yet to be promulgated. We have already stated
that A.O. No. 308 is not a statute. Even in the case of statutes, however, where implementing
rules are necessary to put them into effect, it has been held that an attack on their
constitutionality would be premature. 17 As Edgar in King Lear puts it, "Ripeness is all." 18 For,
to borrow some more Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd. 19
That, more than any doctrine of constitutional law I can think of, succinctly expresses the
rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.
Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of
civilian political activity having "a potential for civil disorder" exercised "a present inhibiting
effect on [respondents'] full expression and utilization of their First Amendment rights." In
holding the case nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger.
said: 21
In recent years this Court has found in a number of cases that constitutional
violations may arise from the deterrent or ''chilling," effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights. [Citation of cases omitted] In none of these cases, however,
did the chilling effect arise merely from the individual's knowledge that a
governmental agency was engaged in certain activities or from the individual's
concomitant fear that, armed with the fruits of those activities, the agency might
in the future take some other and additional action detrimental to that individual.
Rather, in each of these cases, the challenged exercise of governmental power was
regulatory, proscriptive, or compulsory in nature, and the complainant was either
presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging. . . .
[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of
executive or legislative action he must show that he was sustained or is
immediately in danger of sustaining a direct injury as the result of that action. . . .
The respondents do not meet this test; [the] alleged "chilling" effect may perhaps
be seen as arising from respondents' perception of the system as inappropriate to
the Army's role under our form of government, or as arising from respondents'
beliefs that it is inherently dangerous for the military to be concerned with
activities in the civilian sector, or as arising from respondents' less generalized yet
speculative apprehensiveness that the Army may at some future date misuse the
information in some way that would cause direct harm to respondents. Allegations
of a subjective "chill" are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm: "the federal courts established
pursuant to Article III of the Constitution do not render advisory
opinions." United Public Workers v. Mitchell, 330 US 75, 89, 91 L Ed 754, 766,
67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any objection to
the identification Reference System on the ground that it violates freedom of thought is
premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear
that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action.
Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he
claims no personal injury suffered as a result of the Order in question. Instead, he says he is
bringing this action as taxpayer, Senator, and member of the Government Service Insurance
System.
Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does
not involve the exercise of the taxing or spending power of the government.
Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing
that the funds necessary for implementing the System shall be taken from the budgets of the
concerned agencies. A.O. No. 308 violates Art. VI, §25(5) which. provides:
No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
items of their respective appropriations.
But, as the Solicitor General states:
Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support
from the national government; and two, that the GAA is the only law whereby
public funds are appropriated. Both assumptions are wrong.
The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the
contributions of their members are sufficient to finance their expenses. One would
be hard pressed to find in the GAA an appropriation of funds to the SSS and the
GSIS.
Furthermore, their respective charters authorize the SSS and the GSIS to disburse
their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No.
1146 [1977], as amended, Sec. 29) without the need for a separate appropriation
from the Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308,
the President did not exercise the legislative power vested by the Constitution in Congress. He
acted on the basis of his own powers as administrative head of the government, as distinguished
from his capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the executive but
also the administrative head of the government. . . . Executive power refers to the
legal and political function of the President involving the exercise of discretion.
Administrative power, on the other hand, concerns itself with the work of
applying policies and enforcing orders as determined by proper governmental
organs. These two functions are often confused by the public: but they are distinct
from each other. The President as the executive authority has the duty of
supervising the enforcement of laws for the maintenance of general peace and
public order. As administrative head, his duty is to see that every government
office is managed and maintained properly by the persons in charge of it in
accordance with pertinent laws and regulations.
. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the
executive of the government, enabling him to comply more effectively with his
constitutional duty to enforce the laws. It enables him to fix a uniform standard of
a administrative eficiency and to check the official conduct of his agents. The
decisions of all the officers within his department are subject to his power of
revision, either on his own motion or on the appeal of some individual who might
deem himself aggrieved by the action of an administrative official. In case of
serious dereliction of duty, he may suspend or remove the officials concerned. 23
For the foregoing reasons, the petition should be DISMISSED.
# Separate Opinions
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics, man is a rational being, one who is
endowed with intellect which allows him to apply reasoned judgment to problems at hand; he
has the innate spiritual faculty which can tell, not only what is right but, as well, what is moral
and ethical. Because of his sensibilities, emotions and feelings, he likewise possesses a sense of
shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and
the outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears
and their extensions, whether form individuals, or much later, from authoritarian intrusions.
Piercing through the mists of time, we find the original Man and Woman defying the injunction
of God by eating of the forbidden fruit in the Garden. And when their eyes were "opened"
forthwith "they sewed fig leaves together, and made themselves aprons." 1 Down the corridors of
time, we find man fashioning "fig leaves" of sorts or setting up figurative walls, the better to
insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of
science, have made their own studies of this craving of the human spirit — psychological,
anthropological sociological and philosophical, with the legal finally giving its imprimatur by
elevating it to the status ofa right, specifically a private right.
Initially recognized as an aspect of tort law, it created giant waves in legal circles with the
publication in the Harvard Law Review 2 of the trail-blazing article, "The Right to Privacy," by
Samuel D. Warren and Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and
statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile
field for the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in
the Filipino language. Customs and practices, being what they have always been, Filipinos think
it perfectly natural and in good taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that what passes for
wholesome entertainment is actually an invasion into one's private life, leaving the interviewee
embarrassed and outraged by turns.
With the overarching influence of common law and the recent advent of the Information Age
with its high-tech devices, the right to privacy has expanded to embrace its public law aspect.
The Bill of Rights of our evolving Charters, a direct transplant from that of the United States,
contains in essence facets of the right to privacy which constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in making
inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that
it must, without delay, be "slain upon sight" before our society turns totalitarian with each of us,
a mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S.
Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of
Administrative Order No. 308 by the President of the Philippines and the dangers its
implementation could bring. I find it hard, nevertheless, to peremptorily assume at this time that
the administrative order will be misused and to thereby ignore the possible benefits that can be
derived from, or the merits of, a nationwide computerized identification reference system. The
great strides and swift advances in technology render it inescapable that one day we will, at all
events, have to face up with the reality of seeing extremely sophisticated methods of personal
identification and any attempt to stop the inevitable may either be short-lived or even futile. The
imperatives, I believe, would instead be to now install specific safeguards and control measures
that may be calculated best to ward-off probable ill effects of any such device. Here, it may be
apropos to recall the pronouncement of this Court in People vs. Nazario 1 that —
As a rule, a statute or [an] act may be said to be vague when it lacks

comprehensible standards that men "of common intelligence must necessarily
guess at its meaning and differ as to its application." It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle. 2
Administrative Order No. 308 appears to be so extensively drawn that could, indeed,
allow unbridled options to become available to its implementors beyond the reasonable
comfort of the citizens and of residents alike.
Prescinding from the foregoing, and most importantly to this instance, the subject covered by the
questioned administrative order can have far-reaching consequences that can tell on all
individuals, their liberty and privacy, that, to my mind, should make it indispensable and
appropriate to have the matter specifically addressed by the Congress of the Philippines, the
policy-making body of our government, to which the task should initially belong and to which
the authority to formulate and promulgate that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue
and impermissible exercise of legislative power by the Executive.
PANGANIBAN, J., separate opinion;
I concur only in the result and only on the ground that an executive issuance is not legally
sufficient to establish an all-encompassing computerized system of identification in the country.
The subject matter contained in AO 308 is beyond the powers of the President to regulate
without a legislative enactment.
I reserve judgmeht on the issue of wherher a national ID system is an infringement of the

constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a
law to this effect. Only then, and upon the filing of a proper petition, may the provisions of the
statute be scrutinized by the judiciary to determine their constitutional foundation. Until such
time, the issue is premature; and any decision thereon, speculative and academic. 1
Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on
the constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.
Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled
on these points. The voting is decisive only on the need for the appropriate legislation, and it is
only on this ground that the petition is granted by this Court.
KAPUNAN, J., dissenting opinion;
The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to
tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism.
Lost in the uproar, however, is the simple fact that there is nothing in the whole breadth and
lenght of Administrative Order No. 308 that suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308

identify persons seeking basic services and social security and reduce, if not
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the

following:
Sec. 1 Establishment of a National Computerized Identification Reference System.

A decentralized Identification Reference System among the key basic services
and social security providers is hereby established.
Head Presidential Management Staff
Administrator, Government Service Insurance System
Administrator, Social Security System
Managing Director, National Computer Center


respective systems.

Secretary, in coordination with the National Statistics Offices, the GSIS and SSS
regular reports to the Office of the President, through the IACC, on the status of
Sec. 8 Effectivity. This Administartive Order shall take effect immediately.

In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED

ACT. THE ISSUACE OF A.O. NO. 308 BY THE PRESIDENT OF THE


RIGHTS ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference system to which the NSO, GSIS and SSS
are linked as lead members of the IACC is intended to establish uniform standards for ID cards
isssued by key government agencies (like the SSS) 1 for the "efficient identification of
persons." 2 Under the new system, only one reliable and tamper-proof I.D. need be presented by
the cardholder instead of several identification papers such as passports and driver's license, 3 to
able to transact with government agencies. The improved ID can be used to facilitate public
transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage

license, death certificate, NBI and police clearances, and business
permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
6. Pre-requisite for Voter's ID. 4
The card may also be used for private transactions such as:
1. Opening of bank accounts

2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones,

pagers, etc.
4. Purchase of stocks
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc. 5
The new identification system would tremendously improve and uplift public service in our
country to the benefit of Filipino citizens and resident aliens. It would promote, facilitate and
speed up legitimate transactions with government offices as well as with private and business
entities. Experience tells us of the constant delays and inconveniences the public has to suffer in
availing of basic public services and social security benefits because of inefficient and not too
reliable means of identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by
the SSS, a lead agency in the implementation of the said order, the following salient features are
mentioned:
1. A.O. 308 merely establishes the standards for I.D. cards issued by key
government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system neither does it require a national I.D.
card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service. Everyone has
the right to basic government services as long as he is qualified under existing
laws.
5. The LD. cannot and will not in any way be used to prevent one to travel.
6. There will be no discrimination Non-holders of the improved I.D. are still

entitled to the same services but will be subjected to the usual rigid identification
and verification beforehand.
The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative
powers in the form of executive orders, administrative orders, proclamations, memorandum
orders and circulars and general or special orders. 6 An administrative order, like the one under
which the new identification system is embodied, has its peculiar meaning under the 1987
Administrative Code:

aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
The National Computerized Identification Reference System was established pursuant to the
aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is
to provide the people with "the facility to conveniently transact business" with the various
government agencies providing basic services. Being the "administrative head," it is
unquestionably the responsibility of the President to find ways and means to improve the
government bureaucracy, and make it more professional, efficient and reliable, specially those
government agencies and instrumentalities which provide basic services and which the citizenry
constantly transact with, like the Government Service Insurance System (GSIS), Social Security
System (SSS) and National Statistics Office (NSO). The national computerized ID system is one
such advancement. To emphasize, the new identification reference system is created to
streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The
project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the
Chief Executive's administrative power under which, in order to successfully carry out his
administrative duties, he has been granted by law quasi-legislative powers, quoted above.
Understandably, strict adherence to the doctrine of separation of power spawns differences of

opinion. For we cannot divide the branches of government into water-tight compartment. Even if
such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work
Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the distinction

between legislation and administration with mathematical precision and as
dividing the branches of government into watertight compartments, we would
probably have to conclude that any exercise of lawmaking authority by an agency
is automatically invalid. Such a rigorous application of the constitutional doctrine
is neither desirable nor feasible; the only absolute separation that has ever been
possible was that in the theoretical writings of a Montesquieu, who looked across
at foggy England from his sunny Gascon vineyards and completely misconstrued
what he saw. 7
A mingling of powers among the three branches of government is not a novel concept. This
blending of powers has become necessary to properly address the complexities brought about by
a rapidly developing society and which the traditional branches of government have difficulty
coping with. 8
It has been said that:
The true meaning of the general doctrine of the separation of powers seems to be
that the whole power of one department should not be exercised by the same
hands which possess the whole power of either of the other department, and that
no one department ought to possess directly or indirectly an overruling influence
over the others. And it has been that this doctrine should be applied only to the
powers which because of their nature are assigned by the constitution itself to one
of the departments exclusively. Hence, it does not necessarily follow that an entire
and complete separation is either desirable of was ever intended, for such a
complete separation would be impracticable if not impossible; there may be-and
frequently are-areas in which executive, legislative, and judicial powers blend or
overlap; and many officers whose duties cannot be exclusively placed under any
one of these heads.
The courts have perceived the necessity of avoiding a narrow construction of a

state constitutional provision for the division of the powers of the government into
three distinct departments, for it is impractical to view the provision from the
standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects
the metaphysical abstractions and reverts instead to more pragmatic, flexible,
functional approach, giving recognition to the fact that then may be a certain
degree of blending or admixture of the three powers of the government.
Moreover, the doctrine of separation of powers has never been strictly or rigidly
applied, and indeed could not be, to all the ramifications of state or national
governments; government would prove abortive if it were attempted to follow the
policy of separation to the letter. 9
In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative
powers expressly granted to him by law and in accordance with his duty as administrative head.
Hence, the contention that the President usurped the legislative prerogatives of Congress has no
firm basis.
II
Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I
submit that it is premature for the Court to determine the constitutionality or unconstitutionality
of the National Computerized Identification Reference System.
Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide
constitutional issues, the following requisites must first be satisfied:
1) there must be an actual case or controversy involving a conflict of rights susceptible of

judicial determination;
2) the constitutional question must be raised by a proper party;

3) the constitutional question must be raised at the earliest opportunity; and
4) the resolution of the constitutional question must be necessary to the resolution of the case. 10
In this case, it is evident that the first element is missing. Judicial intervention calls for an actual
case or controversy which is defined as "an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory." 11 Justice Isagani A. Cruz further
expounds that "(a) justifiable controversy is thus distinguished from a difference or dispute of a
hypothetical or abstract character or from one that is academic or moot. The controversy must be
definite and concrete, touching the legal relations of parties having adverse legal interests. It
must be a real and substantial controversy admitting of special relief through a decree that is
conclusive in character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. . . ." 12 A.O. No. 308 does not create any concrete or substantial
controversy. It provides the general framework of the National Computerized Identification
Reference System and lays down the basic standards (efficiency, convenience and prevention of
fraudulent transactions) for its cretion. But as manifestly indicated in the subject order, it is the
Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and formulate
the guidelines and parameters for the use of Biometrics Technology and in computer application
designs that will and define give substance to the new system. 13 This petition is, thus, premature
considering that the IACC is still in the process of doing the leg work and has yet to codify and
formalize the details of the new system.
The majority opines that the petition is ripe for adjudication even without the promulgation of
the necessary guidelines in view of the fact that respondents have begun implementation of A.O.
No. 308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards. 14
I beg to disagree. It is not the new system itself that is intended to be implemented in the
invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is not and
cannot be used in the I.D. cards as no guidelines therefor have yet been laid down by the IACC.
Before the assailed system can be set up, it is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal contention for invalidating the new identification
reference system — that it is an impermissible encroachment on the constitutionally recognized
right to privacy — is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient
basis for a conclusion that the new system to be evolved violates the right to privacy. Said order
simply provides the system's general framework. Without the concomitant guidelines, which
would spell out in detail how this new identification system would work, the perceived violation
of the right to privacy amounts to nothing more than mere surmise and speculation.
What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of
autnomated matching of physiological or behavioral characteristics to identify a person that
would violated the citizen's constitutionally protected right to privacy.
The majority opinion has enumerated various forms and methods of Biometrics Technology
which if adopted in the National Computaized Identification Reference System would seriously
threaten the right to privacy. Among which are biocrypt retinal scan, artificial nose and
thermogram. The majority also points to certain alleged deficiencies of A O. No. 308. Thus:
1) A.O. No. 308 does not specify the particular Biometrics Technology that shall
be used for the new identification system.
2) The order dots not state whether encoding of data is limited to biological
information alone for identification purposes;
3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and
4) There are no controls to guard against leakage of information, thus heightening

the potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology and its
alleged, yet unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology that may pose danger to the right of privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to
provide citizens and foreign residents with the facility to conveniently transact business
with basic service and social security providers and other government instrumentalities; the
computerized system is intended to properly and efficiently identify persons seeking basic
services or social security and reduce, if not totally eradicate fraudulent transactions and
misreprentation; the national identification reference system is established among the key basic
services and social security providers; and finally, the IACC Secretariat shall coordinate with
different Social Security and Services Agencies to establish the standards in the use of
Biometrics Technology. Consequently, the choice of the particular form and extent of Biometrics
Technology that will be applied and the parameters for its use (as will be defined in the
guidelines) will necessarily and logically be guided, limited and circumscribed by the afore-
stated standards. The fear entertained by the majority on the potential dangers of this new
technology is thus securedly allayed by the specific limitations set by the above-mentioned
standards. More than this, the right to privacy is well-esconced in and directly protected by
various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain
laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these
laws provide penalties for their violation in the form of imprisonment, fines, or damages. These
laws will serve as powerful deterrents not only in the establishment of any administrative rule
that will violate the constitutionally protected right to privacy, but also to would-be transgressors
of such right.
Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 15 In that case, a
New York statute was challenged for requiring physicians to identify patients obtaining
prescription drugs of the statute's "Schedule II" category (a class of drugs having a potential for
abuse and a recognized medical use) so the names and addresses of the prescription drug patients
can be recorded in a centralized computer file maintained by the New York State Department of
Health. Some patients regularly receiving prescription for "Schedule II" drugs and doctors who
prescribed such drugs brought an action questioning the validity of the statute on the ground that
it violated the plaintiffs' constitutionally protected rights of privacy.
In a unanimous decision, the US Supreme Court sustained the validity of the statute on the
ground that the patient identification requirement is a reasonable exercise of the State's broad
police powers. The Court also held that there is no support in the record for an assumption that
the security provisions of the statute will be adiministered improperly. Finally, the Court opined
that the remote possibility that judicial supervision of the evidentiary use of particular items of
stored information will not provide adequate protection against unwarranted diclosures is not a
sufficient reason for invalidating the patient-identification program.
To be sure, there is always a possibility of an unwarranted disclosure of confidential matters

enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously
pointed out, we have a sufficient number of laws prohibiting and punishing any such
unwarranted disclosures. Anent this matter, the observation in Whalen vs. Roeis instructive:
. . . We are not unaware of the threat to privacy implicit in the accumulation of

vast amounts of personal information in computerized data banks or other
massive government files. The collection of taxes, the distribution of welfare and
social security benefits, the supervision of public health, the direction of our
Armed Forces and the enforcement of the criminal laws all require the orderly
preservation of great quantities of information, much of which is personal in
character and potentially embarrassing or harmful if disclosed. The right to collect
and use such data for public purposes is typically accompanied by a concomitant
statutory or regulatory duty to avoid unwarranted disclosures. . . . 16
The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and
economic experimentation lest they impede or obstruct the march of technology to improve
public services just on the basis of an unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words of Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave responsibility.

Denial of the right to experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the country. This
Court has the power to prevent an experiment. We may strike down the statute
which embodies it on the ground that, in our opinion, the measure is arbitary,
capricious or unreaonable. We have power to do this, because the due process
clause has been held by he Court applicable to matters of substantive law as well
as to matters of procedure. But in the exercise of this high power, we must be ever
on our guard, lest we erect our prejudices into legal principles. If we would guide
by the light of reason, we must let our minds be bold. 17
Again, the concerns of the majority are premature precisely because there are as yet no
guidelines that will direct the Court and serve as solid basis for determining the constitutionality
of the new identification system. The Court cannot and should not anticipate the constitutional
issues and rule on the basis of guesswok. The guidelines would, among others, determine the
particular biometrics method that would be used and the specific personal data that would be
collected provide the safeguard, (if any) and supply the details on how this new system in
supposed to work. The Court should not jump the gun on the Executive.
III
On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the
government agencies included in the new system to obtain funding form their respective budgets,
is unconstitutional for being an illegal transfer of appropriations.
It is not so. The budget for the national identification system cannot be deemed a transfer of
funds since the same is composed of and will be implemented by the member government
agancies. Morever, thses agencies particularly the GSIS and SSS have been issuing some form of
identification or membership card. The improved ID cards that will be issued under this new
system would just take place of the old identification cards and budget-wise, the funds that were
being used to manufacture the old ID cards, which are usually accounted for under the "Supplies
and Materials" item of the Government Accounting and Auditing Manual, could now be utilized
to fund the new cards. Hence, what is envisioned is not transfer of appropriations but a pooling
of funds and resources by the various government agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.
MENDOZA, J., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I
can see, all the Administrative Orders does is
• establish an Identification Reference System involving the following

service agencies of the government:
º Presidential Management Staff

º National Economic Developemnt Authority
º Department of the Interior and Local Government
º Department of Health
º Government Service Isurance System
º Social Security Office
º National Computer Center
• create a committee, composed of the heads of the agencies concerned, to

draft rules for the System;
• direct the use of the Population Reference Number (PRN) generated by

the National Census and Statistics Office as the common reference number
to link the participating agencies into an Identification Reference System,
and the adoption by the agencies of standards in the use of biometrics
technology and computer designs; and
• provide for the funding of the System from the budgets of the agencies
concerned.
Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and
every Filipino and resident will have a file with the government containing, at the very least,
his PRN and physiological biometrics such as, but not limited to, his facial features, hand
geometry, retinal or iris pattern, DNA pattern, fingerprints, voice characteristics, and signature
analysis."
In support of his contention, petitioner quotes the following publication surfed from the Internet:
The use of biometrics is the means by which an individual may be conclusively

identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry,
retinal and iris patterns. DNA, and fingerprints characteristics include voice
characteristics and signature analysis. 1
I do not see how from the bare provisions of the Order, the full text of which is set forth in the
majority opinion, petitioner and the majority can conclude that the Identification Reference
System establishes such comprehensive personal information dossiers that can destroy individual
privacy. So far as the Order provides, all that is contemplated is an identification system based
on data which the government agencies involved have already been requiring individuals making
use of their services to give.
For example, under C.A. No. 591, §2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register, 2which means that it keeps records of
information concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and
their annulments; (d) legitimations, (e) adoptions, (f) acknowledgments of natural children, (g)
naturalizations, and (h) changes of name. 3
Other statutes giving government agencies the power to require personal information may be
cited. R.A. No. 4136, §23 gives the Land Transportation Office the power to require applicants
for a driver's license to give information regarding the following: their full names, date of birth,
height, weight, sex, color of eyes, blood type, address, and right thumbprint; 4 while R.A. No.
8239, §5 gives the Department of Foreign Affairs the power to require passport applicants to
give information concerning their names, place of birth, date of birth, religious affiliation,
marital status, and citizenship.
Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover
their nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the
Identification Reference System "to prevent the shrinking of the right to privacy, once regarded
as "the most comprehensive of rights and the right most valued by civilized men."" 5 Indeed,
techniques such as fingerprinting or electronic photography in banks have become
commonplace. As has been observed, the teaching hospital has come to be accepted as offering
madical services that compensate for the loss of the isolation of the sickbed; the increased
capacity of applied sciences to utilize more and more kinds of data and the cosequent calls for
such data have weakened traditional resistance to disclosure. As the area of relevance, political
or scientific, expands, there is strong psychological pressure to yield some ground of privacy. 6
But this is a fact of life to which we must adjust, as long as the intrusion into the domain of
privacy is reasonable. InMorfe v. Mutuc, 7 this Court dealt the coup de grace to claims of
latitudinarian scope for the right of privacy by quoting the pungent remark of an acute observer
of the social scene, Carmen Guerrero-Nakpil:
Privacy? What's that? There is no precise word for it in Filipino, and as far as I
know any Filipino dialect and there is none because there is no need for it. The
concept and practice of privacy are missing from conventional Filipino life. The
Filipino believes that privacy is an unnecessary imposition, an eccentricity that is
barely pardonable or, at best, an esoteric Western afterthought smacking of legal
trickery. 8
Justice Romero herself says in her separate opinion that the word privacy is not even in
the lexicon of Filipinos.
As to whether the right of privacy is "the most valued right," we do well to remember the
encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ
of habeas corpus is "the most important human rights provision in the fundamental law,"" 9 For
Justice Cardozo, on the other hand, freedom of expression "is the matrix, the indispensable
condition of nearly every other form of freedom." 10
The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of
review for regulations alleged to infringe certain rights deemed to be "most valued by civilized
men.''
Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards
and well-defined standards to prevent unconstitutional invasions." 11 In the case of the
Identification Reference System, the purpose is to facilitate the transaction of business with
service agencies of the government and to prevent fraud and misrepresentation. The personal
identification of an individual can facilitate his treatment in any government hospital in case of
emergency. On the other hand, the delivery of material assistance, such as free medicines, can be
protected from fraud or misrepresentation as the absence of a data base makes it possible for
unscrupulous individuals to obtain assistance from more than one government agency.
Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of
privacy formed by emanations from the several constitutional rights cited by the majority. 12 The
question is whether it violates freedom of thought and of conscience guaranteed in the following
provisions of our Bill of Rights (Art. III):
Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or

of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Sec. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise enjoyment of religious
profession and worship, without discrimination or preference, shall be forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
More specifically, the question is whether the establishment of the Identification Reference
System will not result in the compilation of massive dossiers on individuals which, beyond their
use for identification, can become instruments of thought control. So far, the next of A.O. No.
308 affords no basis for believing that the data gathered can be used for such sinister purpose. As
already stated, nothing that is not already being required by the concerned agencies of those
making use of their servides is required by the Order in question. The Order simply organizes
service agencies of the government into a System for the purpose of facilitating the identification
of persons seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308
state:
identify persons seeking basic services and social security, and reduce, if not
required to achieve such a system:
The application of biometric technology and the standardization of computer designs can
provide service agencies with precise identification of individuals, but what is wrong
with that?
Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of
the Philippines has issued in his capacity as administrative head. 13 It is not a statute. It confers
no right; it imposes no duty; it affords no protection; it creates no office. 14 It is, as its name
indicates, a mere administrative order, the prescise nature of which is given in the following
excerpt from the decision in the early case of Olsen & Co. v. Herstein: 15
[It] is nothing more or less than a command from a superior to an inferior. It

creates no relation except between the official who issues it and the official who
receives it. Such orders, whether executive or departmental, have for their object
simply the efficient and economical administration of the affairs of the
department to which or in which they are issued in accordance with the law
governing the subject-matter. They are administrative in their nature and do not
pass beyond the limits of the department to which they are directed or in which
they are published, and, therefore, create no rights in third persons. They are
based on, and are the product of a relationship in which power is their source and
obedience their object. Disobedience to or deviation from such an order can be
punished only by the power which issued it: and, if that power fails to administer
the corrective, then the disobedience goes unpunished. In that relationship no
third person or official may intervene, not even the court. Such orders may be
very temporary, they being subject to instant revocation or modification by the
power which published them. Their very nature, as determined by the relationship
which prodecued them, demonstrates clearly the impossibility of any other person
enforcing them except the one who created them. An attempt on the part of the
courts to enforce such orders would result not only in confusion but, substantially,
in departmental anarchy also. 16
Third. There is no basis for believing that, beyond the identification of individuals, the System
will be used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure
of information gathered by the various agencies constituting the System. For example, as the
Solicitor General points out. C.A. No. 591. §4 penalizes the unauthorized use or disclosure of
data furnished the NSO with a fine of not more than P600.00 or imprisonment for not more than
six months or both.
At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be
used to curtail basic civil and political rights since, if at all, this can only be provided in the
implementing rules and regulations which have yet to be promulgated. We have already stated
that A.O. No. 308 is not a statute. Even in the case of statutes, however, where implementing
rules are necessary to put them into effect, it has been held that an attack on their
constitutionality would be premature. 17 As Edgar in King Lear puts it, "Ripeness is all." 18 For,
to borrow some more Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd. 19
That, more than any doctrine of constitutional law I can think of, succinctly expresses the
rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.
Of special relevance to this case is Laird v. Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of
civilian political activity having "a potential for civil disorder" exercised "a present inhibiting
effect on [respondents'] full expression and utilization of their First Amendment rights." In
holding the case nonjusticiable, the U.S. Supreme Court, in an opinion by Chief Justice Burger.
said: 21
In recent years this Court has found in a number of cases that constitutional
violations may arise from the deterrent or ''chilling," effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights. [Citation of cases omitted] In none of these cases, however,
did the chilling effect arise merely from the individual's knowledge that a
governmental agency was engaged in certain activities or from the individual's
concomitant fear that, armed with the fruits of those activities, the agency might
in the future take some other and additional action detrimental to that individual.
Rather, in each of these cases, the challenged exercise of governmental power was
regulatory, proscriptive, or compulsory in nature, and the complainant was either
presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging. . . .
[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of
executive or legislative action he must show that he was sustained or is
immediately in danger of sustaining a direct injury as the result of that action. . . .
The respondents do not meet this test; [the] alleged "chilling" effect may perhaps
be seen as arising from respondents' perception of the system as inappropriate to
the Army's role under our form of government, or as arising from respondents'
beliefs that it is inherently dangerous for the military to be concerned with
activities in the civilian sector, or as arising from respondents' less generalized yet
speculative apprehensiveness that the Army may at some future date misuse the
information in some way that would cause direct harm to respondents. Allegations
of a subjective "chill" are not an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm: "the federal courts established
pursuant to Article III of the Constitution do not render advisory
opinions." United Public Workers v. Mitchell, 330 US 75, 89, 91 L Ed 754, 766,
67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any objection to
the identification Reference System on the ground that it violates freedom of thought is
premature, speculative, or conjectural pending the issuance of the implementing rules, it is clear
that petitioner Blas F. Ople has no cause of action and, therefore, no standing to bring this action.
Indeed, although he assails A.O. No. 308 on the ground that it violates the right of privacy, he
claims no personal injury suffered as a result of the Order in question. Instead, he says he is
bringing this action as taxpayer, Senator, and member of the Government Service Insurance
System.
Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does
not involve the exercise of the taxing or spending power of the government.
Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing
that the funds necessary for implementing the System shall be taken from the budgets of the
concerned agencies. A.O. No. 308 violates Art. VI, §25(5) which. provides:
No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
But, as the Solicitor General states:
Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support
from the national government; and two, that the GAA is the only law whereby
public funds are appropriated. Both assumptions are wrong.
The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the
contributions of their members are sufficient to finance their expenses. One would
be hard pressed to find in the GAA an appropriation of funds to the SSS and the
GSIS.
Furthermore, their respective charters authorize the SSS and the GSIS to disburse
their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No.
1146 [1977], as amended, Sec. 29) without the need for a separate appropriation
from the Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question. 22 As already stated, in issuing A.O. No. 308,
the President did not exercise the legislative power vested by the Constitution in Congress. He
acted on the basis of his own powers as administrative head of the government, as distinguished
from his capacity as the Executive. Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the executive but
also the administrative head of the government. . . . Executive power refers to the
legal and political function of the President involving the exercise of discretion.
Administrative power, on the other hand, concerns itself with the work of
applying policies and enforcing orders as determined by proper governmental
organs. These two functions are often confused by the public: but they are distinct
from each other. The President as the executive authority has the duty of
supervising the enforcement of laws for the maintenance of general peace and
public order. As administrative head, his duty is to see that every government
office is managed and maintained properly by the persons in charge of it in
accordance with pertinent laws and regulations.
. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the
executive of the government, enabling him to comply more effectively with his
constitutional duty to enforce the laws. It enables him to fix a uniform standard of
a administrative eficiency and to check the official conduct of his agents. The
decisions of all the officers within his department are subject to his power of
revision, either on his own motion or on the appeal of some individual who might
deem himself aggrieved by the action of an administrative official. In case of
serious dereliction of duty, he may suspend or remove the officials concerned. 23
For the foregoing reasons, the petition should be DISMISSED.
G.R. No. 208566 November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON
SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S.
BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE
OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which
assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the
Court shall heretofore discuss the system‘s conceptual underpinnings before detailing the particulars
of the constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it
persists in reference to political bills that "bring home the bacon" to a legislator‘s district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district.7Some scholars on the subject further use it to refer to
legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of a joint committee elected by the
Senate and the House of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications."14 Also, in the area of fund realignment, the same section
provides that the said secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened

from the areas of fund release and realignment to the area of project identification. During
that year, the mechanics of the public works act was modified to the extent that the discretion
of choosing projects was transferred from the Secretary of Commerce and Communications
to legislators. "For the first time, the law carried a list of projects selected by Members of
Congress, they ‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this period, the pork barrel process
commenced with local government councils, civil groups, and individuals appealing to
Congressmen or Senators for projects. Petitions that were accommodated formed part of a
legislator‘s allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the administration bill
prepared by the Department of Public Works and Communications. Thereafter, the Senate
and the House of Representatives added their own provisions to the bill until it was signed
into law by the President – the Public Works Act.17 In the 1960‘s, however, pork barrel
legislation reportedly ceased in view of the stalemate between the House of Representatives
and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature,"19 the reprieve
was only temporary. By 1982, the Batasang Pambansa had already introduced a new item in
the General Appropriations Act (GAA) called the" Support for Local Development Projects"
(SLDP) under the article on "National Aid to Local Government Units". Based on reports,20 it
was under the SLDP that the practice of giving lump-sum allocations to individual legislators
began, with each assemblyman receiving ₱500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for
approval. Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal treasurers in the
assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public works projects, or so- called
"hard projects", but also "soft projects",21 or non-public works projects such as those which
would fall under the categories of, among others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with lump-
sum appropriations of ₱480 Million and ₱240 Million, respectively, for the funding of
development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a similar
funding, prompted the creation of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover "small local
infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as their
participation in the identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were
receiving ₱18 Million each, without any limitation or qualification, and that they could identify
any kind of project, from hard or infrastructure projects such as roads, bridges, and buildings
to "soft projects" such as textbooks, medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was
to be made upon the submission of the list of projects and activities identified by, among
others, individual legislators. For the first time, the 1993 CDF Article included an allocation
for the Vice-President.29 As such, Representatives were allocated ₱12.5 Million each in CDF
funds, Senators, ₱18 Million each, and the Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the Senate
Committee on Finance and the House Committee on Appropriations on the releases made
from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation
with the implementing agency concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations which shall be duly endorsed
by (a) the Senate President and the Chairman of the Committee on Finance, in the case of
the Senate, and (b) the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations, in the case of the House of Representatives; while the list for
the remaining 50% was to be submitted within six (6) months thereafter. The same article
also stated that the project list, which would be published by the DBM,35 "shall be the basis
for the release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s
political agenda.37 It has been articulated that since CIs "formed part and parcel of the
budgets of executive departments, they were not easily identifiable and were thus harder to
monitor." Nonetheless, the lawmakers themselves as well as the finance and budget officials
of the implementing agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of Education (DepEd) School
Building Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño
Fund, and the Poverty Alleviation Fund.39 The allocations for the School Building Fund,
particularly, ―shall be made upon prior consultation with the representative of the legislative
district concerned.”40 Similarly, the legislators had the power to direct how, where and when
these appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which
contained a special provision requiring "prior consultation" with the Member s of Congress
for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared
in the GAA. The requirement of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the implementing agency concerned
was explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any
expense category was expressly allowed, with the sole condition that no amount shall be
used to fund personal services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year
2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special
provision ordering the release of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The following year, 2003,50 the
same single provision was present, with simply an expansion of purpose and express
authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with
Members of Congress on the aspects of implementation delegation and project list
submission, respectively. In 2004, the 2003 GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs
and projects under the ten point agenda of the national government and shall be released
directly to the implementing agencies." It also introduced the program menu concept,55 which
is essentially a list of general programs and implementing agencies from which a particular
PDAF project may be subsequently chosen by the identifying authority. The 2005 GAA was
re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program
menu concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the proposal
and identification of PDAF projects to be funded. In contrast to the PDAF Articles, however,
the provisions under the DepEd School Building Program and the DPWH budget, similar to
its predecessors, explicitly required prior consultation with the concerned Member of
Congress61anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of non-
governmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for school
buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated
that "the amount of at least ₱250 Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the Federation of
Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school
buildings x x x."62 The same allocation was made available to NGOs in the 2007 and 2009
GAAs under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA 9184,66 the
Government Procurement Reform Act, to include, as a form of negotiated procurement,67 the
procedure whereby the Procuring Entity68(the implementing agency) may enter into a
memorandum of agreement with an NGO, provided that "an appropriation law or ordinance
earmarks an amount to be specifically contracted out to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article
included an express statement on lump-sum amounts allocated for individual legislators and
the Vice-President: Representatives were given ₱70 Million each, broken down into ₱40
Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200 Million was given to
each Senator as well as the Vice-President, with a ₱100 Million allocation each for "hard"
and "soft projects." Likewise, a provision on realignment of funds was included, but with the
qualification that it may be allowed only once. The same provision also allowed the
Secretaries of Education, Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and Public Works and Highways
to realign PDAF Funds, with the further conditions that: (a) realignment is within the same
implementing unit and same project category as the original project, for infrastructure
projects; (b) allotment released has not yet been obligated for the original scope of work, and
(c) the request for realignment is with the concurrence of the legislator concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by
each implementing agency (priority list requirement) x x x." However, as practiced, it would
still be the individual legislator who would choose and identify the project from the said
priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012
and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at
₱200 Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now
allowed LGUs to be identified as implementing agencies if they have the technical capability
to implement the projects.77 Legislators were also allowed to identify programs/projects,
except for assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended outside-
district, endorsed by the Speaker of the House.78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as requests for release of funds,
were all required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the term‘s usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth.82 Due to the energy-related activities of the government in the Malampaya natural
gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of
PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR).
PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described
as a special funding facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were
‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."93 "The
publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage."94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a
common exercise of unscrupulous Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts.97 Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)100 by the DBM, the application of these funds and the implementation of
projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted to
₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co A‘s findings contained in its Report
No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103
● Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having been
turned over to the government.
● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the
implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.
● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy

two (772) projects amount to ₱6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.
● Procurement by the NGOs, as well as some implementing agencies, of goods and

services reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork
Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara
Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition
be issued permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in
their respective capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds for the "Pork
Barrel System," in whatever form and by whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse
of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the
CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion
in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition

dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional,
and a cease and desist order be issued restraining President Benigno Simeon S. Aquino III
(President Aquino) and Secretary Abad from releasing such funds to Members of Congress and,
instead, allow their release to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive departments, such as the DPWH, the
Department of Tourism, the Department of Health, the Department of Transportation, and
Communication and the National Economic Development Authority.111 The Nepomuceno Petition was
docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any
of the persons acting under their authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910
but not for the purpose of "financing energy resource development and exploitation programs and
projects of the government‖ under the same provision; and (d) setting the consolidated cases for
Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of the Court‘s September 10, 2013
TRO, and that the consolidated petitions be dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to
the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b)
on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c)
on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to,
among others, the budgeting process and its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues
for the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August
19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987,
entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP)
bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the principles
of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto
are unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the
priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential
Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the Court
shall also tackle certain ancillary issues as prompted by the present cases.
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case.118 Of these requisites, case law states that the first two are the most
important119and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This
is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or
controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute.121 In other words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the individual challenging it. It is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass
upon constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."124
Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869,
as amended by PD 1993, for the Presidential Social Fund – are currently existing and operational;
hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional
use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is
no more actual controversy between the parties or no useful purpose can be served in passing upon
the merits.125 Differing from this description, the Court observes that respondents‘ proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article
which, being a distinct subject matter, remains legally effective and existing. Neither will the
President‘s declaration that he had already "abolished the PDAF" render the issues on PDAF moot
precisely because the Executive branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment or nullification of a law may be
done either by Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor
General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the release of the soft projects," and that
started, Your Honor. Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of
Book 6 of the Revised Administrative Code128 x x x. So at most the President can suspend, now if the
President believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-blowers,
the President was just exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop
and investigate, and prosecute, he has done that. But, does that mean that PDAF has been
repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law
to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.129
The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.
The applicability of the second exception is also apparent from the nature of the interests involved
– the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character
as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a
time when the system‘s flaws have never before been magnified. To the Court‘s mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government‘s
own recognition that reforms are needed "to address the reported abuses of the
PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the importance of the
matter. It is also by this finding that the Court finds petitioners‘ claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the
CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v. CoA,131 a
recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it
was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities, especially
one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of
separation of powers but also for their presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only respect but also finality when the decision
and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate controlling principles relative to the
issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may
be guided on how public funds should be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget
for 2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the
course of history, lends a semblance of truth to petitioners‘ claim that "the same dog will just
resurface wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the government had
already backtracked on a previous course of action yet the Court used the "capable of repetition but
evading review" exception in order "to prevent similar questions from reemerging."137 The situation
similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department,"
"a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial discretion." Cast
against this light, respondents submit that the "the political branches are in the best position not only
to perform budget-related reforms but also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question refers to "those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent
upon the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system
along constitutional lines is a task that the political branches of government are incapable of
rendering precisely because it is an exercise of judicial power. More importantly, the present
Constitution has not only vested the Judiciary the right to exercise judicial power but essentially
makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any
clearer: "The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. It includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." In Estrada v. Desierto,142 the expanded concept of
judicial power under the 1987 Constitution and its effect on the political question doctrine was
explained as follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality nullify
or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred
obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by constitutional force that
the Court must faithfully perform its duty. Ultimately, it is the Court‘s avowed intention that a
resolution of these cases would not arrest or in any manner impede the endeavors of the two other
branches but, in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch of government, within
its own sphere, contributes its share towards achieving a holistic and genuine solution to the
problems of society. For all these reasons, the Court cannot heed respondents‘ plea for judicial
restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as
taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law,147 as in these
cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest."148 The CoA Chairperson‘s statement during
the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls"149 amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the instant
cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject matter, and of
causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF
Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality –
and, thus, hardly a judgment on the merits – in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of
Congress, who actually spend them according to their sole discretion" or "pertinent evidentiary
support to demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a
common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be different. It proceeds from the first principle
of justice that, absent any powerful countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e.,
the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners‘
posturing was that "the power given to the Members of Congress to propose and identify projects
and activities to be funded by the CDF is an encroachment by the legislature on executive power,
since said power in an appropriation act is in implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or the repeal and amendment thereof,
the only function given to the Congress by the Constitution."154 In deference to the foregoing
submissions, the Court reached the following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are merely recommendatory. At once,
it is apparent that the Philconsa resolution was a limited response to a separation of powers
problem, specifically on the propriety of conferring post-enactment identification authority to
Members of Congress. On the contrary, the present cases call for a more holistic examination of (a)
the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the issues and
the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may
be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in allowing
Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily seen. If the authority to identify
projects is an aspect of appropriation and the power of appropriation is a form of legislative power
thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such
authority, and not its individual Members; (b) such authority must be exercised within the prescribed
procedure of law passage and, hence, should not be exercised after the GAA has already been
passed; and (c) such authority, as embodied in the GAA, has the force of law and, hence, cannot be
merely recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority, however, to
the individual members of Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight and current findings on the matter,
among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa
insofar as it validated the post-enactment identification authority of Members of Congress on the
guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative
as it is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List
v. Purisima155(Abakada) has effectively overturned Philconsa‘s allowance of post-enactment legislator
participation in view of the separation of powers principle. These constitutional inconsistencies and
the Abakada rule will be discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive
issues in these cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are
essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse."156 They assert that
the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through
the appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits.157 They further state that the
Pork Barrel System is comprised of two (2) kinds of discretionary public funds: first, the
Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the
Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159
Considering petitioners‘ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner
by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the fund’s utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For reasons
earlier stated,161 the Court shall delimit the use of such term to refer only to the Malampaya Funds
and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral
Commission,162 it means that the "Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government."163 To the legislative branch of government, through Congress,164belongs the power to
make laws; to the executive branch of government, through the President,165 belongs the power to
enforce laws; and to the judicial branch of government, through the Court,166 belongs the power to
interpret laws. Because the three great powers have been, by constitutional design, ordained in this
respect, "each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the law, and the
judiciary has no power to make or execute the law."168 The principle of separation of powers and its
concepts of autonomy and independence stem from the notion that the powers of government must
be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the citizenry.169 To achieve
this purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of government to check the arbitrary or self-
interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the other’s performance of its constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly
is entrusted to another."172 In other words, there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget
execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget execution cycle.174 This is rooted in
the principle that the allocation of power in the three principal branches of government is a grant of
all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation
of the national budget as provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the same
is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress
enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution, which specifies that no money may
be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress‘ law -making role necessarily comes to an end and from there
the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere
oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In 1âwphi1
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013
PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed."179 They state that the findings and recommendations in the
CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over
project implementation in complete violation of the constitutional principle of separation of
powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.181
For their part, respondents counter that the separations of powers principle has not been violated
since the President maintains "ultimate authority to control the execution of the GAA‖ and that he
"retains the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify
projects so long as such proposal and identification are recommendatory."183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to participate in the post-enactment phases of project
implementation.
At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 –
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the identified project falls under a
general program listed in the said menu. Relatedly, Special Provision 2 provides that the
implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more
detailed priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the representative of the district concerned
concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be
seriously doubted that legislators have been accorded post-enactment authority to identify PDAF
projects.
Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment of
funds shall be submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve
realignment from one project/scope to another within the allotment received from this Fund, subject
to among others (iii) the request is with the concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental
rule, as categorically articulated in Abakada, cannot be overstated – from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite the
contrary, respondents – through the statements of the Solicitor General during the Oral Arguments –
have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to
the entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of
the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all
other provisions of law which similarly allow legislators to wield any form of post-enactment authority
in the implementation or enforcement of the budget, unrelated to congressional oversight, as
violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal
practices, through which legislators have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of
the 1987 Constitution states that such power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.195 Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the process of initiative and
referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would
be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed
to legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority
of the President to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency,197or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-
making authority to implementing agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
actual operation (contingent rule-making).199The conceptual treatment and limitations of delegated
rule-making were explained in the case of People v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-delegability
since said legislators are effectively allowed to individually exercise the power of appropriation,
which – as settled in Philconsa – is lodged in Congress.201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of
appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b) a
specified purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a
personal lump-sum fund from which they are able to dictate (a) how much from such fund would go
to (b) a specific project or beneficiary that they themselves also determine. As these two (2) acts
comprise the exercise of the power of appropriation as described in Bengzon, and given that the
2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the Constitution does not, however,
allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and distinct
does not mean that they are absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.203
A prime example of a constitutional check and balance would be the President’s power to veto an
item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval
through a process known as "bill presentment." The President‘s item-veto power is found in Section
27(2), Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the Constitution.204 As stated in Abakada, the final
step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the
Court, in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a variety of policy goals such as to
prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the
executive branch‘s role in the budgetary process.208 In Immigration and Naturalization Service v.
Chadha, the US Supreme Court characterized the President‘s item-power as "a salutary check upon
the legislative body, calculated to guard the community against the effects of factions, precipitancy,
or of any impulse unfriendly to the public good, which may happen to influence a majority of that
body"; phrased differently, it is meant to "increase the chances in favor of the community against the
passing of bad laws, through haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations, pertains
to "the particulars, the details, the distinct and severable parts of the appropriation or of the bill." In
the case of Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Supreme Court
characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence – meaning an allocation of a specified singular amount for a specified
singular purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be
consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity
Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a specified
amount for a specific purpose, would then be considered as "line- item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such component to be considered as
a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related
purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional
mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987
Constitution requires that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the National Treasurer,
or t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall
be disbursed only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such
appropriation type necessitates the further determination of both the actual amount to be expended
and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific
appropriation of money‖ and hence, without a proper line-item which the President may veto. As a
practical result, the President would then be faced with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire
appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to
state that such arrangement also raises non-delegability issues considering that the implementing
authority would still have to determine, again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations constitute the integral aspects of
the power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power
of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless."213
On the other hand, respondents maintain that the text of the Constitution envisions a process which
is intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations
are essential to financially address situations which are barely foreseen when a GAA is enacted.
They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the President‘s power of item veto.
As petitioners aptly point out, the above-described system forces the President to decide between
(a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that would
aid in more stringently auditing the utilization of said Funds."216 Accordingly, she recommends the
adoption of a "line by line budget or amount per proposed program, activity or project, and per
implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for future contingencies cannot be an
excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is
that unconstitutional means do not justify even commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its
Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a
direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from
fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on
re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people‘s trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact
accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public funds may
be checked is the power of congressional oversight. As mentioned in Abakada,222 congressional
oversight may be performed either through: (a) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;223 or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the implementation of the budget makes
it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation – a matter
before another office of government – renders them susceptible to taking undue advantage of their
own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area
of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based
on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject
of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative
or executive action.226 Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since
it has not been properly demonstrated how the Pork Barrel System would be able to propagate
political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and
3, Article X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
Commission v. Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development
of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local
affairs which are best resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for local development.230 The Court
agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project."231 Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork
Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President – who do not represent any locality,
receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given
unto them on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and
social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared
towards managing local affairs,235 their programs, policies and resolutions should not be overridden
nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-
enactment authority conferred to the latter was succinctly put by petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and initiate projects
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as
invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing
the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is
not an appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a Special Fund incidental
thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social Fund is merely incidental to the
"primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."239
The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations
of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation
by Congress shall be made, except that it be ‘made by law,‘" an appropriation law may – according
to Philconsa – be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it
be "made by law," such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made in general as
well as in specific terms. The Congressional authorization may be embodied in annual laws, such as
a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
reiterate, if a legal provision designates a determinate or determinable amount of money and
allocates the same for a particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law"
under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery
bonus, production bonus; all money collected from concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President. (Emphases
supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of
the Energy Development Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting
five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than
₱150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development
projects and x x x the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the ₱24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis
to the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development
and exploitation programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose
of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that the legislative guidelines for delegated
rule-making are indeed adequate. The first test is called the "completeness test." Case law states
that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard
test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate‘s authority and prevent
the delegation from running riot.247 To be sufficient, the standard must specify the limits of the
delegate‘s authority, announce the legislative policy, and identify the conditions under which it is to
be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use
the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may be confined
only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed
to include – or be restricted to – things akin to, resembling, or of the same kind or class as those
specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the
class it represents, namely energy development programs of the government;250 and, third, the
Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents‘ own position that it is limited only to
"energy resource development and exploitation programs and projects of the government."251 Thus,
while Section 8 of PD 910 may have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that
the Malampaya Funds would be used – as it should be used – only in accordance with the avowed
purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
Fund may be used "to first, finance the priority infrastructure development projects and second, to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds that while the second
indicated purpose adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same.
To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since
the said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
well as economic and residential development."253 In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since – similar to the
above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did
so in the context of its pronouncements made in this Decision – petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto"255 (Presidential Pork Use
Report). Petitioners‘ prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256
While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and
the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use
Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latter‘s duty to furnish them with the
documents requested. While petitioners pray that said information be equally released to the CoA, it
must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern, however, if only to ensure that the
parameters of disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners‘ prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation
and absent any valid statutory prohibition, access to these documents should not be proscribed.
Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of
the list requested by petitioners therein, it nonetheless allowed access to the documents sought for
by the latter, subject, however, to the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach,
it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency concerned prior to the issuance of the
Court‘s September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated
SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing
agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO
because they cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable
interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013
TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the current Decision. In particular, the Court must
resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this
Decision is promulgated, may still be disbursed following the DBM‘s interpretation in DBM Circular
2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur
obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or
is subject to separate approval or clearance by competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may
even be withdrawn under certain circumstances which will prevent the actual release of funds. On
the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is
subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate
or to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to
be able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA,
Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued
are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered
by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this
Decision’s promulgation, be enjoined and consequently reverted to the unappropriated surplus of the
general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court
sanctions the dealing of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD
910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD
1993, which were altogether declared by the Court as unconstitutional. However, these funds should
not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special
purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of
(a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated
as prospective in effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v.
San Roque Power Corporation,266 the doctrine merely "reflects awareness that precisely because the
judiciary is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme Court decision: ‘The actual existence of a
statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional
in view of the inherent defects in the rules within which it operates. To recount, insofar as it has
allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the principle of separation of powers; insofar as it
has conferred unto legislators the power of appropriation by giving them personal, discretionary
funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a
stake in the affairs of budget execution, an aspect of governance which they may be called to
monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite
the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured,
the Court urges the people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous public debate,
the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the Constitution so that no
one may heretofore detract from its cause nor stray from its course. After all, this is the Court‘s
bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d
legislators – whether individually or collectively organized into committees – to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as but not
limited to the areas of project identification, modification and revision of project identification, fund
release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum
allocations to legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases
(1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation of the principle of non-delegability of legislative
power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year
2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under
the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects" pursuant to Section 12 of Presidential
Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision
is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment
Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the
Presidential Social Fund shall remain therein to be utilized for their respective special purposes not
otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget
and Management be ordered to provide the public and the Commission on Audit complete
lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners‘ access to official documents already available and of public record which
are related to these funds must, however, not be prohibited but merely subjected to the custodian‘s
reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice
to a proper mandamus case which they or the Commission on Audit may choose to pursue through
a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases
in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the
political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds
of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.
G.R. No. L-2246 January 31, 1951
JOVITO R. SALONGA, plaintiff-appellee,

vs.
WARNER, BARNES AND CO., LTD., defendant-appellant.
Perkins, Ponce Enrile, Contreras and Gomez for appellant.

Pedro L. Yap for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from a decision of the Court of First Instance of Manila ordering the defendant, as
agent of Westchester Fire Insurance Company of New York, to pay to the plaintiff the sum of P727.
82 with legal interest thereon from the filing of the complaint until paid, and the costs. The case was
taken to this court because it involves only questions of law.
On August 28, 1946, Westchester Fire Insurance Company of New York entered into a contract with
Tina J. Gamboa whereby said company insured one case of rayon yardage which said Tina J.
Gamboa shipped from San Francisco, California, on steamer Clovis Victory, to Manila, Philippines
and consigned to Jovito Salonga, plaintiff herein. According to the contract of insurance, the
insurance company undertook to pay to the sender or her consignee the damages that may be
caused to the goods shipped subject to the condition that the liability of the company will be limited
to the actual loss which the insured may suffer not to the exceed the sum of (2,000. The ship arrived
in Manila on September 10, 1946. On October 7, the shipment was examined by C. B. Nelson and
Co., marine surveyors, at the request of the plaintiff, and in their examination the surveyors found a
shortage in the shipment in the amount of P1,723,12. On October 9, plaintiff filed a claim for
damages in the amount of P1,723.12 against the American President Lines, agents of the
ship Clovis Victory, demanding settlement, and when apparently no action was taken on this claim,
plaintiff demanded payment thereof from Warner, Barnes and Co., Ltd., as agent of the insurance
company in the Philippines, and this agent having refused to pay the claim, on April 17, 1947,
plaintiff instituted the present action.
In the meantime, the American President Lines, in a letter dated November 25, 1946, agreed to pay
to the plaintiff the amount of P476.17 under its liability in the bill of lading, and when this offer was
rejected, the claim was finally settled in the amount of P1,021.25. As a result, the amount claimed in
the complaint as the ultimate liability of the defendant under the insurance contract was reduced to
P717.82 only.
After trial, at which both parties presented their respective evidence, the court rendered judgment as
stated in the early part of this decision. The motion for reconsideration filed by the defendant having
been denied, the case was appealed to this court.
Appellant now assigns the following errors:
The trial court erred in finding that the loss or damage of the case of rayon yardage
(Pilferage, as found by the marine surveyors)is included in the risks insured against as
enunciated in the insurance policy.
II
The trial court erred in holding that defendant, as agent of Westchester Fire Insurance
Company of New York, United States of America, is responsible upon the insurance claim
subject to the suit.
III
The trial court erred in denying defendant's motion for new trial and to set aside the decision.
(Appellant's assignments of error).
We will begin by discussing the second error assigned by appellant for the reason that if our view on
the question raised is in favor of the claim of appellant there would be no need to proceed with the
discussion of the other errors assigned, for that would put an end to the controversy.
As regards the second assignment of error, counsel claims that the defendant cannot be made
responsible to pay the amount in litigation because (1) said defendant has no contractual relation
with either the plaintiff or his consignor; (2) the defendant is not the real party in interest against
whom the suit should be brought; and (3) a judgment for or against an agent in no way binds the real
party in interest.
1. We are of the opinion that the first point is well taken. It is a well known rule that a contractual
obligation or liability, or an action ex-contractu, must be founded upon a contract, oral or written,
either express or implied. This is axiomatic. If there is no contract, there is no corresponding liability,
and no cause of action may arise therefrom. This is what is provided for in article 1257 of the Civil
Code. This article provides that contracts are binding upon the parties who make them and their
heirs, excepting, with respect to the latter, where the rights and obligations are not transmissible,
and when the contract contains a stipulation in favor of a third person, he may demand its fulfillment
if he gives notice of his acceptance before it is revoked. This is also the ruling laid down by this court
in the case of E. Macias and Co. vs. Warner, Barnes and Co. (43 Phil. 155) wherein, among others,
the court said:
xxx xxx xxx
. . . There is no contract of any kind, either oral or written, between the plaintiff and Warner,
Barnes and Company. Plaintiff's contracts are with the insurance companies, and are in
writing, and the premiums were paid to the insurance companies and the policies were
issued by, and in the name of, the insurance companies, and on the face of the policy itself,
the plaintiff knew that the defendant was acting as agent, for, and was representing, the
respective insurance companies in the issuance and delivery of the policies. The defendant
company did not contract or agree to do anything or to pay the plaintiff any money at any
time or on any condition, either as agent or principal.
xxx xxx xxx
Every cause of action ex-contractu must be founded upon a contract, oral or written, either
express or implied.
Warner, Barnes and Co., as principal or agent, did not make any contract, either oral or
written, with the plaintiff. The contracts were made between the respective insurance
companies and the insured, and were made by the insurance companies, through Warner,
Barnes and Co., as their agent.
As in the case of a bank draft, it is not the cashier of the bank who makes the contract to pay
the money evidenced by the draft, it is the bank, acting through its cashier, that makes the
contract. So, in the instant case, it was the insurance companies, acting through Warner,
Barnes and Co., as their agent, that made the written contracts with the insured. (E. Macias
and Co. vs. Warner, Barnes and Co., 43 Phil., 155, 161, 162.)
Bearing in mind the above rule, we find that the defendant has not taken part, directly or indirectly, in
the contract in question. The evidence shows that the defendant did not enter into any contract
either with the plaintiff or his consignor — Tina J. Gamboa. The contract of marine insurance, Exhibit
C, was made and executed only by and between the Westchester Fire Insurance Company of New
York and Tina J. Gamboa. The contract was entered in New York. There is nothing therein which
may affect, in favor or adversely, the defendant, the fulfillment of which may be demanded by or
against it. That contract is purely bilateral, binding only upon Gamboa and the insurance company.
When the lower court, therefore, imposed upon the defendant an obligation which it has never
assumed, either expressly or impliedly, or when it extended to the defendant the effects of a contract
which was entered into exclusively by and between the Westchester Fire Insurance Company of
New York and Tina J. Gamboa, the error it has committed is evident. This is contrary to law.
We do not find any material variance between this case and the case of E. Macias and
Co. vs. Warner, Barnes and Co., supra, as pointed out by counsel for appellee, in so far as the
principle we are considering is concerned. Both cases involve similar facts which call for the
application of a similar ruling. In both cases the issue is whether an agent, who acts within the scope
of his authority, can assume personal liability for a contract entered into by him in behalf of his
principal. And in the Macias case we said that the agent did not assume personal liability because
the only party bound was the principal. And in this case this principle acquires added force and effect
when we consider the fact that the defendant did not sign the contract as agent of the foreign
insurance company as the defendant did in the Macias case. The Macias case, therefore, is on all
fours with this case and is decisive of the question under consideration.
2. Counsel next contends that Warner, Barnes and Co., Ltd., is not the real party in interest against
whom the suit should be brought. It is claimed that this action should have been filed against its
principal, the Westchester Fire Insurance Company of New York. This point is also well taken.
Section 2, Rule 3 of the Rules of Court requires that "every action must be prosecuted in the name
of the real party in interest." A corollary proposition to this rule is that an action must be brought
against the real party in interest, or against a party which may be bound by the judgment to be
rendered therein (Salmon and Pacific Commercial Co. vs. Tan Cueco, 36 Phil., 556). The real party
in interest is the party who would be benefited or injured by the judgment, or the "party entitled to the
avails of the suit" (1 Sutherland, Court Pleading Practice and Forms, p. 11). And in the case at bar,
the defendant issued upon in its capacity as agent of Westchester Fire Insurance Company of New
York in spite of the fact that the insurance contract has not been signed by it. As we have said, the
defendant did not assume any obligation thereunder either as agent or as a principal. It cannot,
therefore, be made liable under said contract, and hence it can be said that this case was filed
against one who is not the real party in interest.
We agree with counsel for the appellee that the defendant is a settlement and adjustment agent of
the foreign insurance company and that as such agent it has the authority to settle all the losses and
claims that may arise under the policies that may be issued by or in behalf of said company in
accordance with the instructions it may receive from time to time from its principal, but we disagree
with counsel in his contention that as such adjustment and settlement agent, the defendant has
assumed personal liability under said policies, and, therefore, it can be sued in its own right. An
adjustment and settlement agent is no different from any other agent from the point of view of his
responsibility, for he also acts in a representative capacity. Whenever he adjusts or settles a claim,
he does it in behalf of his principal, and his action is binding not upon himself but upon his principal.
And here again, the ordinary rule of agency applies. The following authorities bear this out:
An insurance adjuster is ordinarily a special agent for the person or company for whom he
acts, and his authority is prima facie coextensive with the business intrusted to him. . . .
An adjuster does not discharge functions of a quasi-judicial nature, but represents his
employer, to whom he owes faithful service, and for his acts, in the employer's interest, the
employer is responsible so long as the acts are done while the agent is acting within the
scope of his employment. (45 C. J. S., 1338-1340.)
It, therefore, clearly appears that the scope and extent of the functions of an adjustment and
settlement agent do not include personal liability. His functions are merely to settle and adjusts
claims in behalf of his principal if those claims are proven and undisputed, and if the claim is
disputed or is disapproved by the principal, like in the instant case, the agent does not assume any
personal liability. The recourse of the insured is to press his claim against the principal.
3. This brings us to the consideration of the third point. It is claimed that a judgment, for or against
an agent, in no way binds the real party in interest. In our opinion this point is also well taken, for it is
but a sequel to the principle we have pointed out above. The reason is obvious. An action is brought
for a practical purpose, nay to obtain actual and positive relief. If the party sued upon is not the
proper party, any decision that may be rendered against him would be futile, for it cannot be
enforced or executed. The effort that may be employed will be wasted. Such would be the result of
this case if it will be allowed to proceed against the defendant, for even if a favorable judgment is
obtained against it, it cannot be enforced because the real party is not involved. The defendant
cannot be made to pay for something it is not responsible. Thus, in the following authorities it was
held:
. . . Section 114 of the Code of Civil Procedure requires an action to be brought in the name
of the real party in interest; and a corollary proposition requires that an action shall be
brought against the persons or entities which are to be bound by the judgment obtained
therein. An action upon a cause of action pertaining to his principal cannot be brought by an
attorney-in-fact in his name (Arroyo vs. Granada and Gentero, 18 Phil., 484); nor can an
action based upon a right of action belonging to a principal be brought in the name of his
representative (Lichauco vs. Limjuco and Gonzalo, 19 Phil., 12). Actions must be brought by
the real parties in interest and against the persons who are to be bound by the judgment
obtained therein. (Salmon and Pacific Commercial Co. vs. Tan Cueco, 36 Phil., 557-558.)
xxx xxx xxx
An action to set aside an instrument of transfer of land should be brought in the name of the
real party in interest. An apoderado or attorney in fact is not a real party. He has no interest
in the litigation and has absolutely no right to bring the defendant into court or to put him to
the expense of a suit, and there is no pro-vision of law permitting action to be brought in such
manner. A judgment for or against the apoderado in no way binds or affects the real party,
and a decision in the suit would be utterly futile. It would touch no interest, adjust no
question, bind no one, and settle no litigation. Courts should not be required to spend their
time solemnly considering and deciding cases where no one could be bound and no interest
affected by such deliberation and decision. (Arroyo vs. Granada and Gentero, 18 Phil., 484.)
If the case cannot be filed against the defendant as we have pointed out, what then is the remedy of
the plaintiff under the circumstances? Is the case of the plaintiff beyond remedy? We believe that the
only way by which the plaintiff can bring the principal into this case or make it come under the courts
in this jurisdiction is to follow the procedure indicated in section 14, Rule 7, of the Rules of Court
concerning litigations involving foreign corporations. This rule says that if the defendant is a foreign
corporation and it has not designated an agent in the Philippines on whom service may be made in
case of litigation, such service may be made on any agent it may have in the Philippines. And in our
opinion the Westchester Fire Insurance Company of new York comes within the import of this rule
for even if it has not designated an agent as required by law, it has however a settling agent who
may serve the purpose. In other words, an action may be brought against said insurance company in
the Philippines and the process may be served on the defendant to give our courts the necessary
jurisdiction. This is the way we have pointed out in the case of General Corporation of the
Philippines and Mayon Investment Co. vs. Union Insurance Society of Canton Ltd. et al., (87 Phil.,
313).
In view of the foregoing, we are of the opinion and so hold that the lower court erred in holding the
defendant responsible for the loss or damage claimed in the complaint. And having arrived at this
conclusion, we do not deem it necessary to pass upon the other errors assigned by the appellant.
Wherefore, the decision appealed from is hereby reversed. The complaint is hereby dismissed, with
costs against the appellee.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Jugo,
JJ., concur.
G.R. No. 174697 July 8, 2010
CHAMBER OF REAL ESTATE AND BUILDERS' ASSOCIATIONS, INC. (CREBA), Petitioner,

vs.
ENERGY REGULATORY COMMISSION (ERC) and MANILA ELECTRIC COMPANY
(MERALCO), Respondents.
DECISION
BRION, J.:
This is a Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order and/or
Writ of Preliminary Injunction1 to nullify Section 2.6 of the Distribution Services and Open Access
Rules (DSOAR), promulgated by respondent Energy Regulatory Commission (ERC) on January 18,
2006. Petitioner Chamber of Real Estate and Builders’ Associations, Inc. asserts that Section 2.6 of
the DSOAR, which obligates certain customers to advance the amount needed to cover the
expenses of extending lines and installing additional facilities, is unconstitutional and contrary to
Republic Act No. 9136, otherwise known as "The Electric Power Industry Reform Act of 2001
(EPIRA)."
The Background Facts
The petitioner is a non-stock, non-profit corporation, organized under the laws of the Republic of the
Philippines, with principal office at 3/F CREBA Center, Don Alejandro Roces Avenue cor. South "A"
Street, Quezon City. It has almost 4,500 members, comprising of developers, brokers, appraisers,
contractors, manufacturers, suppliers, engineers, architects, and other persons or entities engaged
in the housing and real estate business.2
The ERC is a quasi-judicial and quasi-legislative regulatory body created under Section 38 of the
EPIRA, with office address at the Pacific Center Building, San Miguel Avenue, Ortigas Center, Pasig
City. It is an administrative agency vested with broad regulatory and monitoring functions over the
Philippine electric industry to ensure its successful restructuring and modernization, while, at the
same time, promoting consumer interest.3
Respondent Manila Electric Company (MERALCO) is a corporation organized under the laws of the
Republic of the Philippines, with principal office at Lopez Building, Ortigas Avenue, Pasig City. It is
engaged primarily in the business of power production, transmission, and distribution. It is the largest
distributor of electricity in the Philippines.4
Pursuant to its rule-making powers under the EPIRA, the ERC promulgated the Magna Carta for
Residential Electricity Consumers (Magna Carta), which establishes residential consumers’ rights to
have access to electricity and electric service, subject to the requirements set by local government
units and distribution utilities (DUs).5Article 14 of the Magna Carta pertains to the rights of
consumers to avail of extension lines or additional facilities. It also distinguishes between consumers
located within 30 meters from existing lines and those who are located beyond 30 meters; the latter
have the obligation to advance the costs of the requested lines and facilities, to wit:
Article 14. Right to Extension of Lines and Facilities.—A consumer located within thirty (30) meters
from the distribution utilities’ existing secondary low voltage lines, has the right to an extension of
lines or installation of additional facilities, other than a service drop, at the expense of the utility
inasmuch as said assets will eventually form part of the rate base of the private distribution utilities,
or will be sourced from the reinvestment funds of the electric cooperatives. However, if a prospective
customer is beyond the said distance, or his demand load requires that the utility extend lines and
facilities, the customer may initially fund the necessary expenditures.
Article 14 of the Magna Carta continues with a provision on how the costs advanced by the
residential end-user can be recovered:
To recover his aforementioned expenditures, the customer may either demand the issuance of a
notes payable from the distribution utility or refund at the rate of twenty-five (25) percent of the gross
distribution revenue derived for the calendar year, or, if available, the purchase of preferred shares.
Revenue derived from additional customers tapped directly to the poles and facilities so extended
shall be considered in determining the revenues derived from the extension of facilities.
The same article specifies that if a developer initially pays the cost of the extension lines but passes
it to the registered customer, the customer would still be entitled to recover the cost in the manner
provided under this article:
When a developer initially paid the cost of the extension of lines to provide electric service to a
specific property and incorporated these expenses in the cost thereof, and that property was
purchased and transferred in the name of the registered customer, the latter shall be entitled to the
refund of the cost of the extension of lines, and exercise the options for refund provided in this
article.
On January 18, 2006, the ERC modified this provision when it issued the DSOAR. Section 2.6.1
reiterates the old rule requiring consumers located beyond 30 meters from existing lines to advance
the costs of the requested lines and facilities. Section 2.6.2 likewise provides that the costs
advanced by consumers may be refunded at the rate of 25% of the annual gross distribution
revenue derived from all customers connected to the line extension. However, Section 2.6.2 amends
Article 14 of the Magna Carta by limiting the period for the refund to five years, whether or not the
amount advanced by the consumer is fully paid. Section 2.6 of the DSOAR decrees that:
2.6. MODIFICATIONS AND NEW PHYSICAL CONNECTIONS: RESIDENTIAL
2.6.1 RIGHT TO EXTENSION OF LINES AND FACILITIES – In accordance with the Magna
Carta, a residential End-user located within thirty (30) meters from the distribution utilities’
existing secondary low voltage lines has the right to an extension of lines or installation of
additional facilities, other than a service drop, at the expense of the utility. However, if a
prospective customer is beyond the said distance, the customer shall advance the amounts
necessary to cover the expenditures on the facilities beyond thirty (30) meters.
2.6.2 REFUND—To recover the aforementioned advanced payment, the customer may
either demand the issuance of a notes payable from the distribution utility or a refund at the
rate of twenty-five (25) percent of the gross distribution revenue derived from all customers
connected to the line extension for the calendar year until such amounts are fully refunded or
for five (5) years whichever period is shorter, or, if available, the purchase of preferred
shares. Revenue derived from additional customers tapped directly to the poles and facilities
so extended shall be considered in determining the revenues derived from the extension of
facilities.
Distribution Connection Assets paid for through advances from residential End-users shall be
deemed plant in service in the accounts of the DU. Unpaid advances shall be a reduction to plant in
service. If replacement becomes necessary at any time for any Distribution Connection Assets paid
for by residential End-users, the DU shall be solely responsible for the cost of such replacement
which shall become plant in service in the accounts of the DU, and shall not require another
advanced payment from the connected residential End-users unless the replacement is due to End-
user fault.
The petitioner alleged that the entities it represented applied for electrical power service, and
MERALCO required them to sign pro forma contracts that (1) obligated them to advance the cost of
the construction of new lines and other facilities and (2) allowed annual refunds at 25% of the gross
distribution revenue derived from the customer’s electric service, until the amount advanced is fully
paid, pursuant to Section 2.6 of the DSOAR.6
The petitioner seeks to nullify Section 2.6 of the DSOAR, on the following grounds: (1) it is
unconstitutional since it is oppressive and it violates the due process and equal protection clauses;
(2) it contravenes the provisions of the EPIRA; and (3) it violates the principle of unjust enrichment.7
Petitioner claims that Section 2.6 of the DSOAR is unconstitutional as it is oppressive to the affected
end-users who must advance the amount for the installation of additional facilities. Burdening
residential end-users with the installation costs of additional facilities defeats the objective of the law
– the electrification of residential areas – and contradicts the provisions of the legislative franchise,
requiring DUs to be financially capable of providing the distribution service. Moreover, the
questioned provision violates the equal protection clause since the difference in treatment between
end-users residing within 30 meters of the existing lines and those beyond 30 meters does not rest
on substantial distinctions.8
In addition, the petitioner alleges that the assailed provision contravenes Sections 2, 23, 41 and 43
of the EPIRA9which are geared towards ensuring the affordability of electric power and the protection
of consumers.10 Lastly, requiring consumers to provide the huge capital for the installation of the
facilities, which will be owned by distribution utilities such as MERALCO, results in unjust
enrichment.11
The Respondents’ Case
a. The ERC Position
Contradicting the petitioner’s arguments, the ERC avers that it issued Section 2.6 of the DSOAR as
an exercise of police power directed at promoting the general welfare. The rule seeks to address the
inequitable situation where the cost of an extension facility benefiting one or a few consumers is
equally shared by them.12
The ERC likewise asserts that the equal protection clause is observed since the distinction between
end-users residing within 30 meters of the existing lines and those beyond 30 meters is based on
real and substantial differences, namely: (1) proximity of end-user service drop to the main
distribution lines; (2) manner of checking status service; (3) system loss risk; (4) cost in installing the
facilities; and (5) additional risk posed by the possibility of the customer defaulting in his electric
service with the DU.13
The ERC also maintains that Section 2 of the DSOAR is consistent with Sections 2, 23, 41 and 43 of
the EPIRA. By not subjecting most consumers to the payment of installation costs benefitting
customers located beyond a reasonably-set boundary, the provision in question gives effect to the
EPIRA policy to ensure that the prices of electricity remain affordable, transparent, and reasonable
to the majority. The policy of accelerating the total electrification of the country is also served when
the residents of far-flung areas are given the option to apply for extension lines. This option is
subject only to the condition that the cost of the extension of existing lines is advanced by the end-
user, who will eventually be reimbursed; without such condition, businesses will be reluctant to
provide service connection in remote areas.14
Additionally, the ERC points out that the DSOAR provisions do not result in unjust enrichment since
the DUs do not stand to be materially benefited by the customers’ advances. The DUs have the
obligation to reimburse the customers the advances within five years, and whatever advances are
unpaid during the five-year period are recorded as reductions in "plant in service."15
Finally, it argues that petitioner lacks the standing to file the present suit since the petitioner is not an
end-user who will sustain a direct injury as a result of the issuance and implementation of the
DSOAR. The ERC likewise maintains the petition for certiorari must fail since petitioner fails to
impute grave abuse of discretion to the ERC.16
b. The MERALCO Position
MERALCO reiterates the defenses raised by the ERC. It also contends that the present petition does
not involve the ERC’s judicial and quasi-judicial functions so that a petition for certiorari is an
improper remedy. MERALCO likewise argues that the petition for certiorari, assuming it to be a
correct remedy, should be dismissed since the petitioner failed to observe the doctrine of hierarchy
of courts by filing an original petition with this Court.
On the merits, MERALCO points out that even if Section 2.6 of the DSOAR is struck down, the
provision in the Magna Carta, on the same point, would nevertheless require end-users located
beyond 30 meters from existing lines to advance the cost. The petitioner’s members are not also
end-users, but subdivision developers, brokers, and various entities who are not affected by the
questioned provision; if a developer would apply for electric service, the terms and conditions of the
service will not be governed by Section 2.6 of the DSOAR.17
MERALCO also elaborates on why the provision does not result in unjust enrichment and justifies
the distinction between end-users within the 30-meter limit and those located outside of this limit.
The DSOAR provides that the unpaid amounts that the end-users advanced for the electrical
facilities are not included in "plant in service." The total "plant in service" is the basis in fixing the
rates collected by the DU from all its customers. By having the end-users, located 30 meters away
from existing lines, advance the amount, this amount is no longer included in the rates passed on to
regular consumers. The DSOAR further limits the subsidies by regular consumers, by limiting the
amount to be recovered to 25% and to five years. Thus, if the costs of the lines are too great and the
revenues are too small, it is the end-user who would bear the cost and not the regular customers.18
The Issues
The petitioner summarizes the issues as follows:
Procedural Issues:
A. Whether petitioner can challenge the constitutionality of a quasi-legislative act (i.e., the
Rules) in a petition for certiorari under Rule 65 of the Rules of Court.
B. Whether the Honorable Supreme [Court] has original jurisdiction over this case.
C. Whether petitioner has legal standing to sue.

D. Whether petitioner is authorized to file this suit.
Substantive issues:
A. Whether Section 2.6 of the Rules violates the due process and equal protection clause of the
Constitution.
B. Whether Section 2.6 of the Rules violates R.A. No. 9136.
C. Whether Section 2.6 of the Rules violates the rule against unjust enrichment.
D. Whether Section 2.6 of the Rules is a valid exercise of police power.19
We resolve to dismiss the petition for its serious procedural and technical defects.
a. The Petitioner Has No Legal Standing
We do not see the petitioner as an entity with the required standing to assail the validity of Section
2.6 of the DSOAR.
Legal standing or locus standi refers to a party’s personal and substantial interest in a case, arising
from the direct injury it has sustained or will sustain as a result of the challenged governmental
action. Legal standing calls for more than just a generalized grievance. The term "interest" means a
material interest, an interest in issue affected by the governmental action, as distinguished from
mere interest in the question involved, or a mere incidental interest. Unless a person’s constitutional
rights are adversely affected by a statute or governmental action, he has no legal standing to
challenge the statute or governmental action.20
The petitioner expressly enumerates its members to be the following: developers, brokers,
appraisers, contractors, manufacturers, suppliers, engineers, architects, and other persons or
entities engaged in the housing and real estate business.21 It does not question the challenged
DSOAR provision as a residential end-user and it cannot because the challenged provision only
refers to the rights and obligations of DUs and residential end-users; neither the petitioner nor its
members are residential end-users. In fact, the DSOAR has separate provisions for the extension of
lines or installation of additional facilities for non-residential end-users, under its Section 2.7 entitled
"Modifications and New Connections: Non-Residential." Thus, neither the petitioner nor its members
can claim any injury, as residential end-users, arising from the challenged Section 2.6 of the
DSOAR, nor cite any benefit accruing to them as residential end-users that would result from the
invalidation of the assailed provision.
The petitioner meets the objection to its capacity to bring suit through the claim that subdivision
developers are directly affected by the assailed provision because MERALCO has asked them to
advance the cost of installing additional lines and facilities, in accordance with Section 2.6 of the
DSOAR.22 This claim is specious.
Section 1, Rule I of the Revised Rules and Regulations Implementing the Subdivision and
Condominium Buyer’s Protective Decree (PD 957) and Other Related Laws provides the minimum
design standards for subdivisions. These minimum standards include an electrical power supply,
described under subsection C(7) thus:
7. Electrical Power Supply System
Mandatory individual household connection to primary and/or alternate sources of power.
xxxx
Provision of street lighting per pole is mandatory at 50-meter distance and every other pole if
distance is less than 50 meters.
Thus, subdivision developers are obligated under these rules to include in their design an electrical
power supply system that would link individual households within their subdivision to primary and/or
alternate sources of power. This requirement is intended to protect the rights of prospective
subdivision homeowners,23 and exists regardless of the validity of Section 2.6 of the DSOAR.
In other words, the invalidation of Section 2.6 of the DSOAR would not permit subdivision
developers to renege from their duty to ensure power supply and to pass the costs of installing a
proper electrical power supply system to MERALCO. In this light, it is immaterial that MERALCO did
require certain developers to sign the Agreement for Extension of Lines And/Or Additional
Facilities24 as this was required under the provisions of the Magna Carta, not under the assailed
DSOAR provision that, in the first place, does not govern the relationship of subdivision developers
(who are not residential end-users) and MERALCO.
a. 1. No Transcendental Issue Involved
The petitioner cites instances when the Court, in the exercise of its discretion, waived the procedural
rule on standing in cases that raised issues of transcendental importance. We do not, however, view
the present case as one involving a matter of transcendental importance so that a waiver of the
locus standi rule should be recognized.
The Court, through Associate Justice Florentino P. Feliciano (now retired), provided the following
instructive guides as determinants in determining whether a matter is of transcendental importance:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific
interest in the questions being raised.25
In this case, the three determinants are glaringly absent. Public funds are not involved. The
allegations of constitutional and statutory violations of the public respondent agency are
unsubstantiated by facts and are mere challenges on the wisdom of the rules, a matter that will be
further discussed in this Decision. In addition, parties with a more direct and specific interest in the
questions being raised – the residential end-users – undoubtedly exist and are not included as
parties to the petition. As the Court did in Anak Mindanao Party-List Group v. Executive
Secretary,26 we cannot waive the rule on standing where the three determinants were not
established.
b. Rule 65 is both a Wrong
and Misapplied Remedy
The petitioner’s choice of remedy – a petition for certiorari under Rule 65 of the Rules of Court – is
an incorrect remedy.
Rule 65, Section 1 of the Rules of Court mandates that the remedy of certiorari is directed against a
tribunal, board, or officer exercising judicial or quasi-judicial functions:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
Judicial functions are exercised by a body or officer clothed with authority to determine what the law
is and what the legal rights of the parties are with respect to the matter in controversy.27 Quasi-
judicial function is a term that applies to the action or discretion of public administrative officers or
bodies given the authority to investigate facts or ascertain the existence of facts, hold hearings, and
draw conclusions from them as a basis for their official action using discretion of a judicial
nature.28 Thus, in Philnabank Employees Association v. Estanislao, we did not grant a petition for
certiorari against the Department Secretary who did not act in any judicial or quasi-judicial capacity
but merely promulgated the questioned implementing rules under the mandate of Republic Act No.
6971, the applicable law in this cited case.29
Contrary to Section 2, Rule III of the Rules of Court, the petitioner and its members are not even
parties who are aggrieved by the assailed DSOAR provision, as already discussed above. Even if
they had been properly aggrieved parties, the petition must still be dismissed for violation of yet
another basic principle applicable to Rule 65. This rule requires, for a petition for certiorari to be an
appropriate remedy, that there be no appeal or plain, speedy, and adequate remedy in the ordinary
course of law.30 Since the petitioner assails the validity of a rule or statute and seeks our declaration
that the rule is unconstitutional, a petition for declaratory relief under Section 1, Rule 63 of the Rules
of Court31 provides a remedy more appropriate than certiorari. 1avv phi1
Furthermore, the Court of Appeals and the Supreme Court have original concurrent jurisdiction over
petitions for certiorari; the rule on hierarchy of courts determines the venue of recourses to these
courts. In original petitions for certiorari, the Supreme Court will not directly entertain this special civil
action – as in the present case – unless the redress desired cannot be obtained elsewhere based on
exceptional and compelling circumstances justifying immediate resort to this Court.32
In the present case, the petitioner alleges that the constitutionality and legality of the assailed
provision are of "immense importance to the public"33 and are a "recipe for financial ruin of the
affected parties."34 Moreover, it maintains that its petition raises transcendental and weighty issues
that would merit the Honorable Court’s exercise of original jurisdiction.35 To support its position, it
cites the cases of the Senate of the Philippines v. Ermita36 and Ople v. Torres.37
Senate of the Philippines v. Ermita38 was a case for certiorari and prohibition, while our Decision in
Ople v. Torres39did not clearly state whether the case was filed as a petition for certiorari. But
granting that both cases were filed as petitions for certiorari, they prompted the Court to suspend its
rules of procedure as they involved clear violations of the Constitution which urgently needed to be
addressed. Moreover, they were unquestionably filed by the proper parties.
The petitioners in the Ermita case included the Philippine Senate, which assailed Executive Order
No. 464 for infringing on their prerogatives as legislators, to conduct inquiries in aid of
legislation.40 We had to immediately resolve this case since the implementation of the challenged
order had already resulted in the absence of officials invited to Senate hearings.
In the Ople case, Senator Blas F. Ople sought to invalidate Administrative Order No. 308, which
"establishes a system of identification that is all-encompassing in its scope, [and that] affects the life
and liberty of every Filipino citizen and foreign resident."41 The petition was based on two important
constitutional grounds: (1) usurpation of the power of Congress to legislate and (2) impermissible
intrusion into the citizenry’s protected zone of privacy.
In the present case, the petitioner cannot come before this Court using an incorrect remedy and
claim that it was oppressed, or that its rights to due process and equal protection have been violated
by an administrative issuance that does not even affect its rights and obligations. The writ of
certiorari is an extraordinary remedy that the Court issues only under closely defined grounds and
procedures that litigants and their lawyers must scrupulously observe. They cannot seek refuge
under the umbrella of this remedy on the basis of an undemonstrated claim that they raise issues of
transcendental importance, while at the same time flouting the basic ground rules for the remedy’s
grant.42
These conclusions render any further discussion of the improperly raised substantive issues
unnecessary.
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious procedural and
technical defects. Costs against the petitioner.
SO ORDERED.
ARTURO D. BRIO
EN BANC
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the "Marines") to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"), the Chief of the PNP
and the Secretary of the Interior and Local Government were tasked to execute and implement the
said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed
the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.2 Task Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief.3 In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased
police patrols.4 The President further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist
the PNP in preventing or suppressing criminal or lawless violence.6 Finally, the President declared
that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose
training, skill, discipline and firepower prove well-above the present capability of the local police
alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by
active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or
eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates
whose members include those that are well-trained, disciplined and well-armed active or former
PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional
Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve
the internal security of the state against insurgents and other serious threat to national
security, although the primary responsibility over Internal Security Operations still rests upon
the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile
crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept
requires the military and police to work cohesively and unify efforts to ensure a focused,
effective and holistic approach in addressing crime prevention. Along this line, the role of the
military and police aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units
are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force

"TULUNGAN" shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations
and the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY,

EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT
WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3
OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN

A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE

MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS

UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY
BE UNDER THE CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of
the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since the same involves a political
question; that the organization and conduct of police visibility patrols, which feature the team-up of
one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in
the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2)
Whether or not the President’s factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in
joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise
the issues in the petition. Second, the President did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the
Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged.13 The term "interest" means a material interest, an interest in issue affected by
the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.14 The gist of the question of standing is whether a party alleges "such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the
rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This
is too general an interest which is shared by other groups and the whole citizenry. Based on the
standards above-stated, the IBP has failed to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the
interest of the National President of the IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action. To be sure, members of the BAR, those in
the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has
duly authorized the National President to file the petition, has not shown any specific injury which it
has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any form of injury as a result of the
operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested
or that their civil liberties have been violated by the deployment of the Marines. What the IBP
projects as injurious is the supposed "militarization" of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than good in the long run. Not only is
the presumed "injury" not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the
future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.16 In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to
the people.17 Thus, when the issues raised are of paramount importance to the public, the Court may
brush aside technicalities of procedure.18 In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under constant threat
and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao
insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In
this regard, the IBP admits that the deployment of the military personnel falls under the Commander-
in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically,
the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion.
What the IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to
warrant the calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the
factual basis for said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and
the extent of judicial review. But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may warrant a creative approach that
goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call out the armed forces, the Court is of the
view that the power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the ground do not show that there exist a
state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the
late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as protector of the peace.
[Rossiter, The American Presidency]. The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the President’s power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue involved is not susceptible to review
by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for

court review.22 It pertains to issues which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for resolution. One class of
cases wherein the Court hesitates to rule on are "political questions." The reason is that political
questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act
or measure being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law and the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government."
Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action
by a particular branch of government or to the people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on the surface
of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarassment from multifarious pronouncements by various departments on
the one question."
The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law.
which are legally demandable and enforceable, and to determine whether or not there has been a
instrumentality of the Government."25 Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this Court to review.
When the grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the
problem being one of legality or validity, not its wisdom.26 Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court.27 When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.29 Under this definition, a court is
without power to directly decide matters over which full discretionary authority has been delegated.
But while this Court has no power to substitute its judgment for that of Congress or of the President,
it may look into the question of whether such exercise has been made in grave abuse of
discretion.30A showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable
controversy.31
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is
no evidence to support the assertion that there exist no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition that grave abuse was committed because
the power to call was exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Court’s duty of "purposeful hesitation"32 before
declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which
reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President’s action to call out the armed forces.
The distinction places the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification. Expressio unius est exclusio alterius. Where the
terms are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.33 That the intent of the Constitution is exactly what its letter says, i.e., that
the power to call is fully discretionary to the President, is extant in the deliberation of the
Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to
suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he
can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ
of habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises this
lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled
by the first sentence: "The President may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion." So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can
be handled by the First Sentence: "The President....may call out such Armed Forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ
of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.34
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because
it is considered as the lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms, and thus
necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend
the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1)
there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions
are not required in the case of the power to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or suppress
lawless violence, invasion or rebellion." The implication is that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the President might decide
that there is a need to call out the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property. Indeed,
the decision to call out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the
petitioner can show that the exercise of such discretion was gravely abused, the President’s
exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces.
In his Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store robberies,
holdups, kidnappings and carnappings continue to occur in Metro Manila..."35 We do not doubt the
veracity of the President’s assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law enforcement and in the exercise of this
constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the Marines,
the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for
civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident in the provisions of
the LOI itself, which sufficiently provides the metes and bounds of the Marines’ authority. It is
noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the
real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures.38 It is their responsibility to direct and manage the
deployment of the Marines.39 It is, likewise, their duty to provide the necessary equipment to the
Marines and render logistical support to these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority. Moreover, the deployment
of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither
does it amount to an "insidious incursion" of the military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution.41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case,
it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he
does not exercise any authority or control over the same. Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no "insidious incursion" of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally "civil" functions.
As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military
aid has been rendered, exemplifying the activities that bring both the civilian and the military together
in a relationship of cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.59 What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force
for domestic purposes has persisted,60 and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by civilian law enforcement officers is
allowed under circumstances similar to those surrounding the present deployment of the Philippine
Marines. Under the Posse Comitatus Act61 of the US, the use of the military in civilian law
enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act
states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act
of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or
both.62
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel,
the US courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in
such a manner that the military personnel subjected the citizens to the exercise of military power
which was regulatory, proscriptive, or compulsory64 George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate
the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of
those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied)
1âw phi 1
Even if the Court were to apply the above rigid standards to the present case to determine whether
there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory, proscriptive,
or compulsory military power. First, the soldiers do not control or direct the operation. This is evident
from Nos. 6,66 8(k)67 and 9(a)68of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)69 of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition. And last, these soldiers apply no coercive force. The materials or equipment
issued to them, as shown in No. 8(c)70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power,
the deployment of a handful of Philippine Marines constitutes no impermissible use of military power
for civilian law enforcement.71
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties
of the people, this Court is not inclined to overrule the President’s determination of the factual basis
for the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen
has complained that his political or civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the
joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people
feel secure in their homes and in the streets, not when the shadows of violence and anarchy
constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.
SEPARATE CONCURRING OPINION
CARPIO, J.:
The Case
This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of
respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005,
warning radio and television stations against airing taped conversations allegedly between President
Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio
Garcillano (Garcillano)1 under pain of suspension or revocation of their airwave licenses.
The Facts
On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo
winner in the 2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes,
1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June
2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed
"rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential
spokesperson Ignacio Bunye (Bunye) held a press conference in Malacañang Palace, where he
played before the presidential press corps two compact disc recordings of conversations between a
woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed
that the contents of the second compact disc had been "spliced" to make it appear that President
Arroyo was talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact
discs was not President Arroyo’s after all.3 Meanwhile, other individuals went public, claiming
possession of the genuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the National
Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible
violation of Republic Act No. 4200 or the Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio and television stations that airing
the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005, NTC officers met with officers of the broadcasters
group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC
and KBP issued a joint press statement expressing commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify
the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the
following grounds: (1) respondents’ conduct violated freedom of expression and the right of the
people to information on matters of public concern under Section 7, Article III of the Constitution, and
(2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci
Tapes.
In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no
standing to litigate and (2) the petition fails to meet the case or controversy requirement in
constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11
June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the
lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent
material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television
stations.
In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that
his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to
maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June
2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the
Anti-Wiretapping Law, making it a "cleverly disguised x x x gag order."
ISSUE
The principal issue for resolution is whether the NTC warning embodied in the press release of 11
June 2005 constitutes an impermissible prior restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11
June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from
enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the
present case, any citizen has the right to bring suit to question the constitutionality of a government
action in violation of freedom of expression, whether or not the government action is directed at such
citizen. The government action may chill into silence those to whom the action is directed. Any
citizen must be allowed to take up the cudgels for those who have been cowed into inaction because
freedom of expression is a vital public right that must be defended by everyone and anyone.
Freedom of expression, being fundamental to the preservation of a free, open and democratic
society, is of transcendental importance that must be defended by every patriotic citizen at the
earliest opportunity. We have held that any concerned citizen has standing to raise an issue
of transcendental importance to the nation,7 and petitioner in this present petition raises such issue.
2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment
Freedom of expression is the foundation of a free, open and democratic society. Freedom of
expression is an indispensable condition8 to the exercise of almost all other civil and political rights.
No society can remain free, open and democratic without freedom of expression. Freedom of
expression guarantees full, spirited, and even contentious discussion of all social, economic and
political issues. To survive, a free and democratic society must zealously safeguard freedom of
expression.
Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of
expression allows citizens to make informed choices of candidates for public office. Freedom of
expression crystallizes important public policy issues, and allows citizens to participate in the
discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the
clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression
allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized
groups who otherwise would not be heard by government. Freedom of expression provides a
civilized way of engagement among political, ideological, religious or ethnic opponents for if one
cannot use his tongue to argue, he might use his fist instead.
Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing,
conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the
freedom of others to express to one and all what they favor or disfavor. It is the free expression for
the ideas we love, as well as the free expression for the ideas we hate.9 Indeed, the function of
freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of an idea.10
Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of
expression:
No law shall be passed abridging the freedom of speech, of expression, or the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.
Thus, the rule is that expression is not subject to any prior restraint or censorship because the
Constitution commands that freedom of expression shall not be abridged. Over time, however,
courts have carved out narrow and well defined exceptions to this rule out of necessity.
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to
only four categories of expression, namely: pornography,11 false or misleading
advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other
expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal
Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow
and well understood exceptions, does not countenance governmental control over the content of
messages expressed by private individuals."15
Expression not subject to prior restraint is protected expression or high-value expression. Any
content-based prior restraint on protected expression is unconstitutional without
exception. A protected expression means what it says – it is absolutely protected from censorship.
Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws,
on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to
the Constitution.
Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the
expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior
restraint is directed at protected expression, courts will strike down the restraint as unconstitutional
because there can be no content-based prior restraint on protected expression. The analysis thus
turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at
protected expression, that is, those not falling under any of the recognized categories of unprotected
expression.
If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even
if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or
manner of the expression in public places16 without any restraint on the content of the expression.
Courts will subject content-neutral restraints to intermediate scrutiny.17
An example of a content-neutral restraint is a permit specifying the date, time and route of a rally
passing through busy public streets. A content-neutral prior restraint on protected expression which
does not touch on the content of the expression enjoys the presumption of validity and is thus
enforceable subject to appeal to the courts.18 Courts will uphold time, place or manner restraints if
they are content-neutral, narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of expression.19
In content-neutral prior restraint on protected speech, there should be no prior restraint on the
content of the expression itself. Thus, submission of movies or pre-taped television programs to a
government review board is constitutional only if the review is for classification and not for censoring
any part of the content of the submitted materials.20 However, failure to submit such materials to the
review board may be penalized without regard to the content of the materials.21 The review board
has no power to reject the airing of the submitted materials. The review board’s power is only to
classify the materials, whether for general patronage, for adults only, or for some other classification.
The power to classify expressions applies only to movies and pre-taped television programs22 but not
to live television programs. Any classification of live television programs necessarily entails prior
restraint on expression.
Expression that may be subject to prior restraint is unprotected expression or low-value

expression. By definition, prior restraint on unprotected expression is content-based23 since the
restraint is imposed because of the content itself. In this jurisdiction, there are currently only four
categories of unprotected expression that may be subject to prior restraint. This Court recognized
false or misleading advertisement as unprotected expression only in October 2007.24
Only unprotected expression may be subject to prior restraint. However, any such prior
restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is
presumed unconstitutional. Second,the government bears a heavy burden of proving the
constitutionality of the prior restraint.25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected
expression.26 The government action will be sustained if there is a compelling State interest, and
prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall
be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression than subsequent punishment.
Although subsequent punishment also deters expression, still the ideas are disseminated to the
public. Prior restraint prevents even the dissemination of ideas to the public.
While there can be no prior restraint on protected expression, such expression may be subject to
subsequent punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot
be subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey
turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing
"shows which offend any race or religion" cannot be used to justify prior restraint on religious
expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such
offensive shows.29
Similarly, if the unprotected expression does not warrant prior restraint, the same expression may
still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of
unprotected expression. However, if the expression cannot be subject to the lesser restriction of
subsequent punishment, logically it cannot also be subject to the more severe restriction of prior
restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to
subsequent punishment in this jurisdiction,30 such expression cannot be subject to prior restraint.
If the unprotected expression warrants prior restraint, necessarily the same expression is subject to
subsequent punishment. There must be a law punishing criminally the unprotected expression
before prior restraint on such expression can be justified. The legislature must punish the
unprotected expression because it creates a substantive evil that the State must prevent. Otherwise,
there will be no legal basis for imposing a prior restraint on such expression.
The prevailing test in this jurisdiction to determine the constitutionality of government action
imposing prior restraint on three categories of unprotected expression – pornography,31 advocacy of
imminent lawless action, and danger to national security - is the clear and present danger test.32 The
expression restrained must present a clear and present danger of bringing about a substantive evil
that the State has a right and duty to prevent, and such danger must be grave and imminent.33
Prior restraint on unprotected expression takes many forms - it may be a law, administrative
regulation, or impermissible pressures like threats of revoking licenses or withholding of
benefits.34 The impermissible pressures need not be embodied in a government agency regulation,
but may emanate from policies, advisories or conduct of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC that the airing or
broadcasting of the Garci Tapes by radio and television stations is a "cause for the
suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio
and television stations. The NTC warning, embodied in a press release, relies on two grounds. First,
the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions
of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second,
the Garci Tapes have not been authenticated, and subsequent investigation may establish that the
tapes contain false information or willful misrepresentation.
Specifically, the NTC press release contains the following categorical warning:
Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television networks
owners/operators that the conditions of the authorizations and permits issued to them by
Government like the Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use its stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it has come to the attention of the
Commission that certain personalities are in possession of alleged taped conversation which
they claim, (sic) involve the President of the Philippines and a Commissioner of the
COMELEC regarding their supposed violation of election laws. These personalities have
admitted that the taped conversations are product of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be
said at this time that the tapes contain an accurate or truthful representation of what was
recorded therein, (sic) it is the position of the Commission that the continuous airing or
broadcast of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional
Authority and/or Certificate of Authority issued to these radio and television stations.
If it has been (sic) subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations issued to the said
companies. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression
that may be subject to prior restraint. The NTC does not specify what substantive evil the State
seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim
that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil,
of grave and imminent character, that the State has a right and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes
constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC
press release, and even up to now, the parties to the conversations in the Garci Tapes have not
complained that the wire-tapping was without their consent, an essential element for violation of the
Anti-Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that
played and released to media the Garci Tapes containing the alleged "spliced" conversation
between President Arroyo and Commissioner Garcillano. There is also the issue of whether
a wirelesscellular phone conversation is covered by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes
constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even
given an opportunity to be heard by the NTC. The NTC did not observe basic due process as
mandated in Ang Tibay v. Court of Industrial Relations.36
The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may
constitute "false information and/or willful misrepresentation." However, the NTC does not claim that
such possible false information or willful misrepresentation constitutes misleading commercial
advertisement. In the United States, false or deceptive commercial speech is categorized as
unprotected expression that may be subject to prior restraint. Recently, this Court upheld the
constitutionality of Section 6 of the Milk Code requiring the submission to a government screening
committee of advertising materials for infant formula milk to prevent false or deceptive claims to the
public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or
misleading commercial advertisement.
The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The
NTC also concedes that only "after a prosecution or appropriate investigation" can it be established
that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC
admits that it does not even know if the Garci Tapes contain false information or willful
misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it
is directed at the message of the Garci Tapes. The NTC’s claim that the Garci Tapes might contain
"false information and/or willful misrepresentation," and thus should not be publicly aired, is
an admission that the restraint is content-based.
5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of
the four existing categories of unprotected expression recognized in this jurisdiction. The airing of
the Garci Tapes is essentially a political expression because it exposes that a presidential candidate
had allegedly improper conversations with a COMELEC Commissioner right after the close of voting
in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public
discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject
to prior restraint. Public discussion on the credibility of the electoral process is one of the highest
political expressions of any electorate, and thus deserves the utmost protection. If ever there is a
hierarchy of protected expressions, political expression would occupy the highest rank,38 and among
different kinds of political expression, the subject of fair and honest elections would be at the top. In
any event, public discussion on all political issues should always remain uninhibited, robust and wide
open.
The rule, which recognizes no exception, is that there can be no content-based prior restraint
on protected expression. On this ground alone, the NTC press release is unconstitutional. Of
course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the
security of the State, the public airing of the tape becomes unprotected expression that may be
subject to prior restraint. However, there is no claim here by respondents that the subject matter of
the Garci Tapes involves national security and publicly airing the tapes would endanger the security
of the State.39
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint
on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any
law, and that includes anti-wiretapping laws, curtailing freedom of expression.40 The only exceptions
to this rule are the four recognized categories of unprotected expression. However, the content of
the Garci Tapes does not fall under any of these categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci
Tapes is a matter of important public concern. The Constitution guarantees the people’s right to
information on matters of public concern.41 The remedy of any person aggrieved by the public airing
of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the
commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available
in case of violation of the Anti-Wiretapping Law.
The present case involves a prior restraint on protected expression. Prior restraint on protected
expression differs significantly from subsequent punishment of protected expression. While there
can be no prior restraint on protected expression, there can be subsequent punishment for protected
expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on
the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual
violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on expression. The charter of the
NTC does not vest NTC with any content-based censorship power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected expression that can never be subject
to prior restraint. However, even assuming for the sake of argument that the airing of the Garci
Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the
factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger
of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the
prior restraint.
Any order imposing prior restraint on unprotected expression requires prior adjudication by the
courts on whether the prior restraint is constitutional. This is a necessary consequence from the
presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts
as a valid prior restraint, government agencies cannot implement outright such prior restraint
because such restraint is presumed unconstitutional at inception.
As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position,
transmitter wattage, and location of radio and television stations, but not the content of the
broadcasts. Such content-neutral prior restraint may make operating radio and television stations
more costly. However, such content-neutral restraint does not restrict the content of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity
Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action
imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy
burden to prove that the NTC action is constitutional. The Government has failed to meet this
burden.
In their Comment, respondents did not invoke any compelling State interest to impose prior restraint
on the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio
and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program
standards. Respondents have not explained how and why the observance by radio and television
stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State
interest justifying prior restraint on the public airing of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject
to criminal prosecution after the violation is committed. Respondents have not explained why there is
a need in the present case to impose prior restraint just to prevent a possible future violation of the
Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping
Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security
of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may
possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and
endless censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the airwave permits of radio and television
stations constitutes impermissible pressure amounting to prior restraint on protected expression.
Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the
same: the threat freezes radio and television stations into deafening silence. Radio and television
stations that have invested substantial sums in capital equipment and market development suddenly
face suspension or cancellation of their permits. The NTC threat is thus real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a
general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law." The NTC warning to radio and television stations not
to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a
prior restraint on constitutionally protected expression.
In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government
threats to close down mass media establishments that refused to comply with government
prescribed "standards" on news reporting following the declaration of a State of National Emergency
by President Arroyo on 24 February 2006. The Court described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do not
follow the standards — and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
— we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out
for media coverage during times when the national security is threatened.44 (Emphasis
supplied)
The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of
expression. The Court ruled that "the imposition of standards on media or any form of prior restraint
on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL."45
The history of press freedom has been a constant struggle against the censor whose weapon is the
suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the
weapon of the censor. The NTC warning is a classic form of prior restraint on protected
expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before
the American Declaration of Independence in 1776, William Blackstone had already written in
his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47
Although couched in a press release and not in an administrative regulation, the NTC threat to
suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and
television stations will fall silent and die. The NTC press release does not seek to advance a
legitimate regulatory objective, but to suppress through coercion information on a matter of vital
public concern.
9. Conclusion
In sum, the NTC press release constitutes an unconstitutional prior restraint on protected
expression. There can be no content-based prior restraint on protected expression. This rule has no
exception.
I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release
dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the
NTC from enforcing the same.
G.R. No. 138298 November 29, 2000
RAOUL B. DEL MAR, petitioner,

vs.
PHILIPPINE AMUSEMENT AND GAMING CORPORATION, BELLE JAI-ALAI CORPORATION,
FILIPINAS GAMING ENTERTAINMENT TOTALIZATOR CORPORATION, respondents.
x-----------------------x
G.R. No. 138982 November 29, 2000
FEDERICO S. SANDOVAL II and MICHAEL T. DEFENSOR, petitioners,

vs.
PHILIPPINE AMUSEMENT AND GAMING CORPORATION, respondent.
JUAN MIGUEL ZUBIRI, intervenor.
DECISION
PUNO, J.:
These two consolidated petitions concern the issue of whether the franchise granted to the
Philippine Amusement and Gaming Corporation (PAGCOR) includes the right to manage and
operate jai-alai.
First, we scour the significant facts. The Philippine Amusement and Gaming Corporation is a
government-owned and controlled corporation organized and existing under Presidential Decree No.
1869 which was enacted on July 11, 1983. Pursuant to Sections 1 and 10 of P.D. No. 1869,
respondent PAGCOR requested for legal advice from the Secretary of Justice as to whether or not it
is authorized by its Charter to operate and manage jai-alai frontons in the country. In its Opinion No.
67, Series of 1996 dated July 15, 1996, the Secretary of Justice opined that "the authority of
PAGCOR to operate and maintain games of chance or gambling extends to jai-alai which is a form
of sport or game played for bets and that the Charter of PAGCOR amounts to a legislative
franchise for the purpose."1 Similar favorable opinions were received by PAGCOR from the Office of
the Solicitor General per its letter dated June 3, 1996 and the Office of the Government Corporate
Counsel under its Opinion No. 150 dated June 14, 1996.2 Thus, PAGCOR started the operation of
jai-alai frontons.
On May 6, 1999, petitioner Raoul B. del Mar initially filed in G.R. No. 138298 a Petition for
Prohibition to prevent respondent PAGCOR from managing and/or operating the jai-alai or Basque
pelota games, by itself or in agreement with Belle Corporation, on the ground that the controverted
act is patently illegal and devoid of any basis either from the Constitution or PAGCOR’s own Charter.
However, on June 17, 1999, respondent PAGCOR entered into an Agreement with private
respondents Belle Jai Alai Corporation (BELLE) and Filipinas Gaming Entertainment Totalizator
Corporation (FILGAME) wherein it was agreed that BELLE will make available to PAGCOR the
required infrastructure facilities including the main fronton, as well as provide the needed funding for
jai-alai operations with no financial outlay from PAGCOR, while PAGCOR handles the actual
management and operation of jai-alai.3
Thus, on August 10, 1999, petitioner Del Mar filed a Supplemental Petition for
Certiorari questioning the validity of said Agreement on the ground that PAGCOR is without
jurisdiction, legislative franchise, authority or power to enter into such Agreement for the opening,
establishment, operation, control and management of jai-alai games.
A little earlier, or on July 1, 1999, petitioners Federico S. Sandoval II and Michael T. Defensor filed
a Petition for Injunction, docketed as G.R. No. 138982, which seeks to enjoin respondent
PAGCOR from operating or otherwise managing the jai-alai or Basque pelota games by itself or in
joint venture with Belle Corporation, for being patently illegal, having no basis in the law or the
Constitution, and in usurpation of the authority that properly pertains to the legislative branch of the
government. In this case, a Petition in Intervention was filed by Juan Miguel Zubiri alleging that the
operation by PAGCOR of jai-alai is illegal because it is not included in the scope of PAGCOR’s
franchise which covers only games of chance.
Petitioners Raoul B. del Mar, Federico S. Sandoval II, Michael T. Defensor, and intervenor Juan
Miguel Zubiri, are suing as taxpayers and in their capacity as members of the House of
Representatives representing the First District of Cebu City, the Lone Congressional District of
Malabon-Navotas, the Third Congressional District of Quezon City, and the Third Congressional
District of Bukidnon, respectively.
The bedrock issues spawned by the petitions at bar are:
G.R. No. 138298
Petitioner Del Mar raises the following issues:
I. The respondent PAGCOR has no jurisdiction or legislative franchise or acted with grave
abuse of discretion, tantamount to lack or excess of jurisdiction, in arrogating unto itself the
authority or power to open, pursue, conduct, operate, control and manage jai-alai game
operations in the country.
II. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x in executing its

agreement with co-respondents Belle and Filgame for the conduct and management of jai-
alai game operations, upon undue reliance on an opinion of the Secretary of Justice.
III. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x in entering into a

partnership, joint venture or business arrangement with its co-respondents Belle and
Filgame, through their agreement x x x. The Agreement was entered into through manifest
partiality and evident bad faith (Sec. 3 (e), RA 3019), thus manifestly and grossly
disadvantageous to the government [Anti-Graft and Corrupt Practices Act, RA 3019, Sec. 3
(g)].
IV. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to award to its

co-respondents Belle and Filgame the right to avail of the tax benefits which, by law, inures
solely and exclusively to PAGCOR itself.
V. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to cause the

disbursement of funds for the illegal establishment, management and operation of jai-alai
game operations.
VI. x x x Respondent PAGCOR has equally no jurisdiction or authority x x x to award or grant

authority for the establishment, management and operation of off-fronton betting stations or
bookies.
VII. The respondent PAGCOR has no jurisdiction or authority x x x in awarding unto its co-
respondents Belle and Filgame, without public bidding, the subject agreement.
In defense, private respondents BELLE and FILGAME assert:
1. The petition states no cause of action and must be dismissed outright;
2. The petitioner has no cause of action against the respondents, he not being a real party in
interest;
3. The instant petition cannot be maintained as a taxpayer suit, there being no illegal
disbursement of public funds involved;
4. The instant petition is essentially an action for quo warranto and may only be commenced
by the Solicitor General;
5. The operation of jai-alai is well within PAGCOR’s authority to operate and maintain.
PAGCOR’s franchise is intended to be wide in its coverage, the underlying considerations
being, that: (1) the franchise must be used to integrate all gambling operations in one
corporate entity (i.e. PAGCOR); and (2) it must be used to generate funds for the
government to support its social impact projects;
6. The agreement executed by, between and among PAGCOR, BJAC and FILGAME is
outside the coverage of existing laws requiring public bidding.
Substantially the same defenses were raised by respondent PAGCOR in its Comment.
G.R. No. 138982
Petitioners contend that:
I. The operation of jai-alai games by PAGCOR is illegal in that:
1) the franchise of PAGCOR does not include the operation of jai-alai since jai-alai is a prohibited
activity under the Revised Penal Code, as amended by P.D. No. 1602 which is otherwise known as
the Anti-Gambling Law;
2) jai-alai is not a game of chance and therefore cannot be the subject of a PAGCOR franchise.
II. A franchise is a special privilege that should be construed strictly against the grantee.
III. To allow PAGCOR to operate jai-alai under its charter is tantamount to a license to PAGCOR to
legalize and operate any gambling activity.
In its Comment, respondent PAGCOR avers that:
1. An action for injunction is not among the cases or proceedings originally cognizable by the
Honorable Supreme Court, pursuant to Section 1, Rule 56 of the 1997 Rules of Civil
Procedure.
2. Assuming, arguendo, the Honorable Supreme Court has jurisdiction over the petition, the
petition should be dismissed for failure of petitioners to observe the doctrine on hierarchy of
courts.
3. x x x Petitioners have no legal standing to file a taxpayer’s suit based on their cause of
action nor are they the real parties-in-interest entitled to the avails of the suit.
4. Respondent’s franchise definitely includes the operation of jai-alai.
5. Petitioners have no right in esse to be entitled to a temporary restraining order and/or to

be protected by a writ of preliminary injunction.
The Solicitor General claims that the petition, which is actually an action for quo warranto under
Rule 66 of the Rules of Court, against an alleged usurpation by PAGCOR of a franchise to operate
jai alai, should be dismissed outright because only the Solicitor General or public prosecutor can file
the same; that P.D. No. 1869, the Charter of PAGCOR, authorizes PAGCOR to regulate and
operate games of chance and skill which include jai-alai; and that P.D. No. 1602 did not outlaw jai-
alai but merely provided for stiffer penalties to illegal or unauthorized activities related to jai-alai and
other forms of gambling.
We shall first rule on the important procedural issues raised by the respondents.
Respondents in G.R. No. 138982 contend that the Court has no jurisdiction to take original
cognizance of a petition for injunction because it is not one of those actions specifically mentioned in
Section 1 of Rule 56 of the 1997 Rules of Civil Procedure. Moreover, they urge that the petition
should be dismissed for failure of petitioners to observe the doctrine on hierarchy of courts.
It is axiomatic that what determines the nature of an action and hence, the jurisdiction of the court,
are the allegations of the pleading and the character of the relief sought.4 A cursory perusal of the
petition filed in G.R. No. 138982 will show that it is actually one for Prohibition under Section 2 of
Rule 65 for it seeks to prevent PAGCOR from managing, maintaining and operating jai-alai games.
Even assuming, arguendo, that it is an action for injunction, this Court has the discretionary power to
take cognizance of the petition at bar if compelling reasons, or the nature and importance of the
issues raised, warrant the immediate exercise of its jurisdiction.5 It cannot be gainsaid that the issues
raised in the present petitions have generated an oasis of concern, even days of disquiet in view of
the public interest at stake. In Tano, et al. vs. Socrates, et al.,6 this Court did not hesitate to treat a
petition for certiorari and injunction as a special civil action for certiorari and prohibition to resolve an
issue of far-reaching impact to our people. This is in consonance with our case law now accorded
near religious reverence that rules of procedure are but tools designed to facilitate the attainment of
justice such that when its rigid application tends to frustrate rather than promote substantial justice,
this Court has the duty to suspend their operation.7
Respondents also assail the locus standi or the standing of petitioners to file the petitions at bar as
taxpayers and as legislators. First, they allege that petitioners have no legal standing to file a
taxpayer’s suit because the operation of jai-alai does not involve the disbursement of public funds.
Respondents' stance is not without oven ready legal support. A party suing as a taxpayer must
specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised
by taxation.8 In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement
of public funds,9 or that public money is being deflected to any improper purpose,10 or where
petitioners seek to restrain respondent from wasting public funds through the enforcement of an
invalid or unconstitutional law.11
In the petitions at bar, the Agreement entered into between PAGCOR and private respondents
BELLE and FILGAME will show that all financial outlay or capital expenditure for the operation of jai-
alai games shall be provided for by the latter. Thus, the Agreement provides, among others, that:
PAGCOR shall manage, operate and control the jai-alai operation at no cost or financial risk to it
(Sec. 1[A][1]); BELLE shall provide funds, at no cost to PAGCOR, for all capital expenditures (Sec.
1[B][1]); BELLE shall make available to PAGCOR, at no cost to PAGCOR, the use of the integrated
nationwide network of on-line computerized systems (Sec. 1[B][2]); FILGAME shall make available
for use of PAGCOR on a rent-free basis the jai-alai fronton facilities (Sec. 1 [C][1]); BELLE &
FILGAME jointly undertake to provide funds, at no cost to PAGCOR, for pre-operating expenses and
working capital (Sec. 1 [D][1]); and that BELLE & FILGAME will provide PAGCOR with goodwill
money in the amount of ₱ 200 million (Sec. 1 [D][2]). In fine, the record is barren of evidence that the
operation and management of jai-alai by the PAGCOR involves expenditure of public money.
Be that as it may, in line with the liberal policy of this Court on locus standi when a case involves an
issue of overarching significance to our society,12 we find and so hold that as members of the House
of Representatives, petitioners have legal standing to file the petitions at bar. In the instant cases,
petitioners complain that the operation of jai-alai constitutes an infringement by PAGCOR of the
legislature’s exclusive power to grant franchise. To the extent the powers of Congress are impaired,
so is the power of each member thereof, since his office confers a right to participate in the exercise
of the powers of that institution, so petitioners contend. The contention commands our concurrence
for it is now settled that a member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his office.13 As
presciently stressed in the case of Kilosbayan, Inc., viz:
"We find the instant petition to be of transcendental importance to the public. The issues it raised are
of paramount public interest and of a category even higher than those involved in many of the
aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the
billions in pesos it is expected to raise. The legal standing then of the petitioners deserves
recognition x x x."
After hurdling the threshold procedural issues, we now come to the decisive substantive issue of
whether PAGCOR's legislative franchise includes the right to manage and operate jai-alai.14 The
issue is of supreme significance for its incorrect resolution can dangerously diminish the plenary
legislative power of Congress, more especially its exercise of police power to protect the morality of
our people. After a circumspect consideration of the clashing positions of the parties, we hold that
the charter of PAGCOR does not give it any franchise to operate and manage jai-alai.
FIRST. A "franchise" is a special privilege conferred upon a corporation or individual by a

government duly empowered legally to grant it.15 It is a privilege of public concern which cannot be
exercised at will and pleasure, but should be reserved for public control and administration, either
by the government directly, or by public agents, under such conditions and regulations as the
government may impose on them in the interest of the public.16 A franchise thus emanates from a
sovereign power17 and the grant is inherently a legislative power. It may, however, be
derived indirectly from the state through an agency to which the power has been clearly and
validly delegated.18 In such cases, Congress prescribes the conditions on which the grant of a
franchise may be made.19 Thus, the manner of granting the franchise, to whom it may be granted,
the mode of conducting the business, the character and quality of the service to be rendered and
the duty of the grantee to the public in exercising the franchise are almost always defined in clear
and unequivocal language. In the absence of these defining terms, any claim to a legislative
franchise to operate a game played for bets and denounced as a menace to morality ought to
be rejected.
SECOND. A historical study of the creation, growth and development of PAGCOR will readily show
that it was never given a legislative franchise to operate jai-alai.
(2.a) Before the creation of PAGCOR, a 25-year right to operate jai-alai in Manila was given by
President Marcos to the Philippine Jai-Alai and Amusement Corporation then controlled by his
in-laws, the Romualdez family. The franchise was granted on October 16, 1975 thru P.D. No.
810 issued by President Marcos in the exercise of his martial law powers. On that very date, the
25-year franchise of the prior grantee expired and was not renewed. A few months before, President
Marcos had issued P.D. No. 771 dated August 20, 1975, revoking the authority of local government
units to issue jai-alai franchises. By these acts, the former President exercised complete control of
the sovereign power to grant franchises.
(2.b) Almost one year and a half after granting the Philippine Jai-Alai and Amusement Corporation
a 25-year franchise to operate jai-alai in Manila, President Marcos created PAGCOR on January 1,
1977 by issuing P.D. No. 1067-A. The decree is entitled "Creating the Philippine Amusements and
Gaming Corporation, Defining Its Powers and Functions, Providing Funds therefor and for Other
Purposes." Its Declaration of Policy20 trumpeted the intent that PAGCOR was created to implement
"the policy of the State to centralize and integrate all games of chancenot heretofore authorized
by existing franchises or permitted by law x x x." One of its whereas clauses referred to the need
to prevent "the proliferation of illegal casinos or clubs conducting games of chance x x x."21 To
achieve this objective, PAGCOR was empowered "to establish and maintain clubs, casinos,
branches, agencies or subsidiaries, or other units anywhere in the Philippines x x x."22
(2.c) On the same day after creating PAGCOR, President Marcos issued P.D. No. 1067-B granting
PAGCOR "x x x a Franchise to Establish, Operate, and Maintain Gambling Casinos on Land or
Water Within the Territorial Jurisdiction of the Republic of the Philippines." Obviously, P.D. No.
1067-A which created the PAGCOR is not a grant of franchise to operate the game of jai-alai. On the
other hand, Section 1 of P.D. No. 1067-B provides the nature and term of PAGCOR’S franchise to
maintain gambling casinos (not a franchise to operate jai-alai), viz:
"SECTION 1. NATURE AND TERM OF FRANCHISE. – Subject to the terms and conditions
established in this Decree, the Philippine Amusements and Gaming Corporation is hereby granted
for a period of twenty-five (25) years, renewable for another 25 years, the right, privilege, and
authority to operate and maintain gambling casinos, clubs and other recreation or amusement
places, sports, gaming pools, i.e., basketball, football, etc., whether on land or sea, within the
territorial jurisdiction of the Republic of the Philippines."
Section 2 of the same decree spells out the scope of the PAGCOR franchise to maintain
gambling casinos (not a franchise to operate jai-alai), viz:
"SEC. 2. SCOPE OF FRANCHISE. – In addition to the right and privileges granted it under Sec. 1,
this Franchise shall entitle the franchise holder to do and undertake the following:
(1) Enter into operator’s and/or management contracts with duly registered and accredited
company possessing the knowledge, skill, expertise and facilities to insure the efficient
operation of gambling casinos; Provided, That the service fees of such management and/or
operator companies whose services may be retained by the franchise holder of this
Franchise shall not in the aggregate exceed ten (10%) percent of the gross income.
(2) Purchase foreign exchange that may be required for the importation of equipment,
facilities and other gambling paraphernalia indispensably needed or useful to insure the
successful operation of gambling casinos.
(3) Acquire the right of way, access to or thru public lands, public waters or harbors,
including the Manila Bay Area; such right to include, but not limited to, the right to lease
and/or purchase public lands, government reclaimed lands, as well as land of private
ownership or those leased from the government. This right shall carry with it the privilege of
the franchise holder to utilize piers, quays, boat landings, and such other pertinent and
related facilities within these specified areas for use as landing, anchoring, or berthing sites
in connection with its authorized casino operations.
(4) Build or construct structures, buildings, coastways, piers, docks, as well as any other
form of land and berthing facilities for its floating casinos.
(5) To do and perform such other acts directly related to the efficient and successful
operation and conduct of games of chance in accordance with existing laws and decrees."
(2.d) Still on the day after creating PAGCOR, President Marcos issued P.D. No.
1067-C amending P.D. Nos. 1067-A and B. The amendment provides
that PAGCOR’s franchise to maintain gambling casinos "x x x shall
become exclusive in character, subject only to the exception of existing
franchises and games of chance heretofore permitted by law, upon the generation
by the franchise holder of gross revenues amounting to ₱1.2 billion and its
contribution therefrom of the amount of ₱720 million as the government’s share."
(2.e) On June 2, 1978, President Marcos issued P.D. No. 1399 amending P.D. Nos.
1067-A and 1067-B. The amendments did not change the nature and scope of
the PAGCOR franchise to maintain gambling casinos. Rather, they referred to
the Composition of the Board of Directors,23 Special Condition of
Franchise,24 Exemptions,25 and Other Conditions.26
(2.f) On August 13, 1979, President Marcos issued P.D. No. 1632. Again, the
amendments did not change a comma on the nature and scope of PAGCOR’s
franchise to maintain gambling casinos. They related to the allocation of the 60%
share of the government where the host area is a city or municipality other than
Metro Manila,27 and the manner of payment of franchise tax of PAGCOR.28
(2.g) On July 11, 1983, President Marcos issued P.D. No. 1869 entitled
"Consolidating and Amending P.D. Nos. 1067-A, 1067-B, 1067-C, 1399 and 1632
Relative to the Franchise and Power of the PAGCOR." As a consolidated decree, it
reiterated the nature and scope of PAGCOR’s existing franchise to maintain
gambling casinos (not a franchise to operate jai-alai), thus:
"SEC. 10. Nature and term of franchise. – Subject to the terms and conditions established in this
Decree, the Corporation is hereby granted for a period of twenty-five (25) years, renewable for
another twenty-five (25) years, the rights, privilege and authority to operate and maintain gambling
casinos, clubs, and other recreation or amusement places, sports, gaming pools, i.e. basketball,
football, lotteries, etc., whether on land or sea, within the territorial jurisdiction of the Republic of the
Philippines.
SEC. 11. Scope of Franchise. – In addition to the rights and privileges granted it under the
preceding Section, this Franchise shall entitle the corporation to do and undertake the following:
(1) Enter into operating and/or management contracts with any registered and accredited
company possessing the knowledge, skill, expertise and facilities to insure the efficient
operation of gambling casinos; provided, that the service fees of such management and/or
operator companies whose services may be retained by the Corporation shall not in the
aggregate exceed ten (10%) percent of the gross income;
(2) Purchase foreign exchange that may be required for the importation of equipment,
facilities and other gambling paraphernalia indispensably needed or useful to insure the
successful operation of gambling casinos;
(3) Acquire the right of way or access to or thru public land, public waters or harbors,
including the Manila Bay Area; such right shall include, but not be limited to, the right to lease
and/or purchase public lands, government reclaimed lands, as well as lands of private
ownership or those leased from the Government. This right shall carry with it the privilege of
the Corporation to utilize piers, quays, boat landings, and such other pertinent and related
facilities within these specified areas for use as landing, anchoring or berthing sites in
connection with its authorized casino operations;
(4) Build or construct structures, buildings, castways, piers, decks, as well as any other form
of landing and boarding facilities for its floating casinos; and
(5) To do and perform such other acts directly related to the efficient and successful
operation and conduct of games of chance in accordance with existing laws and decrees."
(2.h) Then came the 1986 EDSA revolution and the end of the Marcos regime. On May 8,
1987, President Corazon Aquino issued Executive Order No. 169 repealing P.D. Nos. 810, 1124
and 1966 thus revoking the franchise of the Philippine Jai-Alai and Amusement Corporation
controlled by the Romualdezes to operate jai-alai in Manila. PAGCOR’s franchise to operate
gambling casinos was not revoked. Neither was it given a franchise to operate jai-alai.
THIRD. In light of its legal history, we hold that PAGCOR cannot maintain that section 10 of P.D.
No. 1869 grants it a franchise to operate jai-alai. Section 10 provides:
"SEC. 10 Nature and term of franchise. – Subject to the terms and conditions established in this
another twenty-five (25) years, the rights, privilege and authority to operate and maintain gambling
casinos, clubs, and other recreation or amusement places, sports, gaming pools, i.e., basketball,
football, lotteries, etc., whether on land or sea, within the territorial jurisdiction of the Republic of the
Philippines."
(3.a) P.D. No. 1869 is a mere consolidation of previous decrees dealing with PAGCOR. PAGCOR
cannot seek comfort in section 10 as it is not a new provision in P.D. No. 1869 and, from the
beginning of its history, was never meant to confer it with a franchise to operate jai-alai. It is
a reiteration of section 1 of P.D. No. 1067-B which provides:
"SECTION 1. Nature and Term of Franchise. – Subject to the terms and conditions established in
this Decree, the Philippine Amusements and Gaming Corporation is hereby granted for a period of
twenty-five (25) years, renewable for another 25 years, the right, privilege, and authority to operate
and maintain gambling casinos, clubs and other recreation or amusement places, sports gaming
pools, i.e., basketball, football, etc., whether on land or sea, within the territorial jurisdiction of the
Republic of the Philippines."
(3.b) Plainly, section 1 of P.D. No. 1067-B which was reenacted as section 10 of P.D. No. 1869 is
not a grant of legislative franchise to operate jai-alai. P.D. No. 1067-B is a franchise to maintain
gambling casinos alone. The two franchises are as different as day and night and no alchemy of
logic will efface their difference.
(3.c) PAGCOR's stance becomes more sterile when we consider the law's intent. It cannot be the
intent of President Marcos to grant PAGCOR a franchise to operate jai-alai because a year and
a half before it was chartered, he issued P.D. No. 810 granting Philippine Jai-Alai and Amusement
Corporation a 25-year franchise to operate jai-alai in Manila. This corporation is controlled by his in-
laws, the Romualdezes.29 To assure that this Romualdez corporation would have no competition,
President Marcos earlier revoked the power of local governments to grant jai-alai franchises.
Thus, PAGCOR’s stance that P.D. No. 1067-B is its franchise to operate jai-alai, which would
have competed with the Romualdezes’ franchise, extends credulity to the limit. Indeed, P.D.
No. 1067-A which created PAGCOR made it crystal clear that it was to implement "the policy of the
State to centralize and integrate all games of chance not heretofore authorized by existing
franchises or permitted by law," which included the Philippine Jai-Alai and Amusement
Corporation.
(3.d) There can be no sliver of doubt that under P.D. No. 1869, PAGCOR’s franchise is only to
operate gambling casinos and not jai-alai. This conclusion is compelled by a plain reading of its
various provisions, viz:
"SECTION 1. Declaration of Policy. - It is hereby declared to be the policy of the State to centralize
and integrate all games of chance not heretofore authorized by existing franchises or permitted by
law in order to attain the following objectives:
xxxxxx
(b) To establish and operate clubs and casinos, for amusement and recreation, including sports,
gaming pools (basketball, football, lotteries, etc.) and such other forms of amusement and recreation
including games of chance, which may be allowed by law within the territorial jurisdiction of the
Philippines and which will: x x x (3) minimize, if not totally eradicate, the evils, malpractices and
corruptions that are normally prevalent in the conduct and operation of gambling clubs and
casinos without direct government involvement.
xxxxxx
TITLE IV – GRANT OF FRANCHISE
SEC. 10. Nature and term of franchise. – Subject to the terms and conditions established in this
another twenty-five (25) years, the rights, privileges and authority to operate and maintain
gambling casinos, clubs, and other recreation or amusement places, sports, gaming pools, i.e.
basketball, football, lotteries, etc. whether on land or sea, within the territorial jurisdiction of the
Republic of the Philippines.
SEC. 11. Scope of Franchise. – In addition to the rights and privileges granted it under the preceding
Section, this Franchise shall entitle the Corporation to do and undertake the following:
(1) Enter into operating and/or management contracts with any registered and accredited company
possessing the knowledge, skill, expertise and facilities to insure the efficient operation of
gambling casinos; provided, that the service fees of such management and/or operator companies
whose services may be retained by the Corporation shall not in the aggregate exceed ten (10%)
percent of the gross income;
(2) Purchase foreign exchange that may be required for the importation of equipment, facilities and
other gambling paraphernalia indispensably needed or useful to insure the successful operation
of gambling casinos;
(3) Acquire the right of way or access to or thru public land, public waters or harbors x x x. This right
shall carry with it the privilege of the Corporation to utilize x x x such other pertinent and related
facilities within these specified areas x x x in connection with its authorized casino operations;
(4) Build or construct structures, building castways, piers, decks, as well as any other form of landing
and boarding facilities for its floating casinos;
xxxxxx
SEC. 13. Exemptions. –
(1) Customs duties, taxes and other imposts on importations. – All importations of equipment,
vehicles, automobiles, boats, ships, barges, aircraft and such other gambling paraphernalia,
including accessories or related facilities, for the sole and exclusive use of the casinos, the
proper and efficient management and administration thereof, and such other clubs. Recreation or
amusement places to be established under and by virtue of this Franchise shall be exempt from the
payment of all kinds of customs duties, taxes and other imposts, including all kinds of fees, levies, or
charges of any kind or nature, whether National or Local.
Vessels and/or accessory ferry boats imported or to be imported by any corporation having existing
contractual arrangements with the Corporation, for the sole and exclusive use of the casino or to
be used to service the operations and requirements of the casino, shall likewise be totally
exempt from the payment of all customs duties, x x x.
(2) Income and other taxes. – (a) x x x
(b) Others: The exemption herein granted for earnings derived from the operations conducted under
the franchise x x x shall inure to the benefit of and extend to corporation(s) x x x with whom the
Corporation or operator has any contractual relationship in connection with the operations of
the casino(s) authorized to be conducted under this Franchise x x x.
(3) Dividend Income. – x x x The dividend income shall not in such case be considered as part of
beneficiaries’ taxable income; provided, however, that such dividend income shall be totally
exempted from income or other forms of taxes if invested within six (6) months from date the
dividend income is received, in the following:
(a) operation of the casino(s) or investments in any affiliate activity that will ultimately redound to
the benefit of the Corporation or any other corporation with whom the Corporation has any existing
arrangements in connection with or related to the operations of the casino(s);
xxxxxx
(4) Utilization of Foreign Currencies. – The Corporation shall have the right and authority, solely and
exclusively in connection with the operations of the casino(s), to purchase, receive, exchange
and disburse foreign exchange, subject to the following terms and conditions:
(a) A specific area in the casino(s) or gaming pit shall be put up solely and exclusively for players
and patrons utilizing foreign currencies;
(b) The Corporation shall appoint and designate a duly accredited commercial bank agent of the
Central Bank, to handle, administer and manage the use of foreign currencies in the casino(s);
(c) The Corporation shall provide an office at casino(s) for the employees of the designated bank,
agent of the Central Bank, where the Corporation will maintain a dollar account which will be utilized
exclusively for the above purpose and the casino dollar treasury employees;
xxxxxx
(f) The disbursement, administration, management and recording of foreign exchange currencies
used in the casino(s) shall be carried out in accordance with existing foreign exchange regulations
x x x.
SEC. 14. Other Conditions. –
(1) Place. – The Corporation shall conduct the gambling activities or games of chance on land or
water within the territorial jurisdiction of the Republic of the Philippines. When conducted on water,
the Corporation shall have the right to dock the floating casino(s) in any part of the Philippines
where vessels/boats are authorized to dock under the Customs and Maritime Laws.
(2) Time. – Gambling activities may be held and conducted at anytime of the day or night; provided,
however, that in places where curfew hours are observed, all players and personnel of gambling
casinos shall remain within the premises of the casinos.
(3) Persons allowed to play. – x x x
(4) Persons not allowed to play. -
xxxxxx
From these are excepted the personnel employed by the casinos, special guests, or those who
at the discretion of the Management may be allowed to stay in the premises.
TITLE VI – EXEMPTION FROM CIVIL SERVICE LAW
SEC. 16. Exemption. – All position in the Corporation, whether technical, administrative, professional
or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and
shall be governed only by the personnel management policies set by the Board of Directors. All
employees of the casinos and related services shall be classified as "Confidential" appointees.
TITLE VII – TRANSITORY PROVISIONS
SEC. 17. Transitory Provisions. – x x x
SEC. 18. Exemption from Labor Laws. – No union or any form of association shall be formed by all
those working as employees of the casino or related services whether directly or indirectly. For
such purpose, all employees of the casinos or related services shall be classified as "confidential"
appointees and their employment thereof, whether by the franchise holder, or the operators, or the
managers, shall be exempt from the provisions of the Labor Code or any implementing rules and
regulations thereof."
From its creation in 1977 and until 1999, PAGCOR never alleged that it has a franchise to
operate jai-alai. Twenty-two years is a long stretch of silence. It is inexplicable why it never
claimed its alleged franchise for so long a time which could have allowed it to earn billions of
pesos as additional income.
(3.e) To be sure, we need not resort to intellectual jujitsu to determine whether PAGCOR has a
franchise to operate jai-alai. It is easy to tell whether there is a legislative grant or not. Known as the
game of a thousand thrills, jai-alai is a different game, hence, the terms and conditions imposed
on a franchisee are spelled out in standard form. A review of some laws and executive orders
granting a franchise to operate jai-alai will demonstrate these standard terms and conditions, viz:
(3.e.1) Commonwealth Act No. 485 (An Act to Permit Bets in the Game of Basque Pelota) – June
18, 1939
"Be it enacted by the National Assembly of the Philippines:
SECTION 1. Any provision of existing law to the contrary notwithstanding, it shall be permissible in
the game of Basque pelota, a game of skill (including the games of pala, raqueta, cestapunta,
remonte and mano), in which professional players participate, to make either direct bets or bets by
means of a totalizer; Provided, That no operator or maintainer of a Basque pelota court shall collect
as commission a fee in excess of twelve per centum on such bets, or twelve per centum of the
receipts of the totalizer, and of such per centum three shall be paid to the Government of the
Philippines, for distribution in equal shares between the General Hospital and the Philippine Anti-
tuberculosis Society.
SEC. 2. Any person, company or corporation, that shall build a court for Basque pelota games with
bets within eighteen months from the date of the approval of this Act, shall thereunder have the
privilege to maintain and operate the said court for a term of twenty-five years from the date in which
the first game with bets shall have taken place. At the expiration of the said term of twenty-five
years, the buildings and the land on which the court and the stadium shall be established, shall
become the property of the Government of the Philippines, without payment.
SEC. 3. The location and design of the buildings that shall be used for the same games of Basque
pelota, shall have prior approval of the Bureau of Public Works and the operator shall pay a license
fee of five hundred pesos a year to the city or municipality in which the establishment shall be
situated, in addition to the real-estate tax due on such real property.
SEC. 4. This Act shall take effect upon its approval.
ENACTED, without Executive approval, June 18, 1939."
(3.e.2) Executive Order No. 135 (Regulating the Establishment, Maintenance and Operation of
Frontons and Basque Pelota Games [Jai Alai]) – May 4, 1948
"By virtue of the powers vested in me by Commonwealth Act No. 601, entitled An Act to regulate the
establishment, maintenance and operation of places of amusements in chartered cities,
municipalities and municipal districts, the following rules and regulations governing frontons and
basque pelota games are hereby promulgated:
SECTION 1. Definitions. – Whenever used in this Order and unless the context indicates a different
meaning, the following terms shall bear the meaning indicated herein:
(a) ‘Basque pelota game’ shall include the pelota game with the use of pala, raqueta, cesta punta,
remonte and mano, in which professional players participate.
(b) ‘Fronton’ comprises the court where basque pelota games are played, inlcuding the adjoining
structures used in connection with such games, such as the betting booths and galleries, totalizator
equipment, and the grandstands where the public is admitted in connection with such games.
(c) ‘Pelotari’ is a professional player engaged in playing basque pelota.
(d) ‘Professional player’ is one who plays for compensation.
SEC. 2. Supervision over the establishment and operation of frontons and basque pelota games. –
Subject to the administrative control and supervision of the Secretary of the Interior, city or municipal
mayors shall exercise supervision over the establishment, maintenance and operation of frontons
and basque pelota games within their respective territorial jurisdiction, as well as over the officials
and employees of such frontons and shall see to it that all laws, orders and regulations relating to
such establishments are duly enforced. Subject to similar approval, they shall appoint such
personnel as may be needed in the discharge of their duties and fix their compensation which shall
be paid out of the allotment of one-half per centum (1/2%) out of the total bets or wager funds set
aside and made available for the purpose in accordance with Section 19 hereof. The Secretary of
the Interior shall have the power to prohibit or allow the operation of such frontons on any day or
days, or modify their hour of operation and to prescribe additional rules and regulations governing
the same.
SEC. 3. Particular duties of city or municipal mayors regarding operation of basque pelota games
and frontons. – In connection with their duty to enforce the laws, orders, rules and regulations
relating to frontons and basque pelota games, the city or municipal mayor shall require that such
frontons shall be properly constructed and maintained in accordance with the provisions of
Commonwealth Act No. 485; shall see that the proper sanitary accommodations are provided in the
grandstands and other structures comprising such frontons; and shall require that such frontons be
provided with a properly equipped clinic for the treatment of injuries to the pelotaris.
SEC. 4. Permits. – In the absence of a legislative franchise, it shall be unlawful for any person or
entity to establish and/or operate frontons and conduct basque pelota games without a permit issued
by the corresponding city or municipal mayor, with the approval of the provincial governor in the
latter case. Any permit issued hereunder shall be reported by the provincial governor or city mayor,
as the case may be, to the Secretary of the Interior.
SEC. 5. License fees. – The following license fees shall be paid:
(a) For each basque pelota fronton, five hundred pesos (P500) annually, or one hundred and twenty-
five pesos (P125) quarterly.
(b) For pelotaris, judges or referees and superintendents (intendentes) of basque pelota games,
eighteen pesos (P18) each annually.
The above license fees shall accrue to the funds of the city or municipality where the fronton is
operated.
SEC. 6. Location. – Except in the case of any basque pelota fronton licensed as of December 8,
1941, no basque pelota fronton shall be maintained or operated within a radius of 200 lineal meters
from any city hall or municipal building, provincial capitol building, national capitol building, public
playa or park, public school, church, hospital, athletic stadium, or any institution of learning or
charity.
SEC. 7. Buildings, sanitary and parking requirements. – No permit or license for the construction or
operation of a basque pelota fronton shall be issued without proper certificate of the provincial or city
engineer and architect certifying to the suitability and safety of the building and of the district or city
health officer certifying to the sanitary condition of said building. The city or municipal mayor may, in
his discretion and as circumstances may warrant, require that the fronton be provided with sufficient
space for parking so that the public roads and highways be not used for such purposes.
SEC. 8. Protest and complaint. – Any person who believes that any basque pelota fronton is located
or established in any place not authorized herein or is being operated in violation of any provision of
this order may file a protest or complaint with the city or municipal mayor concerned, and after
proper investigation of such complaint the city or municipal mayor may take such action as he may
consider necessary in accordance with the provisions of section 10 hereof. Any decision rendered
on the matter by the city or municipal mayor shall be appealable to the Secretary of the Interior.
SEC. 9. Persons prohibited admission. – Persons under 16 years of age, persons carrying firearms
or deadly weapons of any description, except government officials actually performing their official
duties therein, intoxicated persons, and persons of disorderly nature and conduct who are apt to
disturb peace and order, shall not be admitted or allowed in any basque pelota fronton: Provided,
That persons under 16 years of age may, when accompanied by their parents or guardians, be
admitted therein but in no case shall such minors be allowed to bet.
SEC. 10. Gambling prohibited. – No card games or any of the prohibited games shall be permitted
within the premises of any basque pelota fronton; and upon satisfactory evidence that the operator
or entity conducting the game has tolerated the existence of any prohibited game within its premises,
the city or municipal mayor may take the necessary action in accordance with the provisions of
section 11 hereof.
SEC. 11. Revocation or suspension of permits and licenses. – The city or municipal mayor, subject
to the approval of the Secretary of the Interior, may suspend or revoke any license granted under
this Order to any basque pelota fronton or to any official or employee thereof, for violation of any of
the rules and regulations provided in this Order or those which said city or municipal mayor may
prescribe, or for any just cause. Such suspension or revocation shall operate to forfeit to the city or
municipality concerned all sums paid therefor.
SEC. 12. Appeals. – Any action taken by the city or municipal mayor under the provisions of this
Order shall stand, unless modified or revoked by the Secretary of the Interior.
SEC. 13. Books, records and accounts. – The city or municipal mayor, or his duly authorized
representative, shall have the power to inspect at all times the books, records, and accounts of any
basque pelota fronton. He may, in his discretion and as the circumstances may warrant, require that
the books and financial or other statements of the person or entity operating the game be kept in
such manner as he may prescribe.
SEC. 14. Days and hours of operation. – Except as may otherwise be provided herein, basque
pelota games with betting shall be allowed every day, excepting Sundays, from 2 o’clock p.m. to not
later than 11 o’clock p.m.
SEC. 15. Pelotaris, judges, referees, etc. shall be licensed. – No person or entity operating a basque
pelota fronton, wherein games are played with betting, shall employ any pelotari, judge or referee,
superintendent of games (intendente), or any other official whose duties are connected with the
operation or supervision of the games, unless such person has been duly licensed by the city or
municipal mayor concerned. Such license shall be granted upon satisfactory proof that the applicant
is in good health, know the rules and usages of the game, and is a person of good moral character
and of undoubted honesty. In the case of pelotaris, such license shall be granted only upon the
further condition that they are able to play the game with reasonable skill and with safety to
themselves and to their opponents. The city or municipal mayor may further require other
reasonable qualifications for applicants to a license, not otherwise provided herein. Such license
shall be obtained yearly.
SEC. 16. Installation of automatic electric totalizator. – Any person or entity operating a fronton
wherein betting in any form is allowed shall install in its premises within the period of one year from
the date this Order takes effect, an automatic electrically operated indicator system and ticket selling
machine, commonly known as totalizator, which shall clearly record each ticket purchased on every
player in any game, the total number of tickets sold on each event, as well as the dividends that
correspond to holders of winning numbers. This requirement shall, however, not apply to double
events or forecast pools or to any betting made on the basis of a combination or grouping of players
until a totalizator that can register such bets has been invented and placed on the market.
SEC. 17. Supervision over sale of betting tickets and payment of dividends. – For the purpose of
verifying the accuracy of reports in connection with the sale of betting tickets and the computation of
dividends awarded to winners on each event, as well as other statements with reference to the
betting in the games played, the city or municipal mayor shall assign such number of auditing
officers and checkers as may be necessary for the purpose. These auditing officers and checkers
shall be placed in the ticket selling booths, dividend computation booths and such other parts of the
fronton, where betting tickets are sold and dividends computed. It shall be their duty to check up and
correct any irregularity or any erroneous report or computation that may be made by officials of the
fronton, in connection with the sale of tickets and the payment of dividends.
SEC. 18. Wager tickets and dividends. – The face value of the wager tickets for any event shall not
exceed ₱5 whether for "win" or "place", or for any combination or grouping of winning numbers. The
face value of said tickets, as the case may be, shall be the basis for the computation of the dividends
and such dividends shall be paid after eliminating fractions of ten centavos (₱0.10); for example: if
the resulting dividend is ₱10.43, the dividend that shall be paid will be only ₱10.40.
SEC. 19. Distribution of wager funds. – The total wager funds or gross receipts from the sale of the
betting tickets shall be apportioned as follows: a commission not exceeding ten and one-half per
centum (10 ½%) on the total bets on each game or event shall be set aside for the person or entity
operating the fronton and four and one-half per centum (4 ½%) of such bets shall be covered into
the National Treasury for disposition as may be authorized by law or executive order; and the
balance or eighty-five per centum (85%) of the total bets shall be distributed in the form of dividends
among holders of "win" or "place" numbers or holders of the winning combination or grouping of
numbers, as the case may be: Provided, however, That of the ten and one-half per centum (10 ½%)
representing the commission of the person or entity operating the fronton, an amount equivalent to
one-half per centum (1/2%) of the total bets or wager funds shall be set aside and made available to
cover the expenses of the personnel assigned to supervise the operation of basque pelota games
and frontons, including payment of salaries of such personnel, purchase of necessary equipment
and other sundry expenses as may be authorized by competent authority.
SEC. 20. Supervision over the conduct of games; enforcement of rules and regulations. – The city or
municipal mayor is authorized to place within the premises of the fronton such number of inspectors
and agents as may be deemed necessary to supervise the conduct of the games to see that the
rules of the games are strictly enforced, and to carry out the provisions of this Order as well as such
other regulations as may hereafter be prescribed.
SEC. 21. Rules governing the games and personnel of the fronton. – The rules and regulations that
have been adopted by any fronton to govern the operation of its games and the behavior, duties and
performance of the officials and personnel connected therewith, such as pelotaris, judges, referees
or superintendents of games (intendentes) and others, shall be the recognized rules and regulations
of such fronton until the same are altered or repealed by the Secretary of the Interior; and any
fronton may introduce any type or form of games or events, provided they are not contrary to the
provisions of this Order or any rule or regulation hereafter issued by the Secretary of the Interior.
SEC. 22. Regulations governing pelotaris. – Any rule or regulation adopted by any established
fronton governing the conduct or performance of pelotaris to the contrary notwithstanding, the
following regulations shall be observed:
(a) The pelotaris who are participating in the games shall not be allowed to communicate, talk or
make signs with any one in the public or with any official or employee of the fronton during the
games, except with the judges or referees or the superintendent (intendente) in charge of the
games;
(b) The program of games or events, as well as the line-up or order of playing of the pelotaris in
each event shall be determined by the superintendent of the games (intendente), subject to the
approval of the city or municipal mayor, or his authorized representatives;
(c) Pelotaris shall be in good physical condition before participating in any game and shall be laid off
from playing at least two days in a week. Every pelotari shall once a month secure a medical
certificate from a government physician to be designated by the city or municipal mayor concerned
certifying to his physical fitness to engage in the games; and
(d) The amount of dividends computed for any event shall not be posted within the view of the
pelotaris participating in the event until after the termination of said event."
(3.e.3) Presidential Decree No. 810 (An Act Granting the Philippine Jai-Alai and Amusement
Corporation a Franchise to Operate, Construct and Maintain a Fronton for Basque Pelota and
Similar Games of Skill in the Greater Manila Area) – October 16, 1975
"WHEREAS, by virtue of the provisions of Commonwealth Act Numbered 485 the franchise to
operate and maintain a fronton for the Basque pelota and similar games of skill in the City of Manila,
shall expire on October, 1975 whereupon the ownership of the land, buildings and improvements
used in the said game will be transferred without payment to the government by operation of law;
WHEREAS, there is a pressing need not only to further develop the game as a sport and
amusement for the general public but also to exploit its full potential in support of the government’s
objectives and development programs;
WHEREAS, Basque pelota is a game of international renown, the maintenance and promotion of
which will surely assist the tourism industry of the country;
WHEREAS, the tourism appeal of the game will be enhanced only with the government’s support
and inducement in developing the sport to a level at par with international standards;
WHEREAS, once such tourism appeal is developed, the same will serve as a stable and expanding
base for revenue generation for the government’s development projects.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution, hereby decree as follows:
SECTION 1. Any provision of law to the contrary notwithstanding, there is hereby granted to the
Philippine Jai-Alai and Amusement Corporation, a corporation duly organized and registered under
the laws of the Philippines, hereinafter called the grantee or its successors, for a period of twenty-
five years from the approval of this Act, extendable for another twenty-five years without the
necessity of another franchise, the right, privilege and authority to construct, operate and maintain a
court for Basque Pelota (including the games of pala, raqueta, cestapunta, remonte and mano)
within the Greater Manila Area, establish branches thereof for booking purposes and hold or conduct
Basque pelota games therein with bettings either directly or by means of electric and/or
computerized totalizator.
The games to be conducted by the grantee shall be under the supervision of the Games and
Amusements Board, hereinafter referred to as the Board, which shall enforce the laws, rules and
regulations governing Basque pelota as provided in Commonwealth Act numbered four hundred and
eighty-five, as amended, and all the officials of the game and pelotaris therein shall be duly licensed
as such by the Board.
SEC. 2. The grantee or its duly authorized agent may offer, take or arrange bets within or outside the
place, enclosure or court where the Basque pelota games are held: Provided, That bets offered,
taken or arranged outside the place, enclosure or court where the games are held, shall be offered,
taken or arranged only in places duly licensed by the corporation; Provided, however, That the same
shall be subject to the supervision of the Board. No person other than the grantee or its duly
authorized agents shall take or arrange bets on any pelotari or on the game, or maintain or use a
totalizator or other device, method or system to bet on any pelotari or on the game within or without
the place, enclosure or court where the games are held by the grantee. Any violation of this section
shall be punished by a fine of not more than two thousand pesos or by imprisonment of not more
than six months, or both in the discretion of the Court. If the offender is a partnership, corporation, or
association, the criminal liability shall devolve upon its president, directors or any other officials
responsible for the violation.
SEC. 3. The grantee shall provide mechanical and/or computerized devices, namely: a) electric
totalizator; b) machine directly connected to a computer in a display board, for the sale of tickets,
including, those sold from the off-court stations; c) modern sound system and loud speakers; d)
facilities that bring safety, security, comfort and convenience to the public; e) modern
intercommunication devices; and f) such other facilities, devices and instruments for clean, honest
and orderly Basque pelota games, within three years from the approval of this Act.
The Board shall assign its auditors and/or inspectors to supervise and regulate the placing of bets,
proper computation of dividends and the distribution of wager funds.
SEC. 4. The total wager fund or gross receipts from the sale of betting tickets will be apportioned as
follows: eighty-five per centum (85%) shall be distributed in the form of dividends among the holders
of "win" or "place" numbers or holders of the winning combination or grouping of numbers as the
case may be. The remaining balance of fifteen per centum (15%) shall be distributed as follows:
eleven and one-half per centum (11 ½%) shall be set aside as the commission fee of the grantee,
and three and one-half per centum (3 ½%) thereof shall be set aside and alloted to any special
health, educational, civic, cultural, charitable, social welfare, sports, and other similar projects as
may be directed by the President. The receipts from betting corresponding to the fraction of ten
centavos eliminated from the dividends paid to the winning tickets, commonly known as breakage,
shall also be set aside for the above-named special projects.
SEC. 5. The provision of any existing law to the contrary notwithstanding, the grantee is hereby
authorized to hold Basque pelota games (including the games of pala, raqueta, cestapunta, remonte
and mano) on all days of the week except Sundays and official holidays.
SEC. 6. The provisions of Commonwealth Act numbered four hundred and eighty-five as amended,
shall be deemed incorporated herein, provided that the provisions of this Act shall take precedence
over the provisions thereof and all other laws, executive orders and regulations which are
inconsistent herewith.
SEC. 7. The grantee shall not lease, transfer, grant the usufruct of, sell or assign this franchise
permit, or the rights or privileges acquired thereunder to any person, firm, company, corporation or
other commercial or legal entity, nor merge with any other person, company or corporation
organized for the same purpose, without the previous approval of the President of the Philippines.
SEC. 8. For purposes of this franchise, the grantee is herein authorized to make use of the existing
fronton, stadium and facilities located along Taft Avenue, City of Manila, belonging to the
government by virtue of the provisions of Commonwealth Act numbered four hundred and eighty-
five."
It is abundantly clear from the aforequoted laws, executive orders and decrees that the
legislative practice is that a franchise to operate jai-alai is granted solely for that purpose and
the terms and conditions of the grant are unequivocably defined by the grantor. Such
express grant and its conditionalities protective of the public interest are evidently wanting in
P.D. No. 1869, the present Charter of PAGCOR. Thus, while E.O. 135 and P.D. No. 810 provided
for the apportionment of the wager funds or gross receipts from the sale of betting tickets, as well as
the distribution of dividends among holders of "win" or "place" numbers or holders of the winning
combination or grouping of numbers, no such provisions can be found in P.D. No. 1869. Likewise,
while P.D. No. 810 describes where and how the games are to be conducted and bettings to be
made, and imposes a penalty in case of a violation thereof, such provisions are absent in P.D. No.
1869.
In fine, P.D. No. 1869 does not have the standard marks of a law granting a franchise to
operate jai-alai as those found under P.D. No. 810 or E.O. 135. We cannot blink away from the
stubborn reality that P.D. No. 1869 deals with details pertinent alone to the operation of
gambling casinos. It prescribes the rules and regulations concerning the operation of gambling
casinos such as the place, time, persons who are and are not entitled to play, tax exemptions, use of
foreign exchange, and the exemption of casino employees from the coverage of the Civil Service
Law and the Labor Code. The short point is that P.D. No. 1869 does not have the usual
provisions with regards to jai-alai. The logical inference is that PAGCOR was not given a
franchise to operate jai-alai frontons. There is no reason to resist the beguiling rule that acts of
incorporation, and statutes granting other franchises or special benefits or privileges to corporations,
are to be construed strictly against the corporations; and whatever is not given in unequivocal terms
is understood to be withheld.30
FOURTH. The tax treatment between jai-alai operations and gambling casinos are distinct from each
other. Letters of Instruction No. 1439 issued on November 2, 1984 directed the suspension of the
imposition of the increased tax on winnings in horse races and jai-alai under the old revenue code,
to wit:
"WHEREAS, the increased tax on winnings on horse races and jai-alai under Presidential Decree
1959 has already affected the holding of horse races and jai-alai games, resulting in government
revenue loss and affecting the livelihood of those dependent thereon;
WHEREAS, the manner of taxation applicable thereto is unique and its effects and incidence are in
no way similar to the taxes on casino operation or to any shiftable tax;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution, do hereby order and instruct the Minister of Finance, the
Commissioner of the Bureau of Internal Revenue, and the Chairman, Games & Amusements Board,
to suspend the implementation of the increased rate of tax winnings in horse races and jai-alai
games and collect instead the rate applicable prior to the effectivity of PD 1959."
Similarly, under Republic Act No. 8424, or the Tax Reform Act of 1997, there is an amusement tax
imposed on operators of jai-alai (Section 125) and a stamp tax on jai-alai tickets (Section 190).
There is no corresponding imposition on gambling casinos. Well to note, section 13 of P.D. No. 1869
grants to the franchise holder and casino operators tax exemptions from the payment of customs
duties and income tax, except a franchise tax of five (5%) percent which shall be in lieu of all kinds of
taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected
by any municipal, provincial, or national government authority. No similar exemptions have been
extended to operators of jai-alai frontons.
FIFTH. P.D. No. 1869, the present Charter of PAGCOR, is a consolidation of P.D. Nos. 1067-A,
1067-B and 1067-C all issued on January 1, 1977. P.D. No. 1067-A created the PAGCOR and
defined its powers and functions; P.D. No. 1067-B granted to PAGCOR a franchise to establish,
operate, and maintain gambling casinos on land or water within the territorial jurisdiction of the
Republic of the Philippines; and P.D. No. 1067-C granted PAGCOR theexclusive right, privilege
and authority to operate and maintain gambling casinos, subject only to the exception of existing
franchises and games of chance permitted by law.
Beyond debate, P.D. No. 1869 adopted substantially the provisions of said prior decrees, with
some additions which, however, have no bearing on the franchise granted to PAGCOR to
operate gambling casinos alone, such as the Affiliation Provisions under Title III and the
Transitory Provisions under Title VII. It also added the term "lotteries" under Section 1 (b) on
Declaration of Policy and Section 10 on the Nature and Term of Franchise. It ought to follow that
P.D. No. 1869 carries with it the same legislative intent that infused P.D. Nos. 1067-A, 1067-B and
1067-C. To be sure, both P.D. No. 1067-A and P.D. No. 1869 seek to enforce the same avowed
policy of the State to "minimize, if not totally eradicate, the evils, malpractices and corruptions that
normally are found prevalent in the conduct and operation of gambling clubs and casinos without
direct government involvement." It did not address the moral malevolence of jai-alai games and
the need to contain it thru PAGCOR. We cannot deface this legislative intent by holding that the
grant to PAGCOR under P.D. Nos. 1067-A and 1067-B to establish, operate, and maintain gambling
casinos, has been enlarged, broadened or expanded by P.D. No. 1869 so as to include a grant to
operate jai-alai frontons. Then and now, the intention was merely to grant PAGCOR a franchise to
operate gambling casinos, no more, no less.
SIXTH. Lest the idea gets lost in the shoals of our subconsciousness, let us not forget that PAGCOR
is engaged in business affected with public interest. The phrase "affected with public interest" means
that an industry is subject to control for the public good;31 it has been considered as the equivalent of
"subject to the exercise of the police power."32 Perforce, a legislative franchise to operate jai-alai is
imbued with public interest and involves an exercise of police power. The familiar rule is that
laws which grant the right to exercise a part of the police power of the state are to be
construed strictly and any doubt must be resolved against the grant.33 The legislature is
regarded as the guardian of society, and therefore is not presumed to disable itself or
abandon the discharge of its duty. Thus, courts do not assume that the legislature intended
to part away with its power to regulate public morals.34 The presumption is influenced by
constitutional considerations. Constitutions are widely understood to withhold from legislatures any
authority to bargain away their police power35for the power to protect the public interest is beyond
abnegation.
It is stressed that the case at bar does not involve a franchise to operate a public utility (such as
water, transportation, communication or electricity) – the operation of which undoubtedly redounds to
the benefit of the general public. What is claimed is an alleged legislative grant of a gambling
franchise – a franchise to operate jai-alai. A statute which legalizes a gambling activity or business
should be strictly construed and every reasonable doubt must be resolved to limit the powers and
rights claimed under its authority.36
The dissent would like to make capital of the fact that the cases of Stone vs.
Mississippi and Aicardi vs. Alabamaare not on all fours to the cases at bar and, hence, the rulings
therein do not apply. The perceived incongruity is more apparent than real.
Stone37 involves a contract entered into by the State of Mississippi with the plaintiffs which allowed
the latter to sell and dispose of certificates of subscription which would entitle the holders thereof to
such prizes as may be awarded to them, by the casting of lots or by lot, chance or otherwise. The
contract was entered into by plaintiffs pursuant to their charter entitled "An Act Incorporating the
Mississippi Agricultural, Educational and Manufacturing Aid Society" which purportedly granted them
the franchise to issue and sell lottery tickets. However, the state constitution expressly prohibits the
legislature from authorizing any lottery or allowing the sale of lottery tickets. Mississippi law makes it
unlawful to conduct a lottery.
The question raised in Stone concerned the authority of the plaintiffs to exercise the franchise or
privilege of issuing and selling lottery tickets. This is essentially the issue involved in the cases at
bar, that is, whether PAGCOR’s charter includes the franchise to operate jai-alai frontons. Moreover,
even assuming arguendo that the facts in the cases at bar are not identical, the principles of law laid
down in Stone are illuminating. For one, it was held in Stonethat:
"Experience has shown that the common forms of gambling are comparatively innocuous when
placed in contrast with the wide-spread pestilence of lotteries. The former are confined to a few
persons and places, but the latter infests the whole community; it enters every dwelling; it reaches
every class; it preys upon the hard earnings of the poor; and it plunders the ignorant and simple. x x
x"38
The verity that all species of gambling are pernicious prompted the Mississippi Court to rule that the
legislature cannot bargain away public health or public morals. We can take judicial notice of the fact
that jai-alai frontons have mushroomed in every nook and corner of the country. They are accessible
to everyone and they specially mangle the morals of the marginalized sector of society. It cannot be
gainsaid that there is but a miniscule of a difference between jai-alai and lottery with respect to the
evils sought to be prevented.
In the case of Aicardi vs. Alabama, Moses & Co. was granted a legislative franchise to carry on
gaming in the form specified therein, and its agent, Antonio Aicardi, was indicted for keeping a
gaming table. In ascertaining whether the scope of the company’s franchise included the right to
keep a gaming table, the Court there held that "such an Act should be construed strictly. Every
reasonable doubt should be so resolved as to limit the powers and rights claimed under its authority.
Implications and intendments should have no place except as they are inevitable from the language
or the context."
The view expressed in the dissent that the aforequoted ruling was taken out of context is perched on
the premise that PAGCOR’s franchise is couched in a language that is broad enough to cover the
operations of jai-alai. This view begs the question for as shown in our disquisition, PAGCOR's
franchise is restricted only to the operation of gambling casinos. Aicardi supports the thesis that a
gambling franchise should be strictly construed due to its ill-effects on public order and morals.
SEVENTH. The dissent also insists that the legislative intent must be sought first of all in the
language of the statute itself. In applying a literal interpretation of the provision under Section 11 of
P.D. 1869 that "x x x the Corporation is hereby granted x x x the rights, privileges, and authority to
operate and maintain gambling casinos, clubs, and other recreation or amusement places, sports,
gaming pools, i.e., basketball, football, lotteries, etc. x x x," it contends that the extent and nature of
PAGCOR’s franchise is so broad that literally all kinds of sports and gaming pools, including jai-alai,
are covered therein. It concluded that since under Section 11 of P.D. No. 1869, games of skill like
basketball and football have been lumped together with the word "lotteries" just before the word
"etc." and after the words "gaming pools," it may be deduced from the wording of the law that when
bets or stakes are made in connection with the games of skill, they may be classified as games of
chance under the coverage of PAGCOR’s franchise.
We reject this simplistic reading of the law considering the social, moral and public policy
implications embedded in the cases at bar. The plain meaning rule used in the dissent rests on the
assumption that there is no ambiguity or obscurity in the language of the law. The fact, however, that
the statute admits of different interpretations is the best evidence that the statute is vague and
ambiguous.39 It is widely acknowledged that a statute is ambiguous when it is capable of being
understood by reasonably well-informed persons in either of two or more senses.40 In the cases at
bar, it is difficult to see how a literal reading of the statutory text would unerringly reveal the
legislative intent. To be sure, the term "jai-alai" was never used and is nowhere to be found in the
law. The conclusion that it is included in the franchise granted to PAGCOR cannot be based on a
mere cursory perusal of and a blind reliance on the ordinary and plain meaning of the statutory terms
used such as "gaming pools" and "lotteries." Sutherland tells us that a statute is "ambiguous", and so
open to explanation by extrinsic aids, not only when its abstract meaning or the connotation of its
terms is uncertain, but also when it is uncertain in its application to, or effect upon, the fact-situation
of the case at bar.41
Similarly, the contention in the dissent that :
" x x x Even if the Court is fully persuaded that the legislature really meant and intended something
different from what it enacted, and that the failure to convey the real meaning was due to
inadvertence or mistake in the use of the language, yet, if the words chosen by the legislature are
not obscure or ambiguous, but convey a precise and sensible meaning (excluding the case of
obvious clerical errors or elliptical forms of expression), then the Court must take the law as it finds
it, and give it its literal interpretation, without being influenced by the probable legislative meaning
lying at the back of the words. In that event, the presumption that the legislature meant what it said,
though it be contrary to the fact, is conclusive."
cannot apply in the cases at bar considering that it has not been shown that the failure to convey the
true intention of the legislature is attributable to inadvertence or a mistake in the language used.
EIGHTH. Finally, there is another reason why PAGCOR's claim to a legislative grant of a franchise
to operate jai-alai should be subjected to stricter scrutiny. The so-called legislative grant to
PAGCOR did not come from a real Congress. It came from President Marcos who assumed
legislative powers under martial law. The grant is not the result of deliberations of the duly elected
representatives of our people.
This is not to assail President Marcos’ legislative powers granted by Amendment No. 6 of the 1973
Constitution, as the dissent would put it. It is given that in the exercise of his legislative power,
President Marcos legally granted PAGCOR's franchise to operate gambling casinos. The validity of
this franchise to operate gambling casinos is not, however, the issue in the cases at bar. The issue
is whether this franchise to operate gambling casinos includes the privilege to operate jai-alai.
PAGCOR says it does. We hold that it does not. PAGCOR's overarching claim should be given the
strictest scrutiny because it was granted by one man who governed when the country was under
martial law and whose governance was repudiated by our people in EDSA 1986. The reason for this
submission is rooted in the truth that PAGCOR's franchise was not granted by a real Congress
where the passage of a law requires a more rigorous process in terms of floor deliberations and
voting by members of both the House and the Senate. It is self-evident that there is a need to be
extra cautious in treating this alleged grant of a franchise as a grant by the legislature, as a
grant by the representatives of our people, for plainly it is not. We now have a real Congress
and it is best to let Congress resolve this issue considering its policy ramifications on public order
and morals. 1âwphi1
In view of this ruling, we need not resolve the other issues raised by petitioners.
WHEREFORE, the petitions are GRANTED. Respondents PAGCOR, Belle Jai Alai Corporation and
Filipinas Gaming Entertainment Totalizator Corporation are ENJOINED from managing, maintaining
and operating jai-alai games, and from enforcing the agreement entered into by them for that
purpose.
SO ORDERED.
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN;

JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-
CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ
ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE,
BAY AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY
GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER
MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR,
YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES;
PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF
BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAP A
CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,

vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO
OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,

vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN

FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,

vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.;
THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY SECRETARY
FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY
CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT

EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO
DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT
OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY
(CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL
WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA
PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF
AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR
HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND MANAGEMENT BUREAU
EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT
OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES;
PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE L.

JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF
THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of the Disbursement
Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of the
Department of Budget and Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision of
the fundamental law that firmly ordains that "[n]o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." The tenor and context of the challenges posed by the
petitioners against the DAP indicate that the DAP contravened this provision by allowing the
Executive to allocate public money pooled from programmed and unprogrammed funds of its various
agencies in the guise of the President exercising his constitutional authority under Section 25(5) of
the 1987 Constitution to transfer funds out of savings to augment the appropriations of offices within
the Executive Branch of the Government. But the challenges are further complicated by the
interjection of allegations of transfer of funds to agencies or offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of
the Philippines to reveal that some Senators, including himself, had been allotted an additional ₱50
Million each as "incentive" for voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public
statement entitled Abad: Releases to Senators Part of Spending Acceleration Program,1 explaining
that the funds released to the Senators had been part of the DAP, a program designed by the DBM
to ramp up spending to accelerate economic expansion. He clarified that the funds had been
released to the Senators based on their letters of request for funding; and that it was not the first
time that releases from the DAP had been made because the DAP had already been instituted in
2011 to ramp up spending after sluggish disbursements had caused the growth of the gross
domestic product (GDP) to slow down. He explained that the funds under the DAP were usually
taken from (1) unreleased appropriations under Personnel Services;2 (2) unprogrammed funds; (3)
carry-over appropriations unreleased from the previous year; and (4) budgets for slow-moving items
or projects that had been realigned to support faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had been sourced from
savings generated by the Government, and from unprogrammed funds; and that the savings had
been derived from (1) the pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year, unreleased appropriations of slow-
moving projects and discontinued projects per zero based budgeting findings;5 and (2) the
withdrawal of unobligated allotments also for slow-moving programs and projects that had been
earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of savings,6 namely: (1) Section
25(5), Article VI of the 1987 Constitution, which granted to the President the authority to augment an
item for his office in the general appropriations law; (2) Section 49 (Authority to Use Savings for
Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter 5, Book VI
of Executive Order (EO) No. 292 (Administrative Code of 1987); and (3) the General Appropriations
Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use of savings; (b)
meanings of savings and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special
provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to the
consciousness of the Nation for the first time, and made this present controversy inevitable. That the
issues against the DAP came at a time when the Nation was still seething in anger over
Congressional pork barrel – "an appropriation of government spending meant for localized projects
and secured solely or primarily to bring money to a representative’s district"7 – excited the Nation as
heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP were
filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013; G.R. No.
209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No.
209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013; G.R. No.
209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on October 29, 2013; G.R. No.
209517 (COURAGE), on November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541 (Adoption
of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012), alleging that NBC No. 541, which was issued to implement the DAP, directed the withdrawal
of unobligated allotments as of June 30, 2012 of government agencies and offices with low levels of
obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the Office of the Solicitor
General (OSG).
The Court directed the holding of oral arguments on the significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the parties during the oral
arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the
constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive issuances allegedly implementing the DAP.
Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing
the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments withdrawn from
government agencies as "savings" as the term is used in Sec. 25(5), in relation to the
provisions of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs not provided in the
GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and
balances, and (3) the principle of public accountability enshrined in the 1987 Constitution
considering that it authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary restraining order to
restrain the implementation of the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support
its argument regarding the President’s power to spend. During the oral arguments, the propriety of
releasing unprogrammed funds to support projects under the DAP was considerably discussed. The
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled on unprogrammed
funds in their respective memoranda. Hence, an additional issue for the oral arguments is stated as
follows:
F. Whether or not the release of unprogrammed funds under the DAP was in accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a list
of savings brought under the DAP that had been sourced from (a) completed programs; (b)
discontinued or abandoned programs; (c) unpaid appropriations for compensation; (d) a certified
copy of the President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all
circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their Realignment);10
(2) Circulars and orders, which the respondents identified as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for FY
2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds for
FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY
2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of
Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised Guidelines on
the Submission of Quarterly Accountability Reports on Appropriations, Allotments,
Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release
System in the Government).
(3) A breakdown of the sources of savings, including savings from discontinued projects and
unpaid appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014 directing
the respondents to submit the documents not yet submitted in compliance with the directives of the
Court or its Members, submitted several evidence packets to aid the Court in understanding the
factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the DBM through Sec.
Abad, inclusive of annexes, listing in detail the 116 DAP identified projects approved and
duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed
Disbursement Acceleration Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12, 2011 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of funds for
other priority projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed Priority
Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment to Fund the
Quarterly Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for the Task
Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their
corresponding Special Allotment Release Orders (SAROs) and appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual Financial
Report (AFR) of the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and

Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending the
withdrawal of funds from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation for the
January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the sources
of funds brought under the DAP, the uses of such funds per project or activity pursuant to DAP, and
the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further compliance with the
Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the
revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the original revenue targets, which
certifications were required for the release of the unprogrammed funds as provided in Special
Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs; and
(2) A report on releases of savings of the Executive Department for the use of the Constitutional
Commissions and other branches of the Government, as well as the fund releases to the Senate and
the Commission on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the
issuance of writs of preliminary prohibitory injunction or temporary restraining orders. More
specifically, the nature of the petitions is individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus

G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for adjudication in the
absence of adverse claims between the parties;19 that the petitioners lacked legal standing to sue
because no allegations were made to the effect that they had suffered any injury as a result of the
adoption of the DAP and issuance of NBC No. 541; that their being taxpayers did not immediately
confer upon the petitioners the legal standing to sue considering that the adoption and
implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the taxing
or spending power of Congress;20 and that even if the petitioners had suffered injury, there were
plain, speedy and adequate remedies in the ordinary course of law available to them, like assailing
the regularity of the DAP and related issuances before the Commission on Audit (COA) or in the trial
courts.21
The respondents aver that the special civil actions of certiorari and prohibition are not proper actions
for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the other
executive issuances implementing the DAP.22
In their memorandum, the respondents further contend that there is no authorized proceeding under
the Constitution and the Rules of Court for questioning the validity of any law unless there is an
actual case or controversy the resolution of which requires the determination of the constitutional
question; that the jurisdiction of the Court is largely appellate; that for a court of law to pass upon the
constitutionality of a law or any act of the Government when there is no case or controversy is for
that court to set itself up as a reviewer of the acts of Congress and of the President in violation of the
principle of separation of powers; and that, in the absence of a pending case or controversy
involving the DAP and NBC No. 541, any decision herein could amount to a mere advisory opinion
that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations that the petitioners
can question either in the trial courts or in the COA; that if the petitioners are dissatisfied with the
ruling either of the trial courts or of the COA, they can appeal the decision of the trial courts by
petition for review on certiorari, or assail the decision or final order of the COA by special civil action
for certiorari under Rule 64 of the Rules of Court.24
The respondents’ arguments and submissions on the procedural issue are bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower courts as may be
established by law. In creating a lower court, Congress concomitantly determines the jurisdiction of
that court, and that court, upon its creation, becomes by operation of the Constitution one of the
repositories of judicial power.25 However, only the Court is a constitutionally created court, the rest
being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of justice not only "to settle
actual controversies involving rights which are legally demandable and enforceable" but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." It has thereby expanded
the concept of judicial power, which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the 1987 Constitution were
laid out during the deliberations of the 1986 Constitutional Commission by Commissioner Roberto R.
Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions
on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell
your wife what her duties as such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them by actual compulsion would be
highly derogatory to human dignity." This is why the first part of the second paragraph of Section 1
provides that: Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential
system of government, the Supreme Court has, also, another important function. The powers of
government are generally considered divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of
that supremacy power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction
or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass
judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a political
question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of

judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to
settle actual controversies…" The term "actual controversies" according to the Commissioner should
refer to questions which are political in nature and, therefore, the courts should not refuse to decide
those political questions. But do I understand it right that this is restrictive or only an example? I
know there are cases which are not actual yet the court can assume jurisdiction. An example is the
petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the
Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with
jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a
question as to whether the government had authority or had abused its authority to the extent of
lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has
the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of judicial review and the
great responsibility of the Judiciary in maintaining the allocation of powers among the three great
branches of Government. Speaking for the Court in Angara v. Electoral Commission,28 Justice Jose
P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the proper allocation of powers
between the several department and among the integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other department; it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined under
the Constitution?
The present Rules of Court uses two special civil actions for determining and correcting grave abuse
of discretion amounting to lack or excess of jurisdiction. These are the special civil actions for
certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari exists
under Rule 64, but the remedy is expressly applicable only to the judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly explained in
Delos Santos v. Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out
of Chancery, or the King’s Bench, commanding agents or officers of the inferior courts to return the
record of a cause pending before them, so as to give the party more sure and speedy justice, for the
writ would enable the superior court to determine from an inspection of the record whether the
inferior court’s judgment was rendered without authority. The errors were of such a nature that, if
allowed to stand, they would result in a substantial injury to the petitioner to whom no other remedy
was available. If the inferior court acted without authority, the record was then revised and corrected
in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be
exceeding its jurisdiction or was not proceeding according to essential requirements of law and
would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the same as it has been
in the common law. In this jurisdiction, however, the exercise of the power to issue the writ of
certiorari is largely regulated by laying down the instances or situations in the Rules of Court in
which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1, Rule
65 of the Rules of Court compellingly provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the
commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse
of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be
grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in
contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial
powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it is a corrective remedy used for the re-examination of
some action of an inferior tribunal, and is directed to the cause or proceeding in the lower court and
not to the court itself, while prohibition is a preventative remedy issuing to restrain future action, and
is directed to the court itself.32 The Court expounded on the nature and function of the writ of
prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a
quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings when said proceedings
are without or in excess of said entity’s or person’s jurisdiction, or are accompanied with grave
abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law. Prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a
lower court within the limits of its jurisdiction in order to maintain the administration of justice in
orderly channels. Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or
power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its
cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is
no adequate remedy available in the ordinary course of law by which such relief can be obtained.
Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for
its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any
case, petitioners’ allegation that "respondents are performing or threatening to perform functions
without or in excess of their jurisdiction" may appropriately be enjoined by the trial court through a
writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-
judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This
application is expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, the Court is not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been thereby entrusted expressly
or by necessary implication with both the duty and the obligation of determining, in appropriate
cases, the validity of any assailed legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the Court has become
more alert to discharge its constitutional duty. We will not now refrain from exercising our expanded
judicial power in order to review and determine, with authority, the limitations on the Chief
Executive’s spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following, namely: (1) there
must bean actual case or justiciable controversy before the Court; (2) the question before the Court
must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the
issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of
the case.36
The first requisite demands that there be an actual case calling for the exercise of judicial power by
the Court.37 An actual case or controversy, in the words of Belgica v. Executive Secretary Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible
of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. In other
words, "[t]here must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence." Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. It is a prerequisite that something had then
been accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action." "Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of the
perspectives of the parties on the constitutionality of the DAP and its relevant issuances satisfy the
requirement for a conflict between legal rights. The issues being raised herein meet the requisite
ripeness considering that the challenged executive acts were already being implemented by the
DBM, and there are averments by the petitioners that such implementation was repugnant to the
letter and spirit of the Constitution. Moreover, the implementation of the DAP entailed the allocation
and expenditure of huge sums of public funds. The fact that public funds have been allocated,
disbursed or utilized by reason or on account of such challenged executive acts gave rise, therefore,
to an actual controversy that is ripe for adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as a
program had been meanwhile discontinued because it had fully served its purpose, saying: "In
conclusion, Your Honors, may I inform the Court that because the DAP has already fully served its
purpose, the Administration’s economic managers have recommended its termination to the
President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a program, and urged
that its termination had already mooted the challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge its
constitutionality. Any constitutional challenge should no longer be at the level of the program, which
is now extinct, but at the level of its prior applications or the specific disbursements under the now
defunct policy. We challenge the petitioners to pick and choose which among the 116 DAP projects
they wish to nullify, the full details we will have provided by February 5. We urge this Court to be
cautious in limiting the constitutional authority of the President and the Legislature to respond to the
dynamic needs of the country and the evolving demands of governance, lest we end up straight
jacketing our elected representatives in ways not consistent with our constitutional structure and
democratic principles.40
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was a supervening event that
effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of
judicial review despite the cases being rendered moot and academic by supervening events, like: (1)
when there was a grave violation of the Constitution; (2) when the case involved a situation of
exceptional character and was of paramount public interest; (3) when the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4)
when the case was capable of repetition yet evading review.42
Assuming that the petitioners’ several submissions against the DAP were ultimately sustained by the
Court here, these cases would definitely come under all the exceptions. Hence, the Court should not
abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance in a
court of justice on a given question."43 The concept of legal standing, or locus standi, was particularly
discussed in De Castro v. Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the determination of the locus
standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of
the Court to correct any official action or policy in order to avoid obstructing the efficient functioning
of public officials and offices involved in public service. It is required, therefore, that the petitioner
must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v.
Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions." Accordingly, it has been held that the interest of a person assailing the constitutionality of
a statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that the
person who would assail the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in
Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-
Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test were
allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues
raised by the petition due to their "far reaching implications," even if the petitioner had no personality
to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their
suits involving the constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents the
public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition that he
is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in general,
such capacities nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff
is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter
of mere public right, however…the people are the real parties…It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and punished, and that
a public grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right
of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co., Inc.46 that
"[s]tanding is a peculiar concept in constitutional law because in some cases, suits are not brought
by parties who have been personally injured by the operation of a law or any other government act
but by concerned citizens, taxpayers or voters who actually sue in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their
capacities as taxpayers who, by averring that the issuance and implementation of the DAP and its
relevant issuances involved the illegal disbursements of public funds, have an interest in preventing
the further dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and G.R. No.
209442 (Belgica) also assert their right as citizens to sue for the enforcement and observance of the
constitutional limitations on the political branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to
bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his additional
capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work
for the rule of law and of paramount importance of the question in this action, not to mention its civic
duty as the official association of all lawyers in this country."49
Under their respective circumstances, each of the petitioners has established sufficient interest in
the outcome of the controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power of the Chief Executive to
disburse and allocate public funds, whether appropriated by Congress or not, these cases pose
issues that are of transcendental importance to the entire Nation, the petitioners included. As such,
the determination of such important issues call for the Court’s exercise of its broad and wise
discretion "to waive the requirement and so remove the impediment to its addressing and resolving
the serious constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly appreciating
and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the Latin
word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the
financial program of the National Government for a designated fiscal year, consisting of the
statements of estimated receipts and expenditures for the fiscal year for which it was intended to be
effective based on the results of operations during the preceding fiscal years. The term was given a
different meaning under Republic Act No. 992 (Revised Budget Act) by describing the budget as the
delineation of the services and products, or benefits that would accrue to the public together with the
estimated unit cost of each type of service, product or benefit.52 For a forthright definition, budget
should simply be identified as the financial plan of the Government,53 or "the master plan of
government."54
The concept of budgeting has not been the product of recent economies. In reality, financing public
goals and activities was an idea that existed from the creation of the State.55 To protect the people,
the territory and sovereignty of the State, its government must perform vital functions that required
public expenditures. At the beginning, enormous public expenditures were spent for war activities,
preservation of peace and order, security, administration of justice, religion, and supply of limited
goods and services.56 In order to finance those expenditures, the State raised revenues through
taxes and impositions.57 Thus, budgeting became necessary to allocate public revenues for specific
government functions.58 The State’s budgeting mechanism eventually developed through the years
with the growing functions of its government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public financial institutions.
This is because of the country’s past as a colony successively of Spain and the United States for a
long period of time. Many aspects of the country’s public fiscal administration, including its Budget
System, have been naturally patterned after the practices and experiences of the western public
financial institutions. At any rate, the Philippine Budget System is presently guided by two principal
objectives that are vital to the development of a progressive democratic government, namely: (1) to
carry on all government activities under a comprehensive fiscal plan developed, authorized and
executed in accordance with the Constitution, prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and disclosure of the budgetary status of the
Government in such detail so that persons entrusted by law with the responsibility as well as the
enlightened citizenry can determine the adequacy of the budget actions taken, authorized or
proposed, as well as the true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up to
the passage of the Jones Law in 1916. A Budget Office was created within the Department of
Finance by the Jones Law to discharge the budgeting function, and was given the responsibility to
assist in the preparation of an executive budget for submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were established,
and subsequently strengthened through the enactment of laws and executive acts.61 EO No. 25,
issued by President Manuel L. Quezon on April 25, 1936, created the Budget Commission to serve
as the agency that carried out the President’s responsibility of preparing the budget.62 CA No. 246,
the first budget law, went into effect on January 1, 1938 and established the Philippine budget
process. The law also provided a line-item budget as the framework of the Government’s budgeting
system,63 with emphasis on the observance of a "balanced budget" to tie up proposed expenditures
with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA)
No. 992,whereby Congress introduced performance-budgeting to give importance to functions,
projects and activities in terms of expected results.64 RA No. 992 also enhanced the role of the
Budget Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms that
culminated in the enactment of PD No. 1177 that President Marcos issued on July30, 1977, and of
PD No. 1405, issued on June 11, 1978. The latter decree converted the Budget Commission into the
Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under EO
No. 711. The OBM became the DBM pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2)
Budget Legislation; (3) Budget Execution; and (4) Accountability. Each phase is distinctly separate
from the others but they overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the DBM.
The Budget Call contains budget parameters earlier set by the Development Budget Coordination
Committee (DBCC) as well as policy guidelines and procedures to aid government agencies in the
preparation and submission of their budget proposals. The Budget Call is of two kinds, namely: (1) a
National Budget Call, which is addressed to all agencies, including state universities and colleges;
and (2) a Corporate Budget Call, which is addressed to all government-owned and -controlled
corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their
respective Agency Budget Proposals to the DBM. To boost citizen participation, the current
administration has tasked the various departments and agencies to partner with civil society
organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals,
which proposals are then presented before a technical panel of the DBM in scheduled budget
hearings wherein the various departments and agencies are given the opportunity to defend their
budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up with
recommendations for the Executive Review Board, comprised by the DBM Secretary and the DBM’s
senior officials. The discussions of the Executive Review Board cover the prioritization of programs
and their corresponding support vis-à-vis the priority agenda of the National Government, and their
implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure
Program (NEP)and a Budget of Expenditures and Sources of Financing (BESF). The NEP provides
the details of spending for each department and agency by program, activity or project (PAP), and is
submitted in the form of a proposed GAA. The Details of Selected Programs and Projects is the
more detailed disaggregation of key PAPs in the NEP, especially those in line with the National
Government’s development plan. The Staffing Summary provides the staffing complement of each
department and agency, including the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the
Cabinet for further refinements or reprioritization. Once the NEP and the BESF are approved by the
President and the Cabinet, the DBM prepares the budget documents for submission to Congress.
The budget documents consist of: (1) the President’s Budget Message, through which the President
explains the policy framework and budget priorities; (2) the BESF, mandated by Section 22, Article
VII of the Constitution,68 which contains the macroeconomic assumptions, public sector context,
breakdown of the expenditures and funding sources for the fiscal year and the two previous years;
and (3) the NEP.
Public or government expenditures are generally classified into two categories, specifically: (1)
capital expenditures or outlays; and (2) current operating expenditures. Capital expenditures are the
expenses whose usefulness lasts for more than one year, and which add to the assets of the
Government, including investments in the capital of government-owned or controlled corporations
and their subsidiaries.69 Current operating expenditures are the purchases of goods and services in
current consumption the benefit of which does not extend beyond the fiscal year.70 The two
components of current expenditures are those for personal services (PS), and those for
maintenance and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into: (1) economic
development expenditures (i.e., expenditures on agriculture and natural resources, transportation
and communications, commerce and industry, and other economic development efforts);71 (2) social
services or social development expenditures (i.e., government outlay on education, public health and
medicare, labor and welfare and others);72 (3) general government or general public services
expenditures (i.e., expenditures for the general government, legislative services, the administration
of justice, and for pensions and gratuities);73 (4) national defense expenditures (i.e., sub-divided into
national security expenditures and expenditures for the maintenance of peace and order);74 and (5)
public debt.75
Public expenditures may further be classified according to the nature of funds, i.e., general fund,
special fund or bond fund.76
On the other hand, public revenues complement public expenditures and cover all income or
receipts of the government treasury used to support government expenditures.77
Classical economist Adam Smith categorized public revenues based on two principal sources,
stating: "The revenue which must defray…the necessary expenses of government may be drawn
either, first from some fund which peculiarly belongs to the sovereign or commonwealth, and which
is independent of the revenue of the people, or, secondly, from the revenue of the people."78 Adam
Smith’s classification relied on the two aspects of the nature of the State: first, the State as a juristic
person with an artificial personality, and, second, the State as a sovereign or entity possessing
supreme power. Under the first aspect, the State could hold property and engage in trade, thereby
deriving what is called its quasi private income or revenues, and which "peculiarly belonged to the
sovereign." Under the second aspect, the State could collect by imposing charges on the revenues
of its subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following sources, to wit: (1) tax
revenues(i.e., compulsory contributions to finance government activities); 80 (2) capital
revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof and public domain, and
gains on such sales like sale of public lands, buildings and other structures, equipment, and other
properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids given to the
Government for its operation on specific purposes in the form of money and/or materials, and do not
require any monetary commitment on the part of the recipient);82 (4) extraordinary income(i.e.,
repayment of loans and advances made by government corporations and local governments and the
receipts and shares in income of the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public
borrowings(i.e., proceeds of repayable obligations generally with interest from domestic and foreign
creditors of the Government in general, including the National Government and its political
subdivisions).84
More specifically, public revenues are classified as follows:85
General Income Specific Income
1. Subsidy Income from National 1. Income Taxes

Government
2. Property Taxes
2. Subsidy from Central Office
3. Taxes on Goods and Services
3. Subsidy from Regional
Office/Staff Bureaus 4. Taxes on International Trade and
Transactions
4. Income from Government
Services 5. Other Taxes 6.Fines and Penalties-Tax Revenue
5. Income from Government 7. Other Specific Income

Business Operations
6. Sales Revenue
7. Rent Income
8. Insurance Income
9. Dividend Income
10. Interest Income
11. Sale of Confiscated Goods and

Properties
12. Foreign Exchange (FOREX)

Gains
13. Miscellaneous Operating and

Service Income
14. Fines and Penalties-Government

Services and Business Operations
15. Income from Grants and

Donations
c.2. Budget Legislation86
The Budget Legislation Phase covers the period commencing from the time Congress receives the
President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s approval of the
GAA. This phase is also known as the Budget Authorization Phase, and involves the significant
participation of the Legislative through its deliberations.
Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations

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

promote economic growth
Policy is always a part of every budget and fiscal decision of any Administration.99 The national
budget the Executive prepares and presents to Congress represents the Administration’s "blueprint
for public policy" and reflects the Government’s goals and strategies.100 As such, the national budget
becomes a tangible representation of the programs of the Government in monetary terms, specifying
therein the PAPs and services for which specific amounts of public funds are proposed and
allocated.101 Embodied in every national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and transparency
in government spending a significant focus of his Administration. Yet, although such focus resulted
in an improved fiscal deficit of 0.5% in the gross domestic product (GDP) from January to July of
2011, it also unfortunately decelerated government project implementation and payment
schedules.103 The World Bank observed that the Philippines’ economic growth could be reduced, and
potential growth could be weakened should the Government continue with its underspending and fail
to address the large deficiencies in infrastructure.104 The economic situation prevailing in the middle
of 2011 thus paved the way for the development and implementation of the DAP as a stimulus
package intended to fast-track public spending and to push economic growth by investing on high-
impact budgetary PAPs to be funded from the "savings" generated during the year as well as from
unprogrammed funds.105 In that respect, the DAP was the product of "plain executive policy-making"
to stimulate the economy by way of accelerated spending.106The Administration would thereby
accelerate government spending by: (1) streamlining the implementation process through the
clustering of infrastructure projects of the Department of Public Works and Highways (DPWH) and
the Department of Education (DepEd),and (2) front loading PPP-related projects107 due for
implementation in the following year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial implementation of the DAP,
revealed that the DAP was partially successful. The disbursements under the DAP contributed 1.3
percentage points to GDP growth by the fourth quarter of 2011.110 The continued implementation of
the DAP strengthened growth by 11.8% year on year while infrastructure spending rebounded from
a 29% contraction to a 34% growth as of September 2013.111
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the
Government could use to direct the economies towards growth and development.112 The
Government, by spending on public infrastructure, would signify its commitment of ensuring
profitability for prospective investors.113 The PAPs funded under the DAP were chosen for this reason
based on their: (1) multiplier impact on the economy and infrastructure development; (2) beneficial
effect on the poor; and (3) translation into disbursements.114
b. History of the implementation of

the DAP, and sources of funds
under the DAP
How the Administration’s economic managers conceptualized and developed the DAP, and finally
presented it to the President remains unknown because the relevant documents appear to be
scarce.
The earliest available document relating to the genesis of the DAP was the memorandum of October
12,2011 from Sec. Abad seeking the approval of the President to implement the proposed DAP. The
memorandum, which contained a list of the funding sources for ₱72.11 billion and of the proposed
priority projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS

AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program
totaling ₱72.11 billion. We are already working with all the agencies concerned for the immediate
execution of the projects therein.
A. Fund Sources for the Acceleration Program
Amount
Action
Fund Sources (In million Description
Requested
Php)
FY 2011 30,000 Unreleased Personnel Declare as

Unreleased Services (PS) savings and
Personal appropriations which approve/
Services (PS) will lapse at the end of authorize its use
Appropriations FY 2011 but may be for the 2011
pooled as savings and Disbursement
realigned for priority Acceleration
programs that require Program
immediate funding
FY 2011 482 Unreleased

Unreleased appropriations (slow
Appropriations moving projects and
programs for
discontinuance)
FY 2010 12,336 Supported by the GFI Approve and

Unprogrammed Dividends authorize its use
Fund for the 2011
Disbursement
Acceleration
Program
FY 2010 21,544 Unreleased With prior

Carryover appropriations (slow approval from
Appropriation moving projects and the President in
programs for November 2010
discontinuance) and to declare as
savings from Zero-based Budgeting savings and with
Initiative authority to use
for priority
projects
FY 2011 Budget 7,748 FY 2011 Agency For information

items for Budget items that can
realignment be realigned within the
agency to fund new fast
disbursing projects
DPWH-3.981 Billion
DA – 2.497 Billion
DOT – 1.000 Billion
DepEd – 270 Million
TOTAL 72.110
B. Projects in the Disbursement Acceleration Program
(Descriptions of projects attached as Annex A)
GOCCs and GFIs
Agency/Project Allotment
(SARO and NCA Release) (in Million Php)
1. LRTA: Rehabilitation of LRT 1 and 2 1,868
2. NHA: 11,050
a. Resettlement of North Triangle residents to 450

Camarin A7
b. Housing for BFP/BJMP 500
c. On-site development for families living 10,000
along dangerous
d. Relocation sites for informal settlers 100
along Iloilo River and its tributaries
3. PHIL. HEART CENTER: Upgrading of 357

ageing physical plant and medical equipment
4. CREDIT INFO CORP: Establishment of 75

centralized credit information system
5. PIDS: purchase of land to relocate the PIDS 100
office and building construction
6. HGC: Equity infusion for credit insurance 400
and mortgage guaranty operations of HGC
7. PHIC: Obligations incurred (premium 1,496

subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] – Dec
2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
pay the full amount.
8. Philpost: Purchase of foreclosed property. 644

Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege
9. BSP: First equity infusion out of Php 40B 10,000

capitalization under the BSP Law
10. PCMC: Capital and Equipment Renovation 280
11. LCOP: 105

a. Pediatric Pulmonary Program
b. Bio-regenerative Technology Program 35
(Stem-Cell Research – subject to legal
review and presentation) 70
12. TIDCORP: NG Equity infusion 570
TOTAL 26,945
NGAs/LGUs
Agency/Project Allotment
(SARO) Cash
(In Million Requirement
Php) (NCA)
13. DOF-BIR: NPSTAR

centralization of data
processing and others (To be
synchronized with GFMIS
activities) 758 758
14. COA: IT infrastructure

program and hiring of
additional litigational experts 144 144
15. DND-PAF: On Base Housing

Facilities and Communication
Equipment 30 30
16. DA: 2,959 2,223

a. Irrigation, FMRs and
Integrated Community Based Multi-Species
Hatchery and Aquasilvi
Farming 1,629 1,629
b. Mindanao Rural
Development Project 919 183
c. NIA Agno River Integrated

Irrigation Project 411 411
17. DAR: 1,293 1,293

a. Agrarian Reform
Communities Project 2 1,293 132
b. Landowners Compensation 5,432
18. DBM: Conduct of National

Survey of
Farmers/Fisherfolks/Ips 625 625
19. DOJ: Operating requirements

of 50 investigation agents and
15 state attorneys 11 11
20. DOT: Preservation of the Cine

Corregidor Complex 25 25
21. OPAPP: Activities for Peace

Process (PAMANA- Project
details: budget breakdown,
implementation plan, and
conditions on fund release
attached as Annex B) 1,819 1,819
22. DOST 425 425

a. Establishment of National
Meterological and Climate
Center 275 275
b. Enhancement of Doppler
Radar Network for National
Weather Watch, Accurate
Forecasting and Flood Early
Warning 190 190
23. DOF-BOC: To settle the

principal obligations with
PDIC consistent with the
agreement with the CISS and
SGS 2,800 2,800
24. OEO-FDCP: Establishment of

the National Film Archive and
local cinematheques, and other
local activities 20 20
25. DPWH: Various infrastructure
projects 5,500 5,500
26. DepEd/ERDT/DOST: Thin

Client Cloud Computing
Project 270 270
27. DOH: Hiring of nurses and

midwives 294 294
28. TESDA: Training Program in

partnership with BPO industry
and other sectors 1,100 1,100
29. DILG: Performance Challenge

Fund (People Empowered
Community Driven
Development with DSWD and
NAPC) 250 50
30. ARMM: Comprehensive Peace

and Development Intervention 8,592 8,592
31. DOTC-MRT: Purchase of

additional MRT cars 4,500 -
32. LGU Support Fund 6,500 6,500
33. Various Other Local Projects 6,500 6,500
34. Development Assistance to the

Province of Quezon 750 750
TOTAL 45,165 44,000
C. Summary
Fund Sources
Identified for Allotments Cash
Approval for Release Requirements for
(In Million Release in FY
Php) 2011
Total 72,110 72,110 70,895
GOCCs 26,895 26,895
NGAs/LGUs 45,165 44,000
For His Excellency’s Consideration
(Sgd.) FLORENCIO B. ABAD
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum for the President
dated December 12, 2011116 requesting omnibus authority to consolidate the savings and unutilized
balances for fiscal year 2011. Pertinent portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate savings/unutilized
balances in FY 2011 corresponding to completed or discontinued projects which may be pooled to
fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even if their
implementation carries over to 2012 without necessarily impacting on our budget deficit cap next
year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the agencies’
operations, particularly on the implementation of their projects/activities, including expenses
incurred in undertaking the same, have identified savings out of the 2011 General
Appropriations Act. Said savings correspond to completed or discontinued projects under
certain departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated during preparation
of the budget;
1.2 to augment additional requirements of on-going priority projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF,
Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class allocation as a result
of on-going priority projects and implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus authority to pool
savings/unutilized balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM shall secure the
corresponding approval/confirmation of the President. Furthermore, it is assured that the
proposed realignments shall be within the authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be sourced from
the said pooled appropriations in FY 2010 that will expire on December 31, 2011 and
appropriations in FY 2011 that may be declared as savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be spent for
the projects that we have identified to be immediate actual disbursements
considering that this same fund source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded from the FY 2011
Unreleased Appropriations, most of these are the same projects for which the DBM
is directed by the Office of the President, thru the Executive Secretary, to source
funds.
6.0 Among others, the following are such proposed additional projects that have been
chosen given their multiplier impact on economy and infrastructure development, their
beneficial effect on the poor, and their translation into disbursements. Please note that we
have classified the list of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL

8.0 Foregoing considered, may we respectfully request for the President’s approval for the
following:
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized balances

and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund proposed projects were
contained in various other memoranda from Sec. Abad dated June 25, 2012,117 September 4,
2012,118 December 19, 2012,119 May 20, 2013,120 and September 25, 2013.121 The President apparently
approved all the requests, withholding approval only of the proposed projects contained in the June
25, 2012 memorandum, as borne out by his marginal note therein to the effect that the proposed
projects should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541 (Adoption of
Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the
National Government, Budget and Planning Officers; Heads of Accounting Units and All Others
Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated

Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987),
periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in utilizing
budgeted funds for the delivery of services and production of goods, consistent with the government
priorities.
In the event that a measure is necessary to further improve the operational efficiency of the
government, the President is authorized to suspend or stop further use of funds allotted for any
agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of
unutilized allotment releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In order
to accelerate spending and sustain the fiscal targets during the year, expenditure measures have to
be implemented to optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and

disbursements per initial review of their 2012 performance. To enhance agencies’ performance, the
DBM conducts continuous consultation meetings and/or send call-up letters, requesting them to
identify slow-moving programs/projects and the factors/issues affecting their performance (both
pertaining to internal systems and those which are outside the agencies’ spheres of control). Also,
they are asked to formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low obligation
levels as of end of first semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of
unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for
continuing and current allotments. This measure will allow the maximum utilization of available
allotments to fund and undertake other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated allotments of
agencies as of June 30, 2012 to fund priority and/or fast-moving programs/projects of the
national government;
2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said
unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of June 30,
2012 of all national government agencies (NGAs) charged against FY 2011 Continuing
Appropriation (R.A. No.10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the

implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as

savings by the agencies concerned based on their updated/validated list of
pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified programs, projects and
activities of the departments/agencies reflected in the DBM list shown as Annex A or specific
programs and projects as may be identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy under

the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding allocation
scheme i.e., distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to realignment

conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication, Transportation and Delivery,

Repair and Maintenance, Supplies and Materials and Utility which shall be
used for the grant of Collective Negotiation Agreement incentive benefit;
• Savings from mandatory expenditures which can be realigned only in the

last quarter after taking into consideration the agency’s full year
requirements, i.e., Petroleum, Oil and Lubricants, Water, Illumination, Power
Services, Telephone, other Communication Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International

Commitments Fund, PAMANA, Priority Development Assistance Fund, Calamity
Fund, Budgetary Support to GOCCs and Allocation to LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special
Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake procurement activities

notwithstanding the implementation of the policy of withdrawal of unobligated allotments until
the end of the third quarter, FY 2012. Even without the allotments, the agency shall proceed
in undertaking the procurement processes (i.e., procurement planning up to the conduct of
bidding but short of awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and 01-
2009 and DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments that shall be
withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later
than July 30, 2012, the following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the
agency’s latest report available shall be used by DBM as basis for withdrawal of allotment.
The DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its
unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects
actual obligations of P 800M then the June 30 obligation level shall approximate to ₱1,600 M
(i.e., ₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which remained
unobligated as of June 30, 2012 shall be immediately considered for withdrawal. This policy
is based on the following considerations:
5.4.1 The departments/agencies’ approved priority programs and projects are

assumed to be implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the
agency has a slower-than-programmed implementation capacity or agency tends to
implement projects within a two-year timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based on evaluation of the
reports cited above and results of consultations with the departments/agencies, withdraw the
unobligated allotments as of June 30, 2012 through issuance of negative Special Allotment
Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the magnitude of withdrawn
allotments. The report shall highlight the agencies which failed to submit the June 30 reports
required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects
of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund
priority programs and projects not considered in the 2012 budget but expected to be
started or implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to DBM a Special
Budget Request (SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement processes i.e., Proof
of Posting and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories shall be until the
end of the third quarter i.e., September 30, 2012. After said cut-off date, the withdrawn
allotments shall be pooled and form part of the overall savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority programs and
projects as cited under item 5.7.3 of this Circular, shall be subject to approval of the
President. Based on the approval of the President, DBM shall issue the SARO to cover the
approved priority expenditures subject to submission by the agency/OU concerned of the
SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the withdrawn allotments (both 2011
and 2012 unobligated allotments) shall be within the approved Expenditure Program level of
the national government for the current year. The SAROs to be issued shall properly disclose
the appropriation source of the release to determine the extent of allotment validity, as
follows:
• For charges under R.A. 10147 – allotments shall be valid up to December 31, 2012;
and
• For charges under R.A. 10155 – allotments shall be valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and other reportorial
requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD

Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and
departments as of June 30, 2012 that were charged against the continuing appropriations for fiscal
year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal through the issuance of
negative SAROs, but such allotments could be either: (1) reissued for the original PAPs of the
concerned agencies from which they were withdrawn; or (2) realigned to cover additional funding for
other existing PAPs of the concerned agencies; or (3) used to augment existing PAPs of any agency
and to fund priority PAPs not considered in the 2012 budget but expected to be started or
implemented in 2012. Financing the other priority PAPs was made subject to the approval of the
President. Note here that NBC No. 541 used terminologies like "realignment" and "augmentation" in
the application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that is
— (1) by declaring "savings" coming from the various departments and agencies derived from
pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment existing
PAPs or to support other priority PAPs.
c. DAP was not an appropriation

measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to
establish the DAP, or to authorize the disbursement and release of public funds to implement the
DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the appropriations funded
under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and
COURAGE, the DAP, being actually an appropriation that set aside public funds for public use,
should require an enabling law for its validity. VACC maintains that the DAP, because it involved
huge allocations that were separate and distinct from the GAAs, circumvented and duplicated the
GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the DAP
violated the mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money shall be
paid out of the Treasury except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the
DAP because of its being neither a fund nor an appropriation, but a program or an administrative
system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the economy through
accelerated spending. In the context of the DAP’s adoption and implementation being a function
pertaining to the Executive as the main actor during the Budget Execution Stage under its
constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to
legislate to adopt or to implement the DAP. Congress could appropriate but would have nothing
more to do during the Budget Execution Stage. Indeed, appropriation was the act by which
Congress "designates a particular fund, or sets apart a specified portion of the public revenue or of
the money in the public treasury, to be applied to some general object of governmental expenditure,
or to some individual purchase or expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a strict
sense, appropriation has been defined ‘as nothing more than the legislative authorization prescribed
by the Constitution that money may be paid out of the Treasury,’ while appropriation made by law
refers to ‘the act of the legislature setting apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had
sufficient discretion during the execution of the budget to adapt the budget to changes in the
country’s economic situation.127 He could adopt a plan like the DAP for the purpose. He could pool
the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to
the DAP, and the identification of the PAPs to be funded under the DAP did not involve appropriation
in the strict sense because the money had been already set apart from the public treasury by
Congress through the GAAs. In such actions, the Executive did not usurp the power vested in
Congress under Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the Executive
to ramp up spending to accelerate economic growth, the challenges posed by the petitioners
constrain us to dissect the mechanics of the actual execution of the DAP. The management and
utilization of the public wealth inevitably demands a most careful scrutiny of whether the Executive’s
implementation of the DAP was consistent with the Constitution, the relevant GAAs and other
existing laws.
a. Although executive discretion

and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that
may come into play once the budget reaches its execution stage. Executive discretion is necessary
at that stage to achieve a sound fiscal administration and assure effective budget implementation.
The heads of offices, particularly the President, require flexibility in their operations under
performance budgeting to enable them to make whatever adjustments are needed to meet
established work goals under changing conditions.128 In particular, the power to transfer funds can
give the President the flexibility to meet unforeseen events that may otherwise impede the efficient
implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the
GAAs,129particularly when the funds are grouped to form lump sum accounts.130 It is assumed that the
agencies of the Government enjoy more flexibility when the GAAs provide broader appropriation
items.131 This flexibility comes in the form of policies that the Executive may adopt during the budget
execution phase. The DAP – as a strategy to improve the country’s economic position – was one
policy that the President decided to carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In

Presidential Spending Power,132 Prof. Louis Fisher, an American constitutional scholar whose
specialties have included budget policy, has justified extending discretionary authority to the
Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted. There are many number
of reasons why obligations and outlays by administrators may have to differ from appropriations by
legislators. Appropriations are made many months, and sometimes years, in advance of
expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly
technical and constantly undergoing change. New circumstances will develop to make obsolete and
mistaken the decisions reached by Congress at the appropriation stage. It is not practicable for
Congress to adjust to each new development by passing separate supplemental appropriation bills.
Were Congress to control expenditures by confining administrators to narrow statutory details, it
would perhaps protect its power of the purse but it would not protect the purse itself. The realities
and complexities of public policy require executive discretion for the sound management of public
funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion for administrators.
They need to exercise judgment and take responsibility for their actions, but those actions ought to
be directed toward executing congressional, not administrative policy. Let there be discretion, but
channel it and use it to satisfy the programs and priorities established by Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their respective
offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the same time
maintains the separation of powers among the three main branches of the Government. The Court
has recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the
Executive has not been the mere offshoot of established usage, but has emanated from law itself. It
has existed since the time of the American Governors-General.134 Act No. 1902 (An Act authorizing
the Governor-General to direct any unexpended balances of appropriations be returned to the
general fund of the Insular Treasury and to transfer from the general fund moneys which have been
returned thereto), passed on May 18, 1909 by the First Philippine Legislature,135 was the first
enabling law that granted statutory authority to the President to transfer funds. The authority was
without any limitation, for the Act explicitly empowered the Governor-General to transfer any
unexpended balance of appropriations for any bureau or office to another, and to spend such
balance as if it had originally been appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be
transferred, thereby limiting the power to transfer funds. Only 10% of the amounts appropriated for
contingent or miscellaneous expenses could be transferred to a bureau or office, and the transferred
funds were to be used to cover deficiencies in the appropriations also for miscellaneous expenses of
said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous
expenses to any other item of a certain bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be
governed by the GAAs despite the enactment of the Constitution in 1935. It is notable that the 1935
Constitution did not include a provision on the power to transfer funds. At any rate, a shift in the
extent of the 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 that the power
to transfer all or portions of the appropriations in the Executive Department could be made in the
"interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s seemingly
unbounded discretion in transferring funds.137 Its Committee on the Budget and Appropriation
proposed to prohibit the transfer of funds among the separate branches of the Government and the
independent constitutional bodies, but to allow instead their respective heads to augment items of
appropriations from savings in their respective budgets under certain limitations.138 The clear intention
of the Convention was to further restrict, not to liberalize, the power to transfer
appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered setting
stringent limitations on the power to augment, and suggested that the augmentation of an item of
appropriation could be made "by not more than ten percent if the original item of appropriation to be
augmented does not exceed one million pesos, or by not more than five percent if the original item of
appropriation to be augmented exceeds one million pesos."140 But two members of the Committee
objected to the ₱1,000,000.00 threshold, saying that the amount was arbitrary and might not be
reasonable in the future. The Committee agreed to eliminate the ₱1,000,000.00 threshold, and
settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which
adopted the following final version under Section 16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions may by law be authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to
another, unless Congress enacted a law authorizing the President, the Prime Minister, the Speaker,
the Chief Justice of the Supreme Court, and the heads of the Constitutional omissions to transfer
funds for the purpose of augmenting any item from savings in another item in the GAA of their
respective offices. The leeway was limited to augmentation only, and was further constricted by the
condition that the funds to be transferred should come from savings from another item in the
appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the authority to transfer
any fund appropriated for the different departments, bureaus, offices and agencies of the Executive
Department which are included in the General Appropriations Act, to any program, project, or activity
of any department, bureau or office included in the General Appropriations Act or approved after its
enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive
Department in the General Appropriations Act, from savings in the appropriations of another
department, bureau, office or agency within the Executive Branch, pursuant to the provisions of
Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for
contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said
Section 16. It empowers the President to indiscriminately transfer funds from one department,
bureau, office or agency of the Executive Department to any program, project or activity of any
department, bureau or office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are actually savings in the
item from which the same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only completely disregard the
standards set in the fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the
provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the
1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the
1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in other
xxxx
The foregoing history makes it evident that the Constitutional Commission included Section 25(5),
supra, to keep a tight rein on the exercise of the power to transfer funds appropriated by Congress
by the President and the other high officials of the Government named therein. The Court stated in
Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that the
budgetary amount contained in the appropriations bill is the extent Congress will determine as
sufficient for the budgetary allocation for the proponent agency. The only exception is found in
Section 25 (5), Article VI of the Constitution, by which the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions are authorized to transfer appropriations to augmentany item in the
GAA for their respective offices from the savings in other items of their respective appropriations.
The plain language of the constitutional restriction leaves no room for the petitioner’s posture, which
we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article
VI of the Constitution limiting the authority to transfer savings only to augment another item in the
GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v.
Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the
exceptions are strictly but reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in favor of the general provision rather
than the exceptions. Where the general rule is established by a statute with exceptions, none but the
enacting authority can curtail the former. Not even the courts may add to the latter by implication,
and it is a rule that an express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular case, it accords with reason
and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the
general words of a statute, which is otherwise within the scope and meaning of such general words.
Consequently, the existence of an exception in a statute clarifies the intent that the statute shall
apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any
doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal
construction of a statute will seem to require in many circumstances that the exception, by which the
operation of the statute is limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the President’s
discretion over the appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of

appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a
concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their
respective offices; and (3) The purpose of the transfer is to augment an item in the general
appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and

2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an
implementing law for it to be operative. That law, generally, is the GAA of a given fiscal year. To
comply with the first requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority to
transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any
item in this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any
item in this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification
for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were
textually unfaithful to the Constitution for not carrying the phrase "for their respective offices"
contained in Section 25(5), supra. The impact of the phrase "for their respective offices" was to
authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer
was to an item of appropriation within the Executive). The provisions carried a different phrase ("to
augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally
allowed the transfer of funds from savings to augment any item in the GAAs even if the item
belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene
the Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to
transfer appropriations from the Executive to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision
in the 2013 GAA, to wit:
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings
in their respective appropriations to augment actual deficiencies incurred for the current year in any
item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed,
there still remained two other requisites to be met, namely: that the source of funds to be transferred
were savings from appropriations within the respective offices; and that the transfer must be for the
purpose of augmenting an item of appropriation within the respective offices.
b.2. Second Requisite – There were

no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and
withdrawn unobligated allotments — were not actual savings within the context of Section 25(5),
supra, and the relevant provisions of the GAAs. Belgica argues that "savings" should be understood
to refer to the excess money after the items that needed to be funded have been funded, or those
that needed to be paid have been paid pursuant to the budget.146 The petitioners posit that there
could be savings only when the PAPs for which the funds had been appropriated were actually
implemented and completed, or finally discontinued or abandoned. They insist that savings could not
be realized with certainty in the middle of the fiscal year; and that the funds for "slow-moving" PAPs
could not be considered as savings because such PAPs had not actually been abandoned or
discontinued yet.147 They stress that NBC No. 541, by allowing the withdrawn funds to be reissued to
the "original program or project from which it was withdrawn," conceded that the PAPs from which
the supposed savings were taken had not been completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference between
the appropriation authorized by Congress and the actual amount allotted for the appropriation; that
the definition of "savings" in the GAAs set only the parameters for determining when savings
occurred; that it was still the President (as well as the other officers vested by the Constitution with
the authority to augment) who ultimately determined when savings actually existed because savings
could be determined only during the stage of budget execution; that the President must be given a
wide discretion to accomplish his tasks; and that the withdrawn unobligated allotments were savings
inasmuch as they were clearly "portions or balances of any programmed appropriation…free from
any obligation or encumbrances which are (i) still available after the completion or final
discontinuance or abandonment of the work, activity or purpose for which the appropriation is
authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle
is that Congress wields the power of the purse. Congress decides how the budget will be spent;
what PAPs to fund; and the amounts of money to be spent for each PAP. The second principle is
that the Executive, as the department of the Government tasked to enforce the laws, is expected to
faithfully execute the GAA and to spend the budget in accordance with the provisions of the
GAA.149 The Executive is expected to faithfully implement the PAPs for which Congress allocated
funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for
which augmentation is authorized, subject to the conditions provided by law. The third principle is
that in making the President’s power to augment operative under the GAA, Congress recognizes the
need for flexibility in budget execution. In so doing, Congress diminishes its own power of the purse,
for it delegates a fraction of its power to the Executive. But Congress does not thereby allow the
Executive to override its authority over the purse as to let the Executive exceed its delegated
authority. And the fourth principle is that savings should be actual. "Actual" denotes something that is
real or substantial, or something that exists presently in fact, as opposed to something that is merely
theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of the
power to augment. It is then indubitable that the power to augment was to be used only when the
purpose for which the funds had been allocated were already satisfied, or the need for such funds
had ceased to exist, for only then could savings be properly realized. This interpretation prevents the
Executive from unduly transgressing Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this
interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any
obligation or encumbrance which are: (i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from
appropriations balances arising from unpaid compensation and related costs pertaining to vacant
positions and leaves of absence without pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies and thus enabled
agencies to meet and deliver the required or planned targets, programs and services approved in
this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings
could be generated only upon the purpose of the appropriation being fulfilled, or upon the need for
the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs
conveyed the notion that the appropriation was at that stage when the appropriation was already
obligated and the appropriation was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that the appropriation referred
to had reached the agency level. It could not be otherwise, considering that only when the
appropriation had reached the agency level could it be determined whether (a) the PAP for which the
appropriation had been authorized was completed, finally discontinued, or abandoned; or (b) there
were vacant positions and leaves of absence without pay; or (c) the required or planned targets,
programs and services were realized at a lesser cost because of the implementation of measures
resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased
appropriations such as unreleased Personnel Services appropriations which will lapse at the end of
the year, unreleased appropriations of slow moving projects and discontinued projects per Zero-
Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of
unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the status
of the items as unalloted or unreleased. They have not yet ripened into categories of items from
which savings can be generated. Appropriations have been considered "released" if there has
already been an allotment or authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not needing clearance), or a SARO (for
those needing clearance), and consequently an NCA, NCAA or CDC, as the case may be.
Appropriations remain unreleased, for instance, because of noncompliance with documentary
requirements (like the Special Budget Request), or simply because of the unavailability of funds. But
the appropriations do not actually reach the agencies to which they were allocated under the GAAs,
and have remained with the DBM technically speaking. Ergo, unreleased appropriations refer to
appropriations with allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the statutory definition of
savings, would seriously undercut the congressional power of the purse, because such
appropriations had not even reached and been used by the agency concerned vis-à-vis the PAPs for
which Congress had allocated them. However, if an agency has unfilled positions in its plantilla and
did not receive an allotment and NCA for such vacancies, appropriations for such positions, although
unreleased, may already constitute savings for that agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of
"savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act
free from any obligation or encumbrance." But the first part of the definition was further qualified by
the three enumerated instances of when savings would be realized. As such, unobligated allotments
could not be indiscriminately declared as savings without first determining whether any of the three
instances existed. This signified that the DBM’s withdrawal of unobligated allotments had
disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE appropriations
are deemed divided into twelve monthly allocations within the fiscal year; hence, savings could be
generated monthly from the excess or unused MOOE appropriations other than the Mandatory
Expenditures and Expenditures for Business-type Activities because of the physical impossibility to
obligate and spend such funds as MOOE for a period that already lapsed. Following this
observation, MOOE for future months are not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of NBC
No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies’
operations, particularly on the implementation of their projects/activities, including expenses
incurred in undertaking the same, have been continuously calling the attention of all National
Government agencies (NGAs) with low levels of obligations as of end of the first quarter to
speedup the implementation of their programs and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned
agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the department’s disposal, the
level of financial performance of some departments registered below program, with the
targeted obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as of
June 30, 2012, both for continuing and current allotments shall be withdrawn and pooled to
fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of
slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based
on whether the allotments pertained to slow-moving projects, or not. However, NBC No. 541 did not
set in clear terms the criteria for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30,
2012 ofall national government agencies (NGAs) charged against FY 2011 Continuing
Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the

implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as

savings by the agencies concerned based on their undated/validated list of
pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of unobligated
allotments of agencies with low levels of obligations"151 "to fund priority and/or fast-moving
programs/projects."152 But the fact that the withdrawn allotments could be "[r]eissued for the original
programs and projects of the agencies/OUs concerned, from which the allotments were
withdrawn"153 supported the conclusion that the PAPs had not yet been finally discontinued or
abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not yet
fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged
against the 2011 GAA that had remained unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects are assumed to be
implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency
has a slower-than-programmed implementation capacity or agency tends to implement
projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for
continuing and current appropriations as of June 30, 2012, disregarded the 2-year period of
availability of the appropriations for MOOE and capital outlay extended under Section 65, General
Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized
in this Act shall be available for release and obligation for the purpose specified, and under the same
special provisions applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That appropriations for MOOE and capital
outlays under R.A. No. 9970 shall be made available up to the end of FY 2011: PROVIDED,
FURTHER, That a report on these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized
in this Act shall be available for release and obligation for the purpose specified, and under the same
special provisions applicable thereto, for a period extending to one fiscal year after the end of the
year in which such items were appropriated: PROVIDED, That a report on these releases and
obligations shall be submitted to the Senate Committee on Finance and the House Committee on
Appropriations, either in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances
shortened the period of availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the 2013
GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in this Act shall be
available for release and obligation for the purposes specified, and under the same special
provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on these releases
and obligations shall be submitted to the Senate Committee on Finance and House Committee on
Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority
to consolidate savings and unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register below program,
even with the availability of funds at their disposal, the targeted obligations/disbursements for
each quarter will not be met. It is important to note that these funds will lapse at the end of
the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end of
every quarter, both for continuing and current allotments shall be withdrawn and pooled to
fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of
slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year, was
further shortened to only a quarter of a year under the DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a larger
fund available for discretionary spending. They aver that the respondents, by withdrawing
unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with
existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being
withdrawn upon the instance of the implementing agencies based on their own assessment that they
could not obligate those allotments pursuant to the President’s directive for them to spend their
appropriations as quickly as they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM itself.
The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the
following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s
latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM shall
compute/approximate the agency’s obligation level as of June 30 to derive its unobligated allotments
as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P 800M
then the June 30 obligation level shall approximate to ₱1,600 M (i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of
unobligated allotments and the retention of appropriated funds were akin to the impoundment of
appropriations that could be allowed only in case of "unmanageable national government budget
deficit" under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013
prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as
a last-ditch effort of the Executive to push agencies into actually spending their appropriations; that
such policy did not amount to an impoundment scheme, because impoundment referred to the
decision of the Executive to refuse to spend funds for political or ideological reasons; and that the
withdrawal of allotments under NBC No. 541 was made pursuant to Section 38, Chapter 5, Book VI
of the Administrative Code, by which the President was granted the authority to suspend or
otherwise stop further expenditure of funds allotted to any agency whenever in his judgment the
public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments
and the pooling of unreleased appropriations were invalid for being bereft of legal support.
Nonetheless, such withdrawal of unobligated allotments and the retention of appropriated funds
cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a refusal by

the President, for whatever reason, to spend funds made available by Congress. It is the failure to
spend or obligate budget authority of any type." Impoundment under the GAA is understood to mean
the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of
unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under

this Act shall be impounded through retention or deduction, unless in accordance with the rules and
regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for the purposes,
programs, projects and activities authorized under this Act, except those covered under the
Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No.
292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of

appropriations authorized in this Act shall be effected only in cases where there is an unmanageable
national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to
mean that (i) the actual national government budget deficit has exceeded the quarterly budget deficit
targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress
pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic indications of
an impending occurrence of such condition, as determined by the Development Budget Coordinating
Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment
because it entailed only the transfer of funds, not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs) be
applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from appropriations
provided in this Act shall be transmitted intact or in full to the office or agency concerned. No
retention or deduction as reserves or overhead shall be made, except as authorized by law, or upon
direction of the President of the Philippines. The COA shall ensure compliance with this provision to
the extent that sub-allotments by agencies to their subordinate offices are in conformity with the
release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release from
the DBM, which was a different matter altogether. The Court should not expand the meaning of the
provision by applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify
the withdrawal of unobligated allotments. But the provision authorized only the suspension or
stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the

General Appropriations Act and whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used for permanent officials
and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38,
supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained unexpended
at the end of the fiscal year were to be reverted to the General Fund. This was the mandate of
1âwphi1
Section 28, Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.-

Unexpended balances of appropriations authorized in the General Appropriation Act shall revert to
the unappropriated surplus of the General Fund at the end of the fiscal year and shall not thereafter
be available for expenditure except by subsequent legislative enactment: Provided, that
appropriations for capital outlays shall remain valid until fully spent or reverted: provided, further, that
continuing appropriations for current operating expenditures may be specifically recommended and
approved as such in support of projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President may authorize the use of savings
realized by an agency during given year to meet non-recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget
preparation process and the preparation process and the President may approve upon
recommendation of the Secretary, the reversion of funds no longer needed in connection with the
activities funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased appropriations and
unobligated allotments as savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds from

savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to
augment an item in the general appropriations law for the respective offices." The term "augment"
means to enlarge or increase in size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the
PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or project with an
appropriation, which upon implementation, or subsequent evaluation of needed resources, is
determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by
augmentation from savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it could
be augmented from savings. Note is taken of the fact that the 2013 GAA already made this quite
clear, thus:
Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings
in their respective appropriations to augment actual deficiencies incurred for the current year in any
item of their respective appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in 2012.162 Sec. Abad has
reported that 9% of the total DAP releases were applied to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the following PAPs that had
not been covered with appropriations in the respective GAAs, namely:
(i) ₱1.5 billion for the Cordillera People’s Liberation Army;
(ii) ₱1.8 billion for the Moro National Liberation Front;
(iii) ₱700 million for assistance to Quezon Province;164
(iv) ₱50 million to ₱100 (million) each to certain senators;165
(v) ₱10 billion for the relocation of families living along dangerous zones under the National
Housing Authority;
(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko Sentral;
(vii) ₱5.4 billion landowners’ compensation under the Department of Agrarian Reform;
(viii) ₱8.6 billion for the ARMM comprehensive peace and development program;
(ix) ₱6.5 billion augmentation of LGU internal revenue allotments
(x) ₱5 billion for crucial projects like tourism road construction under the Department of
Tourism and the Department of Public Works and Highways;
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional health units; and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure projects.166

In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had
appropriation covers, and could properly be accounted for because the funds were released
following and pursuant to the standard practices adopted by the DBM.167 In support of its argument,
the OSG has submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence packets, we conclude that
the "savings" pooled under the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk,
Exposure, Assessment and Mitigation (DREAM) project under the Department of Science and
Technology (DOST) covered the amount of ₱1.6 Billion,169 broken down as follows:
APPROPRIATION PARTICULARS AMOUNT

CODE AUTHORIZED
A.03.a.01.a Generation of new knowledge and technologies

and research capability building in priority areas
identified as strategic to National Development
Personnel Services
Maintenance and Other Operating Expenses P 43,504,024
Capital Outlays 1,164,517,589
391,978,387
P 1,600,000,000
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated
only ₱537,910,000 for MOOE, but nothing for personnel services and capital outlays, to wit:
Personnel Maintenance Capital TOTAL

Services and Other Outlays
Operating
Expenditures
III. Operations
a. Funding Assistance to Science 177,406,000 1,887,365,000 49,090,000 2,113,861,000

and Technology Activities
1. Central Office 1,554,238,000 1,554,238,000
a. Generation of new
knowledge and 537,910,000 537,910,000
technologies and research
capability building in
priority areas identified as
strategic to National
Development
Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the
appropriation by Congress for the program Generation of new knowledge and technologies and
research capability building in priority areas identified as strategic to National Development, the
Executive allotted funds for personnel services and capital outlays. The Executive thereby
substituted its will to that of Congress. Worse, the Executive had not earlier proposed any amount
for personnel services and capital outlays in the NEP that became the basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an
expense category sufficiently indicated that Congress purposely did not see fit to fund, much less
implement, the PAP concerned. This indication becomes clearer when even the President himself
did not recommend in the NEP to fund the PAP. The consequence was that any PAP requiring
expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any
funding for which would go beyond the authority laid down by Congress in enacting the GAAs. That
happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and
Emerging Technology Research and Development (DOST-PCIEETRD)171 for Establishment of the
Advanced Failure Analysis Laboratory, which reads:
APPROPRIATION PARTICULARS AMOUNT

CODE AUTHORIZED
Development, integration and coordination of the

A.02.a National Research System for Industry, Energy and
Emerging Technology and Related Fields P 300,000,000
Capital Outlays
the appropriation code and the particulars appearing in the SARO did not correspond to the program
specified in the GAA, whose particulars were Research and Management Services(inclusive of the
following activities: (1) Technological and Economic Assessment for Industry, Energy and Utilities;
(2) Dissemination of Science and Technology Information; and (3) Management of PCIERD
Information System for Industry, Energy and Utilities. Even assuming that Development, integration
and coordination of the National Research System for Industry, Energy and Emerging Technology
and Related Fields– the particulars stated in the SARO – could fall under the broad program
description of Research and Management Services– as appearing in the SARO, it would
nonetheless remain a new activity by reason of its not being specifically stated in the GAA. As such,
the DBM, sans legislative authorization, could not validly fund and implement such PAP under the
DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound
discretion in implementing the budget given the generality in the language and the broad policy
objectives identified under the GAAs;172 and that the President enjoyed unlimited authority to spend
the initial appropriations under his authority to declare and utilize savings,173 and in keeping with his
duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its
mandate to faithfully execute the laws (which included the GAAs), such authority did not translate to
unfettered discretion that allowed the President to substitute his own will for that of Congress. He
was still required to remain faithful to the provisions of the GAAs, given that his power to spend
pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the
public wealth resided in Congress, not in the Executive.174 Moreover, leaving the spending power of
the Executive unrestricted would threaten to undo the principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse
whenever it deliberates and acts on the budget proposal submitted by the Executive.176 Its power of
the purse is touted as the very foundation of its institutional strength,177 and underpins "all other
legislative decisions and regulating the balance of influence between the legislative and executive
branches of government."178 Such enormous power encompasses the capacity to generate money for
the Government, to appropriate public funds, and to spend the money.179 Pertinently, when it
exercises its power of the purse, Congress wields control by specifying the PAPs for which public
money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of
appropriations.180For this purpose, appropriation involves two governing principles, namely: (1) "a
Principle of the Public Fisc, asserting that all monies received from whatever source by any part of
the government are public funds;" and (2) "a Principle of Appropriations Control, prohibiting
expenditure of any public money without legislative authorization."181To conform with the governing
principles, the Executive cannot circumvent the prohibition by Congress of an expenditure for a PAP
by resorting to either public or private funds.182 Nor could the Executive transfer appropriated funds
resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP
is necessarily decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite – Cross-border

augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the GAA "for their respective offices,"
Section 25(5), supra, has delineated borders between their offices, such that funds appropriated for
one office are prohibited from crossing over to another office even in the guise of augmentation of a
deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border
augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief
Justice; the Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border
augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management, did
the Executive Department ever redirect any part of savings of the National Government under your
control cross border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started
building their e-library in 2010 and they had a budget for about 207 Million but they lack about 43
Million to complete its 250 Million requirements. Prior to that, the COA, in an audit observation
informed the Speaker that they had to continue with that construction otherwise the whole building,
as well as the equipments therein may suffer from serious deterioration. And at that time, since the
budget of the House of Representatives was not enough to complete 250 Million, they wrote to the
President requesting for an augmentation of that particular item, which was granted, Your Honor.
The second instance in the Memos is a request from the Commission on Audit. At the time they
were pushing very strongly the good governance programs of the government and therefore, part of
that is a requirement to conduct audits as well as review financial reports of many agencies. And in
the performance of that function, the Commission on Audit needed information technology
equipment as well as hire consultants and litigators to help them with their audit work and for that
they requested funds from the Executive and the President saw that it was important for the
Commission to be provided with those IT equipments and litigators and consultants and the request
was granted, Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and the tenor or text of the
Constitution is quite clear as far as I am concerned. It says here, "The power to augment may only
be made to increase any item in the General Appropriations Law for their respective offices." Did you
not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your
Honor. What we thought we did was to transfer savings which was needed by the Commission to
address deficiency in an existing item in both the Commission as well as in the House of
Representatives; that’s how we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission and the House of
Representatives, we felt that we needed to respond because we felt…(interrupted).183
The records show, indeed, that funds amounting to ₱143,700,000.00 and ₱250,000,000.00 were
transferred under the DAP respectively to the COA184 and the House of Representatives.185 Those
transfers of funds, which constituted cross-border augmentations for being from the Executive to the
COA and the House of Representatives, are graphed as follows:186
AMOUNT
(In thousand pesos)
DATE
OFFICE PURPOSE
RELEASED
Reserve Releases
Imposed
Commission on IT Infrastructure Program and 11/11/11 143,700

Audit hiring of additional litigation
experts
Congress – Completion of the construction of 07/23/12 207,034 250,000

House of the Legislative Library and (Savings of HOR)
Representatives Archives Building/Congressional
e-library
The respondents further stated in their memorandum that the President "made available" to the
"Commission on Elections the savings of his department upon [its] request for funds…"187 This was
another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department to
another department upon the latter’s request, provided it is the recipient department that uses such
funds to augment its own appropriation. In such a case, the President merely gives the other
department access to public funds but he cannot dictate how they shall be applied by that
department whose fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing
Congress, announced a different characterization of the cross-border transfers of funds as in the
nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were these
cross-border transfers? They are transfers of savings as defined in the various General
Appropriations Act. So, that makes it similar to the DAP, the use of savings. There was a cross-
border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that the
border was crossed. But never has it been claimed that the purpose was to augment a deficient item
in another department of the government or agency of the government. The cross-border transfers, if
Your Honors please, were in the nature of [aid] rather than augmentations. Here is a government
entity separate and independent from the Executive Department solely in need of public funds. The
President is there 24 hours a day, 7 days a week. He’s in charge of the whole operation although six
or seven heads of government offices are given the power to augment. Only the President stationed
there and in effect in-charge and has the responsibility for the failure of any part of the government.
You have election, for one reason or another, the money is not enough to hold election. There would
be chaos if no money is given as an aid, not to augment, but as an aid to a department like COA.
The President is responsible in a way that the other heads, given the power to augment, are not. So,
he cannot very well allow this, if Your Honor please.189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that the position now, I think, of
government is that some transfers of savings is now considered to be, if I’m not mistaken, aid not
augmentation. Am I correct in my hearing of your argument?
HONORABLE MENDOZA:
That’s our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution? Where do we actually
derive the concepts that transfers of appropriation from one branch to the other or what happened in
DAP can be considered a said? What particular text in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your Honor please. It is drawn
from the fact that the Executive is the executive in-charge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the
government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there are
opportunities and there have been opportunities of the President to actually go to Congress and ask
for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of
Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-border transfers,
whether as augmentation, or as aid, were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for
2011, 2012,and 2013. The respondents stress, however, that the unprogrammed funds were not
brought under the DAP as savings, but as separate sources of funds; and that, consequently, the
release and use of unprogrammed funds were not subject to the restrictions under Section 25(5),
supra.
The documents contained in the Evidence Packets by the OSG have confirmed that the
unprogrammed funds were treated as separate sources of funds. Even so, the release and use of
the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs precisely
specified the instances when the unprogrammed funds could be released and the purposes for
which they could be used.
The petitioners point out that a condition for the release of the unprogrammed funds was that the
revenue collections must exceed revenue targets; and that the release of the unprogrammed funds
was illegal because such condition was not met.191
The respondents disagree, holding that the release and use of the unprogrammed funds under the
DAP were in accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that
the unprogrammed funds could be availed of when any of the following three instances occur, to wit:
(1) the revenue collections exceeded the original revenue targets proposed in the BESFs submitted
by the President to Congress; (2) new revenues were collected or realized from sources not
originally considered in the BESFs; or(3) newly-approved loans for foreign assisted projects were
secured, or when conditions were triggered for other sources of funds, such as perfected loan
agreements for foreign-assisted projects.192 This view of the DBM was adopted by all the respondents
in their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as
appropriations that provided standby authority to incur additional agency obligations for priority PAPs
when revenue collections exceeded targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were three instances when unprogrammed
funds could be released, the BESFs envisioned only two instances. The third mentioned by the DBM
– the collection of new revenues from sources not originally considered in the BESFs – was not
included. This meant that the collection of additional revenues from new sources did not warrant the
release of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were
collected or generated, the basic condition that the revenue collections should exceed the revenue
targets must still be complied with in order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds could be released was
bolstered by the following texts of the Special Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when the revenue
collections exceed the original revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution, including savings generated from
programmed appropriations for the year: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used to cover releases from
appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for
foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be
sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED,
FURTHERMORE, That if there are savings generated from the programmed appropriations for the
first two quarters of the year, the DBM may, subject to the approval of the President, release the
pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent (50%) of
the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of
the total savings from programmed appropriations for the year shall be subject to fiscal programming
and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue
Congress pursuant to Section 22, Article VII of the Constitution: PROVIDED, That collections arising
from sources not considered in the aforesaid original revenue targets may be used to cover releases
from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for
foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be
sufficient basis for the issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections arising from sources
not considered in the aforesaid original revenue targets may be used to cover releases from
appropriations in this Fund" gave the authority to use such additional revenues for appropriations
funded from the unprogrammed funds. They did not at all waive compliance with the basic
requirement that revenue collections must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues generated from newly-
approved foreign loans were clear to the effect that the perfected loan agreement would be in itself
"sufficient basis" for the issuance of a SARO to release the funds but only to the extent of the
amount of the loan. In such instance, the revenue collections need not exceed the revenue targets to
warrant the release of the loan proceeds, and the mere perfection of the loan agreement would
suffice.
It can be inferred from the foregoing that under these provisions of the GAAs the additional revenues
from sources not considered in the BESFs must be taken into account in determining if the revenue
collections exceeded the revenue targets. The text of the relevant provision of the 2013 GAA, which
was substantially similar to those of the GAAs for 2011 and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue
Congress pursuant to Section 22, Article VII of the Constitution, including collections arising from
sources not considered in the aforesaid original revenue target, as certified by the BTr: PROVIDED,
That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan
agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan
proceeds.
Consequently, that there were additional revenues from sources not considered in the revenue
target would not be enough. The total revenue collections must still exceed the original revenue
targets to justify the release of the unprogrammed funds (other than those from newly-approved
foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation of the
phrase "revenue collections should exceed the original revenue targets." The petitioners take the
phrase to mean that the total revenue collections must exceed the total revenue target stated in the
BESF, but the respondents understand the phrase to refer only to the collections for each source of
revenue as enumerated in the BESF, with the condition being deemed complied with once the
revenue collections from a particular source already exceeded the stated target.
The BESF provided for the following sources of revenue, with the corresponding revenue target
stated for each source of revenue, to wit:
TAX REVENUES
Taxes on Net Income and Profits

Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT

Selected Excises on Goods
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform Activities
Other Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees and Charges

BTR Income
Government Services
Interest on NG Deposits
Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from the Bureau of Treasury
(BTr) to the effect that the revenue collections had exceeded the original revenue targets,195 they
complied by submitting certifications from the BTr and Department of Finance (DOF) pertaining to
only one identified source of revenue – the dividends from the shares of stock held by the
Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented the certification
dated March 4, 2011 issued by DOF Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the
programmed income from dividends from shares of stock in government-owned and controlled
corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury, the National
Government has recorded dividend income amounting to ₱23.8 billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer
Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to March 2012 amounted to ₱19.419 billion compared to the full year program of
₱5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National
Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to May 2013 amounted to ₱12.438 billion compared to the full year program of
₱10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the NAIA
expressway amounting to ₱11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to ₱23.8 billion in 2011, ₱19.419
billion in 2012, and ₱12.438 billion in 2013 the BTr had exceeded only the ₱5.5 billion in target
revenues in the form of dividends from stocks in each of 2011 and 2012, and only the ₱10 billion in
target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue targets was to be
construed in light of the purpose for which the unprogrammed funds were incorporated in the GAAs
as standby appropriations to support additional expenditures for certain priority PAPs should the
revenue collections exceed the resource targets assumed in the budget or when additional foreign
project loan proceeds were realized. The unprogrammed funds were included in the GAAs to
provide ready cover so as not to delay the implementation of the PAPs should new or additional
revenue sources be realized during the year.200 Given the tenor of the certifications, the
unprogrammed funds were thus not yet supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of the
proposed programmed appropriations. In contrast, the unprogrammed funds, as standby
appropriations, were to be released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. The
requirement that revenue collections must exceed revenue target should be understood to mean that
the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover,
to release the unprogrammed funds simply because there was an excess revenue as to one source
of revenue would be an unsound fiscal management measure because it would disregard the budget
plan and foster budget deficits, in contravention of the Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks and
balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna argues
that the implementation of the DAP was "unfair as it [was] selective" because the funds released
under the DAP was not made available to all the legislators, with some of them refusing to avail
themselves of the DAP funds, and others being unaware of the availability of such funds. Thus, the
DAP practised "undue favoritism" in favor of select legislators in contravention of the Equal
Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no
reasonable classification was used in distributing the funds under the DAP; and that the Senators
who supposedly availed themselves of said funds were differently treated as to the amounts they
respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks and balances, Luna submits
that the grant of the funds under the DAP to some legislators forced their silence about the issues
and anomalies surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by allowing the
legislators to identify PAPs, authorized them to take part in the implementation and execution of the
GAAs, a function that exclusively belonged to the Executive; that such situation constituted undue
and unjustified legislative encroachment in the functions of the Executive; and that the President
arrogated unto himself the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability
enshrined in the Constitution,204 because the legislators relinquished the power of appropriation to the
Executive, and exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds
under the DAP could be raised only by the affected Members of Congress themselves, and if the
challenge based on the violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be directed to the entitlement of
the legislators to the funds, not to the proposition that all of the legislators should have been given
such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the
release of funds under the DAP to legislators, lacks factual and legal basis. The allegations about
Senators and Congressmen being unaware of the existence and implementation of the DAP, and
about some of them having refused to accept such funds were unsupported with relevant data. Also,
the claim that the Executive discriminated against some legislators on the ground alone of their
receiving less than the others could not of itself warrant a finding of contravention of the Equal
Protection Clause. The denial of equal protection of any law should be an issue to be raised only by
parties who supposedly suffer it, and, in these cases, such parties would be the few legislators
claimed to have been discriminated against in the releases of funds under the DAP. The reason for
the requirement is that only such affected legislators could properly and fully bring to the fore when
and how the denial of equal protection occurred, and explain why there was a denial in their
situation. The requirement was not met here. Consequently, the Court was not put in the position to
determine if there was a denial of equal protection. To have the Court do so despite the inadequacy
of the showing of factual and legal support would be to compel it to speculate, and the outcome
would not do justice to those for whose supposed benefit the claim of denial of equal protection has
been made.
The argument that the release of funds under the DAP effectively stayed the hands of the legislators
from conducting congressional inquiries into the legality and propriety of the DAP is speculative.
That deficiency eliminated any need to consider and resolve the argument, for it is fundamental that
speculation would not support any proper judicial determination of an issue simply because nothing
concrete can thereby be gained. In order to sustain their constitutional challenges against official
acts of the Government, the petitioners must discharge the basic burden of proving that the
constitutional infirmities actually existed.205 Simply put, guesswork and speculation cannot overcome
the presumption of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation through the various
circulars and memoranda of the DBM transgressed the system of checks and balances in place in
our constitutional system. Our earlier expositions on the DAP and its implementing issuances
infringing the doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the adoption and
implementation of the DAP constituted an assumption by the Executive of Congress’ power of
appropriation, we have already held that the DAP and its implementing issuances were policies and
acts that the Executive could properly adopt and do in the execution of the GAAs to the extent that
they sought to implement strategies to ramp up or accelerate the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal
with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to any
right or obligation.206 However, the generality of the rule makes us ponder whether rigidly applying the
rule may at times be impracticable or wasteful. Should we not recognize the need to except from the
rigid application of the rule the instances in which the void law or executive act produced an almost
irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one, has
been exhaustively explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an
executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source
of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and purposes a mere scrap
of paper. As the new Civil Code puts it: ‘When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.’ Administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws of the Constitution.
It is understandable why it should be so, the Constitution being supreme and paramount. Any
legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions. What could be more
fitting than that in a subsequent litigation regard be had to what has been done while such legislative
or executive act was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive measure is valid, a period of time may have
elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be no recognition of
what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior to
such a determination [of unconstitutionality], is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect
of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect
to particular relations, individual and corporate, and particular conduct, private and official.’"
The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that cannot
always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but
sustains its effects. It provides an exception to the general rule that a void or unconstitutional law
produces no effect.208 But its use must be subjected to great scrutiny and circumspection, and it
cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a
matter of equity and fair play.209 It applies only to cases where extraordinary circumstances exist, and
only when the extraordinary circumstances have met the stringent conditions that will permit its
application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its
application to the DAP proceeds from equity and fair play. The consequences resulting from the
DAP and its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The
term executive act is broad enough to include any and all acts of the Executive, including those that
are quasi legislative and quasi-judicial in nature. The Court held so in Hacienda Luisita, Inc. v.
Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact doctrine
should be limited to statutes and rules and regulations issued by the executive department that are
accorded the same status as that of a statute or those which are quasi-legislative in nature. Thus,
the minority concludes that the phrase ‘executive act’ used in the case of De Agbayani v. Philippine
National Bank refers only to acts, orders, and rules and regulations that have the force and effect of
law. The minority also made mention of the Concurring Opinion of Justice Enrique Fernando in
Municipality of Malabang v. Benito, where it was supposedly made explicit that the operative fact
doctrine applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case
elaborates what ‘executive act’ mean. Moreover, while orders, rules and regulations issued by the
President or the executive branch have fixed definitions and meaning in the Administrative Code and
jurisprudence, the phrase ‘executive act’ does not have such specific definition under existing laws.
It should be noted that in the cases cited by the minority, nowhere can it be found that the term
‘executive act’ is confined to the foregoing. Contrarily, the term ‘executive act’ is broad enough to
encompass decisions of administrative bodies and agencies under the executive department which
are subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the
Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel
(CPLC) which was declared unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In
said case, this Court ruled that the concurrent appointment of Elma to these offices is in violation of
Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible offices. Notably,
the appointment of Elma as Chairman of the PCGG and as CPLC is, without a question, an
executive act. Prior to the declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of Elma which cannot just
be set aside or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the invalidity of
the jurisdiction of the military courts over civilians, certain operative facts must be acknowledged to
have existed so as not to trample upon the rights of the accused therein. Relevant thereto, in
Olaguer v. Military Commission No. 34, it was ruled that ‘military tribunals pertain to the Executive
Department of the Government and are simply instrumentalities of the executive power, provided by
the legislature for the President as Commander-in-Chief to aid him in properly commanding the army
and navy and enforcing discipline therein, and utilized under his orders or those of his authorized
military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by
the executive department that are accorded the same status as that of a statute or those which are
quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive
issuances like orders and rules and regulations, said principle can nonetheless be applied, by
analogy, to decisions made by the President or the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to
encompass said decisions of the executive branch. In keeping with the demands of equity, the Court
can apply the operative fact doctrine to acts and consequences that resulted from the reliance not
only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of
the executive branch which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative agencies has to be complied
with because it has the force and effect of law, springing from the powers of the President under the
Constitution and existing laws. Prior to the nullification or recall of said decision, it may have
produced acts and consequences in conformity to and in reliance of said decision, which must be
respected. It is on this score that the operative fact doctrine should be applied to acts and
consequences that resulted from the implementation of the PARC Resolution approving the SDP of
HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise
declared that "for the operative fact doctrine to apply, there must be a ‘legislative or executive
measure,’ meaning a law or executive issuance." Thus, the Court opined there that the operative fact
doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from the
time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The reversal is
not given retroactive effect. This, in essence, is the doctrine of operative fact. There must, however,
be a rule or ruling issued by the Commissioner that is relied upon by the taxpayer in good faith. A
mere administrative practice, not formalized into a rule or ruling, will not suffice because such a mere
administrative practice may not be uniformly and consistently applied. An administrative practice, if
not formalized as a rule or ruling, will not be known to the general public and can be availed of only
by those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related
issuances were executive acts. The DAP itself, as a policy, transcended a merely administrative
1avv phi1
practice especially after the Executive, through the DBM, implemented it by issuing various
memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments made
available to the different agencies and departments was consistently applied throughout the entire
Executive. With the Executive, through the DBM, being in charge of the third phase of the budget
cycle – the budget execution phase, the President could legitimately adopt a policy like the DAP by
virtue of his primary responsibility as the Chief Executive of directing the national economy towards
growth and development. This is simply because savings could and should be determined only
during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the
Executive to finance the PAPs that were not covered in the GAA, or that did not have proper
appropriation covers, as well as to augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted an operative fact that
produced consequences in the real as well as juristic worlds of the Government and the Nation is to
be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the
offices under it and elsewhere as the recipients could be required to undo everything that they had
implemented in good faith under the DAP. That scenario would be enormously burdensome for the
Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive results that enhanced the economic welfare
of the country. To count the positive results may be impossible, but the visible ones, like public
infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms
and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical
undoing of such worthy results by destruction, and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact
does not always apply, and is not always the consequence of every declaration of constitutional
invalidity. It can be invoked only in situations where the nullification of the effects of what used to be
a valid law would result in inequity and injustice;212but where no such result would ensue, the general
rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the
PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of
the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there
are concrete findings of good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and
DECLARES the following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for being
in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of
powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year and without complying with the statutory definition
of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations
of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue targets for
non-compliance with the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
G.R. No. 176278 June 25, 2010
ALAN F. PAGUIA, Petitioner,

vs.
OFFICE OF THE PRESIDENT, SECRETARY OF FOREIGN AFFAIRS, and HON. HILARIO
DAVIDE, JR. in his capacity as Permanent Representative of the Philippines to the United
Nations, Respondents.
RESOLUTION
CARPIO, J.:
At issue is the power of Congress to limit the President’s prerogative to nominate ambassadors by
legislating age qualifications despite the constitutional rule limiting Congress’ role in the appointment
of ambassadors to the Commission on Appointments’ confirmation of nominees.1 However, for lack
of a case or controversy grounded on petitioner’s lack of capacity to sue and mootness,2 we dismiss
the petition without reaching the merits, deferring for another day the resolution of the question
raised, novel and fundamental it may be.
Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer, filed this original action for the writ of
certiorari to invalidate President Gloria Macapagal-Arroyo’s nomination of respondent former Chief
Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent Representative to the United
Nations (UN) for violation of Section 23 of Republic Act No. 7157 (RA 7157), the Philippine Foreign
Service Act of 1991. Petitioner argues that respondent Davide’s age at that time of his nomination in
March 2006, 70, disqualifies him from holding his post. Petitioner grounds his argument on Section
23 of RA 7157 pegging the mandatory retirement age of all officers and employees of the
Department of Foreign Affairs (DFA) at 65.3 Petitioner theorizes that Section 23 imposes an absolute
rule for all DFA employees, career or non-career; thus, respondent Davide’s entry into the DFA
ranks discriminates against the rest of the DFA officials and employees.
In their separate Comments, respondent Davide, the Office of the President, and the Secretary of
Foreign Affairs (respondents) raise threshold issues against the petition. First, they question
petitioner’s standing to bring this suit because of his indefinite suspension from the practice of
law.4 Second, the Office of the President and the Secretary of Foreign Affairs (public respondents)
argue that neither petitioner’s citizenship nor his taxpayer status vests him with standing to question
respondent Davide’s appointment because petitioner remains without personal and substantial
interest in the outcome of a suit which does not involve the taxing power of the state or the illegal
disbursement of public funds. Third, public respondents question the propriety of this petition,
contending that this suit is in truth a petition for quo warranto which can only be filed by a contender
for the office in question.
On the eligibility of respondent Davide, respondents counter that Section 23’s mandated retirement
age applies only to career diplomats, excluding from its ambit non-career appointees such as
respondent Davide.
The petition presents no case or controversy for petitioner’s lack of capacity to sue and mootness.
First. Petitioner’s citizenship and taxpayer status do not clothe him with standing to bring this suit.
We have granted access to citizen’s suits on the narrowest of ground: when they raise issues of
"transcendental" importance calling for urgent resolution.5 Three factors are relevant in our
determination to allow third party suits so we can reach and resolve the merits of the crucial issues
raised – the character of funds or assets involved in the controversy, a clear disregard of
constitutional or statutory prohibition, and the lack of any other party with a more direct and specific
interest to bring the suit.6 None of petitioner’s allegations comes close to any of these parameters.
Indeed, implicit in a petition seeking a judicial interpretation of a statutory provision on the retirement
of government personnel occasioned by its seemingly ambiguous crafting is the admission that a
"clear disregard of constitutional or statutory prohibition" is absent. Further, the DFA is not devoid of
personnel with "more direct and specific interest to bring the suit." Career ambassadors forced to
leave the service at the mandated retirement age unquestionably hold interest far more substantial
and personal than petitioner’s generalized interest as a citizen in ensuring enforcement of the law. 1av vphi1
The same conclusion holds true for petitioner’s invocation of his taxpayer status. Taxpayers’
contributions to the state’s coffers entitle them to question appropriations for expenditures which are
claimed to be unconstitutional or illegal.7 However, the salaries and benefits respondent Davide
received commensurate to his diplomatic rank are fixed by law and other executive issuances, the
funding for which was included in the appropriations for the DFA’s total expenditures contained in
the annual budgets Congress passed since respondent Davide’s nomination. Having assumed office
under color of authority (appointment), respondent Davide is at least a de facto officer entitled to
draw salary,8 negating petitioner’s claim of "illegal expenditure of scarce public funds."9
Second. An incapacity to bring legal actions peculiar to petitioner also obtains. Petitioner’s
suspension from the practice of law bars him from performing "any activity, in or out of court, which
requires the application of law, legal procedure, knowledge, training and experience."10 Certainly,
preparing a petition raising carefully crafted arguments on equal protection grounds and employing
highly legalistic rules of statutory construction to parse Section 23 of RA 7157 falls within the
proscribed conduct.
Third. A supervening event has rendered this case academic and the relief prayed for moot.
Respondent Davide resigned his post at the UN on 1 April 2010.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
G.R. No. 159085 February 3, 2004
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA,

represented by REP. RENATO MAGTUBO petitioners,
vs
EXECUTIVE SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR.
GEN. HERMOGENES EBDANE, respondents.
x------------------------x
G.R. No. 159103 February 3, 2004
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA,

ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D.
MAPILE, petitioners,
vs
HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE
SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and
HON. SECRETARY JOSE LINA, JR., respondents.
x------------------------x
G.R. No. 159185 February 3, 2004
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP.
HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-SANTOS,
and REP. GEORGILU R. YUMUL-HERMIDA, petitioners,
vs
PRESIDENT GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G.
ROMULO, respondents.
x------------------------x
G.R. No. 159196 February 3, 2004
AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner,

vs
SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO
REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF
OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents.
DECISION
TINGA, J.:
They came in the middle of the night. Armed with high-powered ammunitions and explosives, some
three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed
into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing
the corruption in the AFP, the soldiers demanded, among other things, the resignation of the
President, the Secretary of Defense and the Chief of the Philippine National Police (PNP).1
In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427
and General Order No. 4, both declaring "a state of rebellion" and calling out the Armed Forces to
suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to the Government
certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and
depriving the President of the Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised
Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported,
abetted and aided by known and unknown leaders, conspirators and plotters in the government
service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may
call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by

law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a
state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII
of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police
to immediately carry out the necessary actions and measures to suppress and quell the rebellion
with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL
POLICE TO SUPPRESS REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to the Government
certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and
depriving the President of the Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under Article 134 et seq. of the
Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported,
abetted and aided by known and unknown leaders, conspirators and plotters in the government
service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines, may
call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by

the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the
armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do
hereby call upon the Armed Forces of the Philippines and the Philippine National Police to suppress
and quell the rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine
National Police and the officers and men of the Armed Forces of the Philippines and the Philippine
National Police to immediately carry out the necessary and appropriate actions and measures to
suppress and quell the rebellion with due regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations,
the soldiers agreed to return to barracks. The President, however, did not immediately lift the
declaration of a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was
declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of
Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the
Constitution, the Armed Forces of the Philippines and the Philippine National Police were directed to
suppress and quell the rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively
suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of

the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the validity of Proclamation
No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),2 party-list organizations
Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution
does not require the declaration of a state of rebellion to call out the armed forces.3 They further
submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual
basis for the proclamation by the President of a state of rebellion for an indefinite period.4
Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) are
officers/members of the Social Justice Society (SJS), "Filipino citizens, taxpayers, law professors
and bar reviewers."5 Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution
does not authorize the declaration of a state of rebellion.6 They contend that the declaration is a
"constitutional anomaly" that "confuses, confounds and misleads" because "[o]verzealous public
officers, acting pursuant to such proclamation or general order, are liable to violate the constitutional
right of private citizens."7 Petitioners also submit that the proclamation is a circumvention of the
report requirement under the same Section 18, Article VII, commanding the President to submit a
report to Congress within 48 hours from the proclamation of martial law.8 Finally, they contend that
the presidential issuances cannot be construed as an exercise of emergency powers as Congress
has not delegated any such power to the President.9
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary
Romulo), petitioners brought suit as citizens and as Members of the House of Representatives
whose rights, powers and functions were allegedly affected by the declaration of a state of
rebellion.10 Petitioners do not challenge the power of the President to call out the Armed
Forces.11 They argue, however, that the declaration of a state of rebellion is a "superfluity," and is
actually an exercise of emergency powers.12 Such exercise, it is contended, amounts to a usurpation
of the power of Congress granted by Section 23 (2), Article VI of the Constitution.13
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential
issuances as "an unwarranted, illegal and abusive exercise of a martial law power that has no basis
under the Constitution."14 In the main, petitioner fears that the declaration of a state of rebellion
"opens the door to the unconstitutional implementation of warrantless arrests" for the crime of
rebellion.15
Required to comment, the Solicitor General argues that the petitions have been rendered moot by
the lifting of the declaration.16 In addition, the Solicitor General questions the standing of the
petitioners to bring suit.17
The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring
that the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not
adjudicate moot cases, judicial power being limited to the determination of
"actual controversies."18 Nevertheless, courts will decide a question, otherwise moot, if it is "capable
of repetition yet evading review."19 The case at bar is one such case.
Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP
and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On
that occasion, "'an angry and violent mob armed with explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons' assaulted and attempted to break into Malacañang."20 Petitions
were filed before this Court assailing the validity of the President's declaration. Five days after such
declaration, however, the President lifted the same. The mootness of the petitions in Lacson v.
Perez and accompanying cases21 precluded this Court from addressing the constitutionality of the
declaration.
To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the
validity of the declaration of a state of rebellion in the exercise of the President's calling out power,
the mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to
challenge the subject issuances. In Philippine Constitution Association v. Enriquez,22 this Court
recognized that:
To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion by the
President is tantamount to an exercise of Congress' emergency powers, thus impairing the
lawmakers' legislative powers. Petitioners also maintain that the declaration is a subterfuge
to avoid congressional scrutiny into the President's exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus
standi to bring suit. "Legal standing" or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged…. The gist of the question of
standing is whether a party alleges "such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions."23
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their programs,

petitioners are committed to assert, defend, protect, uphold, and promote the rights,
interests, and welfare of the people, especially the poor and marginalized classes and
sectors of Philippine society. Petitioners are committed to defend and assert human rights,
including political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in the
exercise of their Constitutional rights to peaceably assemble and their freedom of speech
and of expression under Section 4, Article III of the 1987 Constitution, as a vehicle to
publicly ventilate their grievances and legitimate demands and to mobilize public opinion to
support the same.24 [Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino,
whose standing this Court rejected in Lacson v. Perez:
… petitioner has not demonstrated any injury to itself which would justify the resort to the
Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be
threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and
supporters are being threatened with warrantless arrest and detention for the crime of
rebellion. Every action must be brought in the name of the party whose legal rights has been
invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that it[']s right to freedom of expression and freedom of assembly is affected by the
declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to
the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5
[1], Article VIII of the Constitution limits the original jurisdiction of the court to cases affecting
ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.25
Even assuming that petitioners are "people's organizations," this status would not vest them with the
requisite personality to question the validity of the presidential issuances, as this Court made clear
in Kilosbayan v. Morato:26
The Constitution provides that "the State shall respect the role of independent people's
organizations to enable the people to pursue and protect, within the democratic framework,
their legitimate and collective interests and aspirations through peaceful and lawful means,"
that their right to "effective and reasonable participation at all levels of social, political, and
economic decision-making shall not be abridged." (Art. XIII, §§15-16)
These provisions have not changed the traditional rule that only real parties in interest or
those with standing, as the case may be, may invoke the judicial power. The jurisdiction of
this Court, even in cases involving constitutional questions, is limited by the "case and
controversy" requirement of Art. VIII, §5. This requirement lies at the very heart of the judicial
function. It is what differentiates decisionmaking in the courts from decisionmaking in the
political departments of the government and bars the bringing of suits by just any party.27
That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them
with standing. A taxpayer may bring suit where the act complained of directly involves the illegal
disbursement of public funds derived from taxation.28 No such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question only when he can show
that he has personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the challenged action; and the injury is
likely to be redressed by a favorable action.29Again, no such injury is alleged in this case.
Even granting these petitioners have standing on the ground that the issues they raise are of
transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution does not require the
President to make a declaration of a state of rebellion. Section 18, Article VII provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis for the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a "sequence" of "graduated

power[s]."30 From the most to the least benign, these are: the calling out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the
exercise of the latter two powers, the Constitution requires the concurrence of two conditions,
namely, an actual invasion or rebellion, and that public safety requires the exercise of such
power.31 However, as we observed in Integrated Bar of the Philippines v. Zamora,32 "[t]hese
conditions are not required in the exercise of the calling out power. The only criterion is that
'whenever it becomes necessary,' the President may call the armed forces 'to prevent or suppress
lawless violence, invasion or rebellion.'"
Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President
from declaring a state of rebellion. Note that the Constitution vests the President not only
with Commander-in-Chief powers but, first and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: "The executive power shall be vested
in the President…." As if by exposition, Section 17 of the same Article provides: "He shall ensure
that the laws be faithfully executed." The provisions trace their history to the Constitution of the
United States.
The specific provisions of the U.S. Constitution granting the U.S. President executive and
commander-in-chief powers have remained in their original simple form since the Philadelphia
Constitution of 1776, Article II of which states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United States of
America . . . .
....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United
States. . . .
....
Section 3. … he shall take care that the laws be faithfully executed…. [Article II – Executive
Power]
Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as
juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the
prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the
Executive Power and Commander-in-Chief provisions, as well as the presidential oath of office, the
President serves as Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign
Relations and Chief of Public Opinion.33
First to find definitive new piers for the authority of the Chief of State, as the protector of the people,
was President Andrew Jackson. Coming to office by virtue of a political revolution, Jackson, as
President not only kept faith with the people by driving the patricians from power. Old Hickory, as he
was fondly called, was the first President to champion the indissolubility of the Union by defeating
South Carolina's nullification effort.34
The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from
South Carolina. Its State Legislature ordered an election for a convention, whose members quickly
passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional,
prohibited South Carolina citizens from obeying them after a certain date in 1833, and threatened
secession if the Federal Government sought to oppose the tariff laws. The Legislature then
implemented the Ordinance with bristling punitive laws aimed at any who sought to pay or collect
customs duties.35
Jackson bided his time. His task of enforcement would not be easy. Technically, the President might
send troops into a State only if the Governor called for help to suppress an insurrection, which would
not occur in the instance. The President could also send troops to see to it that the laws enacted by
Congress were faithfully executed. But these laws were aimed at individual citizens, and provided no
enforcement machinery against violation by a State. Jackson prepared to ask Congress for a force
bill.36
In a letter to a friend, the President gave the essence of his position. He wrote: ". . . when a faction in
a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of
the people composing this Union have a perfect right to coerce them to obedience." Then in a
Proclamation he issued on December 10, 1832, he called upon South Carolinians to realize that
there could be no peaceable interference with the execution of the laws, and dared them, "disunion
by armed force is treason. Are you ready to incur its guilt?"37
The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures
began to adopt resolutions of agreement, and the President announced that the national voice from
Maine on the north to Louisiana on the south had declared nullification and accession "confined to
contempt and infamy."38
No other President entered office faced with problems so formidable, and enfeebled by personal and
political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the President's power broad and that of Congress explicit and restricted, and
sought some source of executive power not failed by misuse or wrecked by sabotage. He seized
upon the President's designation by the Constitution as Commander-in-Chief, coupled it to the
executive power provision — and joined them as "the war power" which authorized him to do many
things beyond the competence of Congress.39
Lincoln embraced the Jackson concept of the President's independent power and duty under his
oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared
that "the Executive found the duty of employing the war power in defense of the government forced
upon him. He could not but perform the duty or surrender the existence of the Government . . . ."
This concept began as a transition device, to be validated by Congress when it assembled. In less
than two-years, it grew into an independent power under which he felt authorized to suspend the
privilege of the writ of habeas corpus, issue the Emancipation Proclamation, and restore reoccupied
States.40
Lincoln's Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the
proclamation, would be to recapture forts, places and property, taking care "to avoid any
devastation, any destruction of or interference with property, or any disturbance of peaceful
citizens."41
Early in 1863, the U.S. Supreme Court approved President Lincoln's report to use the war powers
without the benefit of Congress. The decision was handed in the celebrated Prize Cases42 which
involved suits attacking the President's right to legally institute a blockade. Although his
Proclamation was subsequently validated by Congress, the claimants contended that under
international law, a blockade could be instituted only as a measure of war under the sovereign power
of the State. Since under the Constitution only Congress is exclusively empowered to declare war, it
is only that body that could impose a blockade and all prizes seized before the legislative declaration
were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincoln's right to act as he had.43
In the course of time, the U.S. President's power to call out armed forces and suspend the privilege
of the writ of habeas corpus without prior legislative approval, in case of invasion, insurrection, or
rebellion came to be recognized and accepted. The United States introduced the expanded
presidential powers in the Philippines through the Philippine Bill of 1902.44 The use of the power was
put to judicial test and this Court held that the case raised a political question and said that it is
beyond its province to inquire into the exercise of the power.45 Later, the grant of the power was
incorporated in the 1935 Constitution.46
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the
trustee of all the people. Guided by the maxim that "Public office is a public trust," which he practiced
during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who
defied a court injunction. The injunction banned all picketing and distribution of handbills. For leading
the strikes and violating the injunction, Debs, who was the union president, was convicted of
contempt of court. Brought to the Supreme Court, the principal issue was by what authority of the
Constitution or statute had the President to send troops without the request of the Governor of the
State.47
In In Re: Eugene Debs, et al,48 the Supreme Court upheld the contempt conviction. It ruled that it is
not the government's province to mix in merely individual present controversies. Still, so it went on,
"whenever wrongs complained of are such as affect the public at large, and are in respect of matters
which by the Constitution are entrusted to the care of the Nation and concerning which the Nation
owes the duty to all citizens of securing to them their common rights, then the mere fact that the
Government has no pecuniary interest in the controversy is not sufficient to exclude it from the
Courts, or prevent it from taking measures therein to fully discharge those constitutional
duties."49 Thus, Cleveland's course had the Court's attest.
Taking off from President Cleveland, President Theodore Roosevelt launched what political
scientists dub the "stewardship theory." Calling himself "the steward of the people," he felt that the
executive power "was limited only by the specific restrictions and prohibitions appearing in the
Constitution, or impleaded by Congress under its constitutional powers."50
The most far-reaching extension of presidential power "T.R." ever undertook to employ was his plan
to occupy and operate Pennsylvania's coal mines under his authority as Commander-in-Chief. In the
issue, he found means other than force to end the 1902 hard-coal strike, but he had made detailed
plans to use his power as Commander-in-Chief to wrest the mines from the stubborn operators, so
that coal production would begin again.51
Eventually, the power of the State to intervene in and even take over the operation of vital utilities in
the public interest was accepted. In the Philippines, this led to the incorporation of Section 6,52 Article
XIII of the 1935 Constitution, which was later carried over with modifications in Section 7,53 Article
XIV of the 1973 Constitution, and thereafter in Section 18,54 Article XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers
are broad enough as it is and become more so when taken together with the provision on executive
power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips
the occupant with the means to address exigencies or threats which undermine the very existence of
government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes,
proposed that the Philippine President was vested with residual power and that this is even greater
than that of the U.S. President. She attributed this distinction to the "unitary and highly centralized"
nature of the Philippine government. She noted that, "There is no counterpart of the several states of
the American union which have reserved powers under the United States constitution." Elaborating
on the constitutional basis for her argument, she wrote:
…. The [1935] Philippine [C]onstitution establishes the three departments of the government
in this manner: "The legislative power shall be vested in a Congress of the Philippines which
shall consist of a Senate and a House of Representatives." "The executive power shall be
vested in a President of the Philippines." The judicial powers shall be vested in one Supreme
Court and in such inferior courts as may be provided by law." These provisions not only
establish a separation of powers by actual division but also confer plenary legislative,
executive, and judicial powers. For as the Supreme Court of the Philippines pointed out
in Ocampo v. Cabangis, "a grant of legislative power means a grant of all the legislative
power; and a grant of the judicial power means a grant of all the judicial power which may be
exercised under the government." If this is true of the legislative power which is exercised by
two chambers with a combined membership [at that time] of more than 120 and of the
judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately
apply to the executive power which is vested in one official – the president. He personifies
the executive branch. There is a unity in the executive branch absent from the two other
branches of government. The president is not the chief of many executives. He is the
executive. His direction of the executive branch can be more immediate and direct than the
United States president because he is given by express provision of the constitution control
over all executive departments, bureaus and offices.55
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the
framers of which, early on, arrived at a general opinion in favor of a strong Executive in the
Philippines."56 Since then, reeling from the aftermath of martial law, our most recent Charter has
restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the
President's powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the
Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the President's
… unstated residual powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.57 [Underscoring supplied. Italics in the original.]
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers.
Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may
be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised
Administrative Code of 1987, which states:
SEC. 4. Proclamations. – Acts of the President fixing a date or declaring a status or condition
of public moment or interest, upon the existence of which the operation of a specific law
or regulation is made to depend, shall be promulgated in proclamations which shall have
the force of an executive order. [Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of
rebellion is an utter superfluity.58 At most, it only gives notice to the nation that such a state exists
and that the armed forces may be called to prevent or suppress it.59 Perhaps the declaration may
wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this
Court's mandate is to probe only into the legal consequences of the declaration. This Court finds that
such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed
not written.
Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General
Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration
of a state of rebellion cannot diminish or violate constitutionally protected rights.60 Indeed, if a state of
martial law does not suspend the operation of the Constitution or automatically suspend the privilege
of the writ of habeas corpus,61 then it is with more reason that a simple declaration of a state of
rebellion could not bring about these conditions.62 At any rate, the presidential issuances themselves
call for the suppression of the rebellion "with due regard to constitutional rights."
For the same reasons, apprehensions that the military and police authorities may resort to
warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court held
that "[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests
of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court,63 if
the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a 'state of rebellion.'"64 In other words, a person may be subjected to a warrantless
arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so
long as the requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power. While the Court may examine whether the
power was exercised within constitutional limits or in a manner constituting grave abuse of
discretion, none of the petitioners here have, by way of proof, supported their assertion that the
President acted without factual basis.65
The argument that the declaration of a state of rebellion amounts to a declaration of martial law and,
therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that
military tribunals have replaced civil courts in the "theater of war" or that military authorities have
taken over the functions of civil government. There is no allegation of curtailment of civil or political
rights. There is no indication that the President has exercised judicial and legislative powers. In
short, there is no illustration that the President has attempted to exercise or has exercised martial
law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect exercise of
emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2),
Article VI of the Constitution:
Sec. 23. (1) ….
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
The petitions do not cite a specific instance where the President has attempted to or has exercised
powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in
declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of
her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested
on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers
contemplated by Section 23 (2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED.
SO ORDERED.
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT
CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos,Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE

PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National
President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,

AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive

Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty
to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on
behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as
citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C.
Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the
Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and
several others,31in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen

and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited

political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law would
authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from conception.35
• The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH
Law violates the constitutional guarantee respecting religion as it authorizes the use of public
funds for the procurement of contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is included in the constitutional
mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest
test" to justify the regulation of the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail
of the practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government
program that promotes contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce contraceptives that
would effectively reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the RH
Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way
of family planning. The petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution.
It is contended that the RH Law providing for mandatory reproductive health education
intrudes upon their constitutional right to raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative authority.

The petitioners question the delegation by Congress to the FDA of the power to determine
whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI
of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
(OSG) which commented on the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano
was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was
provided that "no drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development.70 Thus, on
August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.
The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny,
be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to make sure that they
have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has
no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1
of the Constitution which expressly provides:
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions raised
by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-
AD) was put in question, it was argued that the Court has no authority to pass upon the issues
raised as there was yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press
and peaceful assembly are but component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of
the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.121
One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and where,
as here, the persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life

Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that
the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not
be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna
Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to
prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such
as the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination of
23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from

Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To
adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization,
not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained
but that instance of implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as

"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary
effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176Citing various studies on the matter, the petitioners
posit that the risk of developing breast and cervical cancer is greatly increased in women who use
oral contraceptives as compared to women who never use them. They point out that the risk is
decreased when the use of contraceptives is discontinued. Further, it is contended that the use of
combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk
of myocardial infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory, the
OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181
A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-executing provisions.182 In Manila
Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when,
or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of
R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements
are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman
that the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since
the sale, distribution and dispensation of contraceptive drugs and devices will still require the
prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards
to ensure the public that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the
Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The
DOH shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section
9 that ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third sentence
concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:

1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and

The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against
his free will.199
The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer -
and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys
on the matter, they highlight the changing stand of the Catholic Church on contraception throughout
the years and note the general acceptance of the benefits of contraceptives by its followers in
planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect. Generally, the
1âw phi1
State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the
country.
Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe
in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same
case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The purpose
of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case
of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]
In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's

organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the
RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it
was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to
be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?
Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means.234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant
health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without
prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and
survivors shall be provided with comprehensive health services that include psychosocial,
therapeutic, medical, and legal interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical
norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls.
In addition, healthy lifestyle activities are encouraged and promoted through programs and
projects as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an atmosphere
of morality and rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested:
"the forced referral clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above principles
are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention
of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State should see to
it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where
the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family.
It does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation
of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and whether
they will contradict the religious beliefs of the petitioners and validate their apprehensions. Thus,
considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of developing
the youth and their important role in nation building.253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule
10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its judgment should an actual case
be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
service provider." They argue that confusion further results since Section 7 only makes reference to
a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It
is unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference
to the context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they
are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are
broad enough to include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as
follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The public deserves
no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members,
as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a
truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right
altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and nongovernment
reproductive healthcare service providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or is found to
be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may
not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government
under the annual General Appropriations Act, other special laws, pertinent executive orders,
and those wholly or partially funded from foreign sources, are not covered under this Section,
except in those cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services. [Emphases
supplied]
The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments.274 Except for the
express and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot
serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to
modem methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless
of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic
Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to
refer a patient not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to another health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and
void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been
herein declared as constitutional.
SO ORDERED.
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano
Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence
to an indeterminate penalty of from five years and six months of prision correccional to seven years,
six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in November, 1936. This court, on November 24, 1936, denied the
petition subsequently filed by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the court of origin for execution of
the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia

social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made
to apply only to the provinces of the Philippines; it nowhere states that it is to be
made applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of general application, it is
also true that Act No. 4221 is not a law of general application because it is made to
apply only to those provinces in which the respective provincial boards shall have
provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an Insular
Probation Officer willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to
the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation
on June 28, 1937, it became final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime
for which he was convicted by final judgment of this court, which finding is not only presumptuous
but without foundation in fact and in law, and is furthermore in contempt of this court and a violation
of the respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary
course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the
Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for
the further reason that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted
delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and
the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.
(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court
of First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance
has assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive
the trial court of its jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the authority and dignity of the trial
court which court while sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory
for the reason that the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of fifteen days, which motion
the trial court was able to resolve in view of the restraining order improvidently and
erroneously issued by this court. lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when he
presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the
writ of certiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could
lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an opportunity to correct or cure
the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation will
be closed from the moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed
out of time but was admitted by resolution of this court and filed anew on November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent Mariano
Cu Unjieng and in denying said application assumed the task not only of considering the merits of
the application, but of passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental questions
raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12
C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to that
court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908],
214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here — a point we do not now have to decide — we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised
for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the constitutional question here — a point we
do not now have to decide — we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:
. . . the state is a proper party — indeed, the proper party — to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for
the proposition merely that executive officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon them by a statute, on the
ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has
not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is held void by the courts
in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary
whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of crime in the City of Manila have
applied for probation; that some of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been
at large for a period of about four years since his first conviction. All wait the decision of this court on
the constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207
N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327;
133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support
of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid
because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside
a statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature as well. "The question
of the validity of every statute is first determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have
taken an oath to support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to
the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said
bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question of propriety
for him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation
of legislative power and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like
the President of the United States, to pardon a person before the facts of the case were fully brought
to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide,
Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention
of "commutation" and of the power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., ,
and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number
of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced
to imprisonment by a district court has begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised
a form of probation either, by suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the
House. In 1920, the judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference
to its treatment of those convicted of violations of its criminal laws in harmony with that of the
states of the Union. At the present time every state has a probation law, and in all but twelve
states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration
have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and
the constitutionality of the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been
assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts — particularly the trial courts — large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted
form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when
a convict shall become insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws
is more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing
a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful
for the legislature to vest in the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In
re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am.
St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga.,
509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones the judgment of the
court temporarily or indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon reaches
both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is
as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence
in certain cases after conviction, — a power inherent in such courts at common law, which
was understood when the constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court shall have found
that the probationer has complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody — subject to the control of the probation officer and of
the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the criminal
law, which binds and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for
this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in support of their contention that the power
to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We have examined that case and found
that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand, and reprieve and commutation
of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the Governor to
grant reprieves is settled by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme
Court of Montana had under consideration the validity of the adult probation law of the state enacted
in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at
the time our Constitution was adopted, and no one of them was intended to comprehend the
suspension of the execution of the judgment as that phrase is employed in sections 12078-
12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed.,
640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of
the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49
Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,
563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section
12078 has been determined; but the same objections have been urged against parole
statutes which vest the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558,
reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of
legislative power?
Under the constitutional system, the powers of government are distributed among three coordinate
and substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.
The power to make laws — the legislative power — is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape
its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality
or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12 C.
J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R.
A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution
of the Philippines provides that "The National Assembly may by law authorize the President, subject
to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or
export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces.
They are the agents or delegates of the legislature in this respect. The rules governing delegation of
legislative power to administrative and executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a variety of cases on delegation of power
to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence of a standard or rule of action
— or the sufficiency thereof — in the statute, to aid the delegate in exercising the granted discretion.
In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson
Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not find any and none
has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all that
it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language —
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, — limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when — the provincial
boards may appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it
is declared that the power of suspending the laws, or the execution of the laws, ought never
to be exercised but by the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the
same should be held void and of no effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the sovereign
and absolute power resides in the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general principle from the English bill
of rights and inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of England. It
is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit
of our constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like circumstances are
exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to
the owner of domestic animals wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature could not confer that
power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order;
and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment
. . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different circumstances.
"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced within the ordinary
powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local concern in the hands of local
authorities or for the people of small communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general, and as regards the general subject
of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further restrained under our
system than by the express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35
Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision thereof,
and on many constitutional power, like the police power, taxation and eminent domain. The equal
protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of
the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.)
Of course, what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S.,
28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],
147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56
Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different
situations suggested show, indeed, that while inequality may result in the application of the law and
in the conferment of the benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such denial. A
law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo
vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation officer of a given year — and have probation
during that year — and thereafter decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S.,
150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.) lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the equal protection of the laws was
the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature
itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the
next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and
the courts will resort to elimination only where an unconstitutional provision is interjected into
a statute otherwise valid, and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by the process.
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in
Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated
the well-established rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is
valid, the valid portion, if separable from the valid, may stand and be enforced. But in order
to do this, the valid portion must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E.,
798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no
legal force or efficacy for any purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section
what would be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without
a probation officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that the conditions which are imposed
by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or
elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall
remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses
caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of probation.
Under section 4, it is only after the period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be
heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said probationers at
least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be appointed by
the Governor-General with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out
of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under civil service
regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are
clearly not those probation officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law
may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is.
But much as has been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose — not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do
not think it is seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not lower than
that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.
Probation as a development of a modern penology is a commendable system. Probation laws have

been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and
their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity
for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United
States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are
forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental
law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined to adopt the line of action which in
our opinion, is supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the United
States and the dual character of the American Government is a situation which does not
obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to
the Federal Government of the United States is not the situation of the province with respect
to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view
existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.
G.R. No. L-46267 November 28, 1938
FRANCISCO ZANDUETA, petitioner,

vs.
SIXTO DE LA COSTA, respondent.
Vicente J. Francisco and Francisco Zandueta for petitioner.

Solicitor-General Ozaeta and Ramon Diokno for respondent.
VILLA-REAL, J.:
This is a quo warranto proceeding instituted by the Honorable Francisco Zandueta against the
Honorable Sixto de la Costa to obtain from this court a judgment declaring the respondent to be
illegally occupying the office of Judge of the Fifth Branch of the Court of First Instance of Manila,
Fourth Judicial District, ousting him from said office, and holding that the petitioner is entitled to
continue occupying the office in question by placing him in possession thereof, with costs to said
respondent.
Prior to the promulgation of Commonwealth Act No. 145, the petitioner, the Honorable Francisco
Zandueta was discharging the office of judge of first instance, Ninth Judicial District, comprising
solely the City of Manila, and was presiding over the Fifth Branch of the Court of First Instance of
said city, by virtue of an ad interim appointment issued by the President of the Philippines in his
favor on June 2, 1936, and confirmed by the Commission on Appointments of the National Assembly
on September 8th of the same year.
On November 7, 1936, the date on which Commonwealth Act No. 145, otherwise known as
the Judicial Reorganization Law, took effect, the petitioner received from the President of the
Commonwealth a new ad interimappointment as judge of first instance, this time of the Fourth
Judicial District, with authority to preside over the Courts of First Instance of Manila and Palawan,
issued in accordance with said Act. As the National Assembly adjourned on November 20,
1937, without its Commission on Appointments having acted on said ad interimappointment,
another ad interim appointment to the same office was issued in favor of said petitioner, pursuant to
which he took a new oath on November 22, 1937, before discharging the duties thereof. After
his appointment and qualification as judge of first instance of the Fourth Judicial District, the
petitioner, acting as executive judge, performed several executive acts, some of which consist in the
designation of the assistant clerk of the Court of First Instance of Manila, Ladislao Pasicolan, as
administrative officer, under the orders of the petitioner, as executive judge of said court, to take
charge of all matters pertaining to the Court of First Instance of Palawan, which are handled by said
execute judge in Manila (Exhibit 2); in the appointment of attorney Rufo M. San Juan as notary
public for the Province of Palawan, said appointment to expire on December 31, 1938 (Exhibit 3); in
having authorized justice of the peace Iñigo R. Peña to defend a criminal case the hearing of which
had begun during the past sessions in Coron, Palawan (Exhibit 5); in having granted a leave of
absence of ten days to justice of the peace Abordo (of Puerto Princesa), Palawan (Exhibit 8); and in
having granted a leave of absence of thirteen days to the justice of the peace of Coron, Palawan
(Exhibit 9).
On May 19, 1938, the Commission on Appointments of the National Assembly disapproved the
aforesaid ad interimappointment of said petitioner, who was advised thereof by the Secretary of
Justice on the 20th of said month and year.
On August 1, 1938, the President of the Philippines appointed the herein respondent, Honorable
Sixto de la Costa, judge of first instance of the Fourth Judicial District, with authority to preside over
the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of Palawan,
and his appointment was approved by the Commission on Appointments of the National Assembly.
By virtue of said appointment, the respondent took the necessary oath and assumed office. On the
same date, August 1, 1938, the President of the Philippines, pursuant to said appointment of judge
of first instance of the Fourth Judicial District and after confirmation thereof, issued the
corresponding final appointment in favor of the respondent, Honorable Sixto de la Costa (Exhibit 11).
The respondent, in answer to the petition, admits some of the facts alleged therein and denies the
rest, and alleges, as one of his special defenses, that the petitioner is estopped from attacking the
constitutionality of Commonwealth Act No. 145, for having accepted his new appointment as judge
of first instance of the Fourth Judicial District, issued by virtue thereof, to preside over the Courts of
First Instance of Manila and Palawan, and for having taken the necessary oath, entering into the
discharge of the functions of his office and performing judicial as well as administrative acts.
The defense of estoppel being procedural, we shall discuss it first to determine whether or not the
petitioner may proceed to question the constitutionality of the law by virtue of which the new ad
interim appointment of judge of first instance of the Fourth Judicial District, to preside over the
Courts of First Instance of Manila and Palawan, was issued in his favor.
As stated beforehand, while the petitioner Honorable Francisco Zandueta was presiding over the
Fifth Branch of the Court of First Instance of Manila, Ninth Judicial District, by virtue of an
appointment issued to him on June 2, 1936, and confirmed by the National Assembly on September
8th of the same year, he received, on November 7, 1936, a new ad interim appointment,
issued in accordance with the provisions of Commonwealth Act No. 145, which took effect on the
same date, to discharge the office of judge of first instance, Fourth Judicial District, with authority to
preside over the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance
of Palawan, upon which he immediately took the corresponding oath and entered into the discharge
of his office. Under his former appointment of June 2, 1936, the petitioner had authority preside
solely over the Fifth Branch of the Court of First Instance of Manila but not over the Court of First
Instance of Palawan, while, according to his new appointment of November 7, 1936, he had
authority to preside not only over said Fifth Branch of said Court of First Instance of Manila but also
over the Court of First Instance of Palawan. It should be noted that the territory over which the
petitioner could exercise and did exercise jurisdiction by virtue of his last appointment is wider than
that over which he could exercise and did exercise jurisdiction by virtue of the former. Hence, there
is incompatibility between the two appointments and, consequently, in the discharge of the office
conferred by each of them, resulting in the absorption of the former by the latter. In accepting this
appointment and qualifying for the exercise of the functions of the office conferred by it, by taking the
necessary oath, and in discharging the same, disposing of both judicial and administrative cases
corresponding to the courts of First Instance of Manila and of Palawan, the petitioner abandoned his
appointment of June 2, 1936, and ceased in the exercise of the functions of the office occupied by
him by virtue thereof.
The rule of equity, sanctioned by jurisprudence, is that when a public official voluntarily accepts an
appointment to an office newly created or reorganized by law, — which new office is incompatible
with the one formerly occupied by him — , qualifies for the discharge of the functions thereof by
taking the necessary oath, and enters into the performance of his duties by executing acts inherent
in said newly created or reorganized office and receiving the corresponding salary, he will be
considered to have abandoned the office he was occupying by virtue of his former appointment (46
Corpus Juris, 947, sec. 55), and he can not question the constitutionality of the law by virtue of which
he was last appointed (11 American Jurisprudence, 166, par. 121; id., 767, par. 123). He is excepted
from said rule only when his non-acceptance of the new appointment may affect public interest or
when he is compelled to accept it by reason of legal exigencies (11 American Jurisprudence, 770,
par. 124). lawphi1.net
In the case under consideration, the petitioner was free to accept or not the ad interim appointment
issued by the President of the Commonwealth in his favor, in accordance with said Commonwealth
Act No. 145. Nothing or nobody compelled him to do so. While the office of judge of first instance of
public interest, being one of the means employed by the Government to carry out one of its
purposes, which is the administration of justice, considering the organization of the courts of justice
in the Philippines and the creation of the positions of judges-at-large or substitutes, the temporary
disability of a judge may be immediately remedied without detriment to the smooth running of the
judicial machinery. If the petitioner believed, as he now seems to believe, that Commonwealth Act
No. 145 is unconstitutional, he should have refused to accept the appointment offered him or, at
least, he should have accepted it with reservation, had he believed that his duty of obedience to the
laws compelled him to do so, and afterwards resort to the power entrusted with the final
determination of the question whether a law is unconstitutional or not. The petitioner, being aware of
his constitutional and legal rights and obligations, by implied order of the law (art. 2, Civil Code),
accepted the office of judge of first instance of the Fourth Judicial District, with authority to preside
over the Fifth Branch of the Court of First Instance of Manila and the Court of First Instance of
Palawan and entered into the performance of the duties inherent therein, after taking the necessary
oath, thereby acting with full knowledge that if he voluntarily accepted the office to which he was
appointed, he would later be estopped from questioning the validity of said appointment by alleging
that the law, by virtue of which his appointment was issued, is unconstitutional. He likewise knew, or
at least he should know, that his ad interim appointment was subject to the approval of the
Commission on Appointments of the National Assembly and that if said commission were to
disapprove the same, it would become ineffective and he would cease discharging the office.
It appears from all the foregoing that the petitioner having voluntarily abandoned his appointment of
June 2, 1936, and, consequently, the office of judge of first instance of Manila, Ninth Judicial District,
whose Fifth Branch was being presided over by him by virtue thereof, upon accepting the ad
interim appointment of November 7, 1936, to the office of judge of first instance of the Fourth
Judicial District, with authority to preside over said Fifth Branch of the Court of First Instance of
Manila together with the Court of First Instance of Palawan, and entering into the discharge of the
functions of said office, he can not now claim to be entitled to repossess the office occupied by him
under his said appointment of June 2, 1936 (22 R. C. L., 560, par. 264), or question the
constitutionality of Commonwealth Act No. 145, by virtue of which he has been appointed judge of
first instance of the Fourth Judicial District, with authority to preside over the Fifth Branch of the
Court of First Instance of Manila and the Court of First Instance of Palawan, which appointment was
disapproved by the Commission on Appointments of the National Assembly.
Having arrived at the conclusion that the petitioner is estopped by his own act from proceeding to
question the constitutionality of Commonwealth Act No. 145, by virtue of which he was appointed, by
accepting said appointment and entering into the performance of the duties appertaining to the office
conferred therein, and pursuant to the well settled doctrine established by both American and
Philippine jurisprudence relative to the consideration of constitutional questions, this court deems it
unnecessary to decide the questions constitutional law raised in the petition (Cruz vs. Youngberg, 56
Phil., 234; Walter E. Olsen and Co. vs. Aldanese and Trinidad, 43 Phil., 259; Yangco vs. Board of
Public Utility Commissioner, 36 Phil., 116; Government of the Philippine Islands vs. Municipality of
Binañgonan, 34 Phil., 518; McGirr vs. Hamilton and Abreu, 30 Phil., 563; 12 Corpus Juris, 699,
section 40; id., 780, section 212).
For the foregoing considerations, we are of the opinion and so hold when a judge of first instance,
presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid
appointment, accepts another appointment to preside over the same branch of the same Court of
First Instance, in addition to another court of the same category, both of which belong to a new
judicial district formed by the addition of another Court of First Instance to the old one, enters into the
discharge of the functions of his new office and receives the corresponding salary, he abandons his
old office and cannot claim to be to repossess it or question the constitutionality of the law by virtue
of which his new appointment has been issued; and, said new appointment having been
disapproved by the Commission on Appointments of the National Assembly, neither can he claim to
continue occupying the office conferred upon him by said new appointment, having ipso jure ceased
in the discharge of the functions thereof.
Wherefore, the petition for quo warranto instituted is denied and the same is dismissed with costs to
the petitioner. So ordered.

Chapter II - Judicial Review

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Chapter II - Judicial Review

Загружено:

Авторское право:

Доступные форматы

G.R. No.

147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,

ANGELO REYES, Secretary of National Defense, ET AL., respondents.

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,

SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA,

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,

G.R. No. 147780

G.R. No. 147781

G.R. No. 147799

G.R. No. 147810

Vitug, separate opinion.

Kapunan, dissenting opinion.

Pardo, join the dissent of J. Kapunan.

Sandoval-Gutierrez, dissenting opinion.

Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,

ANGELO REYES, Secretary of National Defense, ET AL., respondents.

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,

ANGELO REYES, Secretary of National Defense, ET AL., respondents.

RONALDO A. LUMBAO, petitioner,

SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA,

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,

Presidential Proclamation No. 38

DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION

City of Manila, May 1, 2001.

The President likewise issued General Order No. 1 which reads:

GENERAL ORDER NO. 1

City of Manila, May 1, 2001.

FERNAN C.J., concurring and dissenting:

GUTIERREZ, JR., J., concurring and dissenting opinion

CRUZ, J., concurring and dissenting:

FELICIANO, J., concurring and dissenting:

WHEREFORE, I vote as follows:

(1) Give DUE COURSE to and GRANT the petitions;

3 G.R. No. 147810, for Certiorari and Prohibition.

4 G.R. No. 147785, for Habeas Corpus.

5 G.R. No. 147787, for Habeas Corpus.

6 G.R. No. 147781, for Mandamus.

7 G.R. No. 147818, for Injunction.

8 G.R. No. 147819, for Certiorari and Mandamus.

10 Constitution, Article III, Section 1.

11 Constitution, Article III, Section 4.

12 Constitution, Article III, Section 2.

13 G.R. No. 141284, supra.

14 See Yick Wo vs. Hopkins, 118 U.S. 356.

15 Id., at Article VII, Section 18.

16 People vs. Burgos, 144 SCRA 1, 14 (1986).

17 187 SCRA 311 (1990).

19 187 SCRA 311, 318, 321, 323-24. (1990).

21 16 Phil 516 (1910).

23 G.R. No. 147785.

24 121 SCRA 472 (1983).